Application by Company X

[2020] FWC 5047

[2020] FWC 5047

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.120—Redundancy pay

Application by Company X
(C2020/5193, C2020/5194, C2020/5195, C2020/5196, C2020/5197)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 23 DECEMBER 2020

Variation of redundancy pay.

[1] A software company (applicant) has made applications under s 120(2) of the Fair Work Act 2009 (Cth) (Act) to have the Commission vary the redundancy pay of five former employees. Pursuant to s 120(1)(b)(ii) of the Act, the applicant seeks the Commission reduce the former employees’ redundancy pay to nil on the basis that it cannot pay the amounts.

[2] For the reasons that follow, the applications are dismissed.

The applications

[3] The applicant describes itself as a software company that focuses solely upon the higher education industry. 1 The applicant’s income is said to derive from project work and subscription services provided to universities.2 It contends that university revenue, in particular international student revenue, has drastically reduced on account of the COVID-19 pandemic.3 The applicant says that this has had a devastating impact upon its business with the termination of a major project and clients discontinuing, suspending or reducing contracted work.4 The applicant contends that it is in a precarious financial position with no cash reserves, and this has resulted in the redundancies of the former employees.5 It is further contended that the applicant’s business will be wound up if other opportunities are not secured.6

[4] The respective applications seek to reduce the former employees’ statutory redundancy entitlements to nil on the basis that the applicant cannot pay. 7 The reasons provided in support of the applications are identical. With the consent of the parties, the applications were heard together.

[5] The applicant sought a confidentiality order in respect its materials filed in support of the applications. Specifically that, the former employees do not disclose such material to any other person, and that the material be suppressed from the public record. Pursuant to s 594(1) of the Act, a confidentiality order was made in respect of each application in the terms proposed. The orders were made having regard to the fact that each of the former employees would have access to the relevant materials as it affects their entitlement to redundancy pay, and the applicant is a private company such that its financial information is of a confidential nature and is not publicly available. As a consequence of these orders, the parties have been de-identified in this decision.

Statutory framework

[6] Section 120(1) of the Act requires the determination of two matters. First, whether the former employees are entitled to redundancy pay “because of” s 119 of the Act. 8 Second, whether the applicant cannot pay the redundancy amounts owing to the former employees.9

[7] Section 119 of the Act provides a minimum statutory entitlement to redundancy pay. It does not apply to the termination of an employee’s employment if, immediately before the time of the termination, or at the time when the person was given notice of the termination (whichever happened first):

(a) the employee has had less than 12 months’ continuous service; 10

(b) the employer is a small business, meaning it has fewer than 15 employees calculated at the particular time, being on termination and including the terminated employees; 11 and

(c) as may otherwise be provided by an applicable modern award. 12

[8] Subject to the above exclusions, the amount of redundancy pay is calculated by reference to the employee’s period of continuous service with the employer on termination. 13 Relevantly, if the employer cannot pay the redundancy amount, then the Commission may exercise discretion to reduce the redundancy pay to an amount that the Commission considers appropriate (which may be nil).14

Is there an entitlement to redundancy pay?

[9] The first matter that requires determination is whether the former employees are entitled to redundancy pay “because of” s 119 of the Act. It is not in contest and I am satisfied that the employees were terminated at the applicant’s initiative because the applicant no longer requires the job to be done by anyone.

[10] The exceptions from the obligations to pay redundancy in s 121(1) of the Act do not apply. It is not in dispute that each former employee’s period of continuous service with the applicant exceeded 12 months. 15 Further, the applicant was not a small business employer immediately before the time of each employee’s redundancy, or at the time when the former employees were given notice of their termination by redundancy.16 Each of the former employees are said to be covered by the Professional Employees Award 2020 (Award),17 which refers to the entitlement to redundancy pay as provided in the National Employment Standards and set out in s 119 of the Act.18 The Award does not provide any exclusions to redundancy pay.19

[11] It is not in contest that pursuant to s 119 of the Act, the combined redundancy payment amounts total $61,498.00 as follows: 20

(a) Mr T’s period of continuous service with the applicant was one year and 10 months, which amounts to a redundancy entitlement of four weeks’ pay. Based on Mr T’s hourly rate of pay, Mr T is entitled to a redundancy payment of $7,269.00.

(b) Mr K’s period of continuous service with the applicant was three years and one month, which amounts to a redundancy entitlement of seven weeks’ pay. Based on Mr K’s hourly rate of pay, Mr K is entitled to a redundancy payment of $14,404.00.

(c) Mr G’s period of continuous service with the applicant was three years and 10 months, which amounts to a redundancy entitlement of seven weeks’ pay. Based on Mr G’s hourly rate of pay, Mr G is entitled to a redundancy payment of $16,154.00.

(d) Mr A’s period of continuous service with the applicant was one year and five months, which amounts to a redundancy entitlement of four weeks’ pay. Based on Mr A’s hourly rate of pay, Mr A is entitled to a redundancy payment of $7,868.00.

(e) Mr L’s period of continuous service with the applicant was three years and four months, which amounts to a redundancy entitlement of seven weeks’ pay. Based on Mr L’s hourly rate of pay, Mr L is entitled to a redundancy payment of $15,803.00.

[12] Having regard to the above, I am satisfied that the statutory prerequisite in s 120(1)(a) is met.

Is there an incapacity to pay?

Submissions and evidence

[13] The applicant relies upon the following materials in support of its position that it cannot pay the redundancy amounts owing to the former employees:   

(a) An income schedule for the period 1 January to 30 June 2020.

(b) A cash flow summary for the period 1 January to 30 June 2020.

(c) A projected cash flow summary for the period July and August 2020.

(d) Redacted copies of bank statements for a USD Business Foreign Account and Premium Cheque Account, which identify the account balances as at 1 January and 30 June 2020 (constituting all the applicant’s bank accounts).

(e) A proof of balance statement for the USD Business Foreign Account and Premium Cheque Account as at 21 August 2020.

(f) A balance sheet for the financial year ended 30 June 2020 and as at 21 August 2020.

(g) A profit and loss statement for the 12 months ended 30 June 2020.

(h) A cashflow summary for the financial year ended 30 June 2020.

[14] The documents listed at (a) to (c) and (h) are documents prepared by the applicant. The financial documents listed at (f) and (g) have been prepared and signed by a chartered accountant and subject to the usual caveat that they have been compiled on the basis of the information provided by the applicant, and “no audit or review has been performed and accordingly no assurance is expressed.”

[15] Except for Mr A, each of the employees filed written submissions opposing the application to reduce their respective redundancy entitlements to nil.

[16] Mr T acknowledges that the current financial climate is difficult for the higher education industry, however contends that the applicant has misrepresented its cash position. This is partly informed by Mr T’s view that the applicant continues to pay the wages for its eight staff (although the applicant says that it now employs seven staff), 21 in addition to making a payment in lieu of notice to the former employees.22 Further, Mr T contends that the applicant may be eligible for a research and development (R&D) tax offset. Mr T contends that it is probable that the applicant will secure or recommence project work, although Mr T accepts that these income streams are not guaranteed.23

[17] As to his personal circumstances, Mr T is the sole income earner for his household and has five dependants. He anticipates that there may be challenges in securing new employment in light of the COVID-19 pandemic and therefore his redundancy entitlement is critical to supporting his family. 24

[18] Mr K submits that the applicant’s cashflow position cannot be discerned from the bank statements filed, which only identify the opening and closing balance for the period January and June 2020. 25 Mr K contends that there are inconsistencies between the applicant’s cashflow statement for the period 1 January to 30 June 2020 and profit and loss statement for the financial year ended 30 June 2020, including:26

(a) The cashflow statement identifies the applicant’s consultancy expenses to be $142,769.00. However, the profit and loss statement provides $13,773.48.

(b) The cashflow statement records the salary expense as $816,780.00. However, the profit and loss statement provides $426,270.00.

(c) The cashflow statement records the superannuation expense as $111,306.00. However, the profit and loss statement provides $40,495.68.

[19] Mr K also contends that the applicant is a “positively geared organisation” because its profit and loss statement for the financial years ended June 2019 and 2020 discloses that it profited $890,799.72 and $797,139.53, respectively. Further, Mr K says that the applicant has retained earnings of $2,498,794 as at 21 August 2020. 27

[20] Further, Mr K makes the following observations. Firstly, the amount of $272,117.06 (income in advance) represents the yearly subscription owed to the applicant for its software product. It is said that by 30 June 2021 it will no longer present as a liability for the applicant. 28 Secondly, the $356,780.46 director’s loan is being treated as a secured loan against the applicant’s retained earnings. Thirdly, the applicant is expecting to receive a tax refund of $118,452.83.29 Fourthly, Mr K contends that the applicant’s submission that its current liabilities exceed its current assets means that the applicant is insolvent.30

[21] Mr K was employed by the applicant as an IT Project Manager. He contends that there is a reduced market need for his skillset, and in light of the COVID-19 pandemic securing new employment will be difficult. 31 Mr K has an infant child and his partner is on parental leave. He says that in the absence of any income it will be necessary to seek financial assistance to manage his mortgage and personal loan payments.32

[22] Mr G contends that unless the applicant is insolvent then there is a capacity to pay his redundancy entitlement. Mr G submits other factors which do not support the applicant’s contention that it cannot pay are (1) the financial information relied upon by the applicant discloses inconsistencies (although this submission is not further explained), (2) a salary increase was passed on by the applicant to one of its existing employees, and (3) three employees are said to have resigned since the redundancies were effected meaning that the applicant’s financial position is less strained. 33

[23] Mr G was employed by the applicant as a developer. Mr G submits that at the time his employment was terminated he had accrued approximately 180 hours of personal leave which reflected his commitment to the applicant. Mr G accepts that the applicant has lost business with a major client but contends that this was occasioned by other challenges in managing client expectations and not on account of the COVID-19 pandemic. Mr G says that while the applicant may be experiencing a “cash crunch,” he holds concerns about securing new employment in the current climate and his salary expectations may need to reduce. 34

[24] Mr L contends that any tax relief received by the applicant, including the R&D tax offset should assist the applicant to meet its obligations to pay redundancy. Mr L submits that such relief may yield “350k - $700k returned from the ATO based on annual employee expenses only,” although this estimate is derived from a speculative assessment. 35 Mr L also contends that the applicant has not identified near-term business opportunities, noting that certain university projects are likely to resume before the end of the calendar year. Specifically, Mr L observes that:36

(a) It is likely that before the end of the year an unfinished software project will resume.

(b) The applicant submitted a project tender, although the outcome of the tender is not known.

(c) There may be additional project work with an existing client.

(d) The applicant has developed onboarding technology, which will be profitable once released.

[25] Mr L contends that the financial information provided by the applicant is incomplete. In particular, it is said that the applicant’s bank statements do not list its transactions, and therefore there is no transparency as to how income is managed by the applicant. Mr L submits that the applicant could seek business support including by obtaining a low interest, unsecured loan. 37

[26] Mr L also contends that the following issues arise in the financial information relied upon by the applicant which bear upon the credibility of its material: 38

(a) The profit and loss statement identifies consulting expenses for the financial year ended June 2020 as being $13,773.48. This is less than the consulting expenses recorded in the applicant’s cashflow statement for the period 1 January to 30 June 2020 of $142,769.00. Given the substantial difference between these figures, Mr L submits that the cash flow statement should be treated with caution.

(b) The profit and loss statement provides that the cost for amortisation in the financial year ended June 2019 was $57,375.57, and in the financial year ended June 2020 increased to $431,382.68. Mr L says that the applicant has not provided any information as to the asset being amortised to explain the increase, however it “approximates the director loan on the balance sheet.”

(c) For the financial year ended June 2020, the profit and loss statement provides a salary expense of $426,270.33, which does not correlate with the wages of the 17 staff employed by the applicant for that period. The applicant’s cash flow summary provides that in the period 1 January to 30 June 2020, $816,780.00 was expended on salaries.

(d) The profit and loss statement discloses that the applicant made a profit for the financial years ended June 2019 and 2020, and such income appears to have been distributed to the shareholders.

(e) The profit and loss statement does not support the applicant’s submission during the proceedings that its retained earnings are linked to its software development, which is a fixed asset of the business.

(f) The applicant’s decision to pass on a salary increase to one of its existing employees lends support to a conclusion that “cash is available.”

(g) Mr L shares the view expressed by other former employees, that it is unclear whether the applicant is solvent.

[27] Mr L submits that he has worked a significant amount of unpaid overtime to satisfy the applicant’s project requirements. Mr L says that his redundancy has caused him psychological stress, which is compounded by the COVID-19 pandemic and a difficult job market. 39

[28] The applicant raises the following matters in support of the applications: 40

(a) As at 21 August 2020, the applicant’s current liabilities exceed its current assets by $638,605.00. The applicant says that this illustrates the significance of its poor financial position.

(b) While the applicant’s current assets of $178,001.09 can be liquidated within 12 months, its cash reserve as at 21 August 2020 is $16,291.41. The applicant says that this supports its contention that it does not have available cash to pay the redundancies of the former employees.

(c) The applicant’s retained earnings of $2,466,471.32 does not represent cash. It is said that income earned has been used to “create the main business asset and to pay for all the expenses in running the business.” No dividends have been paid to shareholders from the applicant’s retained earnings.

(d) The applicant’s software development which is valued at $3,073,213.59 is a fixed asset. While the applicant is in a net positive position, its software asset is not liquid.

(e) The applicant has received an unsecured director’s loan of $356,780.46 and government financial assistance of $140,000.00 to support its business. The applicant says that despite this, its business can only be sustained if new work and revenue is generated.

[29] In response to the submissions made concerning the applicant’s cash flow and profit and loss statements, the applicant says that there are no inconsistencies and all information has been prepared in accordance with relevant accounting standards. 41 Specifically, the applicant submits that its cash flow statement identifies receipts and payments made during the stated period, and the profit and loss statement has been prepared on an accrual basis. Further, the applicant says that consulting expenses and salaries paid is not reflected in its profit and loss statement.42 As to amortisation, the applicant says that the useful life of its software was reassessed, and accordingly the amortisation expense was less in the previous financial year. The applicant submits that the amount of the director’s loan has no bearing upon amortisation.43

Consideration

[30] The applicant must satisfy the Commission that it is not “financially competent or possessed of the necessary funds to make the payment, and has no reasonable source of funds.” 44 Accordingly, the applicant’s financial competence is not confined to its cash position. Assessment of financial competence will include consideration of the financial standing of the business, including its assets.45

[31] The applicant filed a cash flow statement for the six-month period ended 30 June 2020. It is contended that there are inconsistencies between this statement and the applicant’s profit and loss statement for the 12-months ended 30 June 2020. I consider that these inconsistencies may be attributed to two matters. First, a comparison is being drawn between different financial periods. Second, the profit and loss statement has been prepared on an accrual basis by “matching the income earned and the expenses incurred.” It includes “not only cash entries but invoices receivable, bills payable and any other appropriate accounting adjustments to reflect true income earned and expenses incurred.” 46 It is not unexpected that there are differences in the amounts recorded between these documents. The profit and loss statement discloses the applicant’s income and corresponding expenses for a specified period (relevantly, the financial year ended 30 June 2020), whereas the cashflow statement provides an overview of the applicant’s cash transactions.

[32] In any case, the cash flow statement has been superseded by a revised statement for the 12-month period ended 30 June 2020. No weight is therefore attributed to the cash flow statement for the six-month period ended 30 June 2020. Having regard to the revised cash flow statement, I accept that the cash flow balance as at 30 June 2020 is broadly consistent with the cash in the applicant’s bank accounts as at that date. 47 This amount reduced to $16,292.41, as recorded in the applicant’s balance sheet and is supported by the applicant’s proof of balance statement for the USD Business Foreign Account and Premium Cheque Account as at 21 August 2020.

[33] While the balance sheet discloses that the applicant’s net asset position is $2,498,794.04, the applicant submits that its software asset is not liquid. It is further submitted that all available liquid assets have been disposed of to generate cash for the business including by discontinuing all utilities at the applicant’s premises and disposing of its vehicles. 48 Having regard to the applicant’s balance sheet for the financial year ended 30 June 2020 and as at 21 August 2020, I accept that the applicant’s software asset is not liquid.49

[34] It is apparent on the evidence that the cash held in the applicant’s bank accounts is insufficient to pay the redundancy amounts owing to the former employees. However, the Commission’s assessment as to whether the applicant cannot pay, as earlier stated, ought not be confined to the applicant’s cash position. 50 I now turn to consider the applicant’s financial competence more broadly.

[35] While the applicant contends that for the period 1 January to 30 June 2020 its income has declined by 38%, 51 the profit and loss statement discloses that the income earned in fees for the financial year ended 30 June 2020 was approximately $109,000 greater than the previous financial year. Further, while the applicant’s bank accounts do not contain the cash equivalent of its net profit after tax of $797,139.53 for the financial year ended 30 June 2020, the applicant says that it has not paid a dividend to its shareholders and “any cash not distributed to shareholders is used in the normal course of running the business.”52 I consider that this evidence supports a finding that the applicant’s net profit is being utilised to facilitate its continued trade.

[36] Further, the applicant has elevated in priority the following commercial debts above the redundancy entitlements presently owing to the former employees: 53

(a) The current liabilities include a loan from the directors of $356,780.46, which is said to have been expended. While it is contended that this liability amount must be settled within 12 months, the applicant’s evidence is that the loan is unsecured 54 and there is no loan agreement which contains an express obligation upon the applicant to repay the loan within such period. On this evidence, I do not accept the director’s loan to be a current liability.

(b) The applicant’s evidence is that it has been paid $272,117.06 income in advance, representing an annual subscription paid by its client(s). The applicant contends that within 12 months it will have delivered the services for which the subscription was paid. It is said that until such services are rendered in full by the applicant, the unearned income is regarded as a currently liability. 55 During the proceedings, the applicant gave evidence that the unearned income has been expended, and this is said to be supported by the fact that it does not hold the cash equivalent in its bank accounts. However, it is apparent that the liability amount reduces as the applicant continues to provide services to its clients. In any case, there is no evidence before the Commission that there exists an immediate obligation upon the applicant to repay any proportion of the unearned income it has received in advance.

[37] I have had regard to the preferential treatment of the above matters in the assessment of the applicant’s financial competence. These matters bear upon the applicant’s contention that it is in a “negative working capital position” because, on its balance sheet, its current liabilities exceed its current assets. 56

[38] Further, I note that despite the applicant’s contention as to its poor financial position, it has elected to pass on a pay increase to an existing employee with the view to preserving its existing workforce. 57 This lends support to the applicant’s continued trading status.

[39] As to the applicant’s future operations, the applicant’s evidence is that its cash reserves and expected government support will enable it to operate until the end of November 2020, following which it “can only survive in the future if new business and revenue is generated.” 58 The applicant submitted that at such time (1) it will have established a viable business model with a sustainable revenue stream, or (2) it will seek a buyer for the business or its software asset, or (3) it will wind up if there is additional financial strain upon the business.59 There is no material before the Commission evidencing that the applicant has ceased trading, or indeed that it has sought a buyer for its business or software asset. This also lends support to the applicant’s continued trading status.

[40] On the basis of a broader assessment of the applicant’s financial competence (rather than a narrow view of its cash position) and having regard to the matters at [35] to [39], I am not persuaded that the applicant is not financially competent noting its continued trading, such that it cannot pay the redundancy amounts within the meaning of s 120(1)(b)(ii). In the circumstances described, the existence of debts and operating expenses does not establish an incapacity to pay.

[41] However, even if I were to conclude that the applicant cannot pay the redundancy amounts in light of its cash position, the granting of relief from the obligation to pay the redundancies of the former employees is an exercise of discretion. I would not exercise such discretion by reason of the circumstances described at [35] to [39]. Further, in the event that the applicant’s continued trade cannot be sustained noting the broad and unparticularised submission as to the possibility of future financial strain, the former employees ought not be prevented by order of the Commission from recovering their redundancy amounts via the Fair Entitlements Guarantee scheme, noting that the applicant’s net asset position is $2,498,794.04.

Conclusion and disposition

[42] For the above reasons and having regard to the conclusions reached, the applications made under s 120(2) of the Act are dismissed.

DEPUTY PRESIDENT

Appearances:

A Director of Company X, for the Applicant.

First, Second, Third, Fourth and Fifth Respondents, on their own behalf.

Hearing details:

2020
Melbourne (by telephone):
September 21, October 28

Final written submissions:

Applicant, 4 November 2020

Respondents, 11 November 2020

Printed by authority of the Commonwealth Government Printer

<PR722935>

 1   Form F45A Applications to vary redundancy pay filed 5 July 2020 (Form F45A) at 2.3; Applicant’s submissions filed on 14 July 2020 (Applicant’s 14 July submissions) p.1

 2   14 July submissions p.2

 3   Form F45A at 2.3; Applicant’s 14 July submissions p.2; Applicant’s submissions filed 16 October 2020 (Applicant’s 16 October 2020 submissions) p.1

 4   Form F45A at 2.3; Applicant’s 14 July submissions p.2

 5   Form F45A at 2.3; Applicant’s 14 July submissions p.2; Applicant’s 16 October 2020 submissions p.3

 6   Form F45A at 2.3; Applicant’s 14 July submissions p.2; Applicant’s 16 October 2020 submissions p.2

 7   Form F45A at 1.5

 8   s 120(1)(a) of the Act

 9   s 120(1)(b)(ii) of the Act

 10   s 121(1)(a) of the Act

 11   ss 23 and 121(1)(b) of the Act

 12   s 121(2) of the Act

 13   s 119 of the Act

 14 s 120(2) of the Act

 15   s 121(1)(a) of the Act

 16   s 121(1)(b) of the Act; Form F45A at 2.3; Applicant’s 14 July submissions p.1

 17 F45A at 1.4

 18   see s 121(2)

 19   clause 28

 20   Applicant’s 14 July submissions p.1

 21   Transcript of 21 September 2020 proceedings at [115]-[118]

 22   Mr T submissions filed 29 July 2020 p.1

 23   Ibid

 24   Ibid

 25   Mr K submissions filed 29 July 2020 (Mr K 29 July 2020 submissions) at [4]

 26   Mr K submissions filed 5 October 2020 (Mr K 5 October 2020 submissions) p.1 at [1]

 27   Mr K 5 October 2020 submissions p.2 at [4] and [5]; Mr K submissions filed 11 November 2020 (Mr K 11 November 2020 submissions) p.2 at [2]

 28   Mr K 5 October 2020 submissions p.2 at [7]; Mr K 11 November 2020 submissions p.2 at [4]

 29   Mr K 5 October 2020 submissions p.2 at [7]; Mr K 11 November 2020 submissions p.2 at [3]

 30   Mr K 5 October 2020 submissions p.2 at [8]

 31   Mr K 29 July 2020 submissions at [1] and [2]

 32   Mr K 29 July 2020 submissions at [3]; Mr K 11 November 2020 submissions p.2 at [8]

 33   Mr G submissions filed 5 October 2020 at [1] and [8]

 34   Mr G submissions filed 29 July 2020

 35   Mr L submissions filed 29 July 2020 (Mr L 29 July 2020 submissions) p.2 at [2]

 36   Ibid p.2 at [3]

 37   Ibid pp.4-5 at [9]

 38   Mr L submissions filed 5 October 2020 at [1.1], Appendix A and Appendix B at [1(c)]

 39   Mr L 29 July 2020 submissions p.3 at [5], [6] and [10]

 40   Applicant’s submissions filed 30 September 2020 (Applicant’s 30 September 2020 submissions) p.1; Applicant’s 16 October 2020 submissions; Applicant’s reply submissions to Mr K filed 16 October 2020; Applicant’s reply submissions to Mr L filed 16 October 2020; Applicant’s submissions filed 4 November 2020 (Applicant’s 4 November 2020 submissions)

 41   Applicant’s reply submissions to Mr K filed 16 October 2020 pp.1 and 2

 42   Applicant’s reply submissions to Mr L filed 16 October 2020 p.1

 43   Ibid p.1 at [(d)(i)(ii)]

 44  Baywood Products Pty Ltd v Mr Mervyn Inall[2010] FWA 9303 at [34]

 45   Company P v D.S. [2014] FWC 4673 at [33]

 46   Applicant’s 4 November 2020 submissions p.2

 47   USD Business Foreign Account and Premium Cheque Account as at 1 January and 30 June 2020

 48   Applicant’s 16 October 2020 submissions p.1

 49   Ibid

 50   see Company P v D.S [2014] FWC 4673 at [33]

 51   Applicant’s 14 July submissions p.2

 52   Applicant’s 4 November 2020 submissions at p.2; see also Applicant’s 30 September 2020 submissions p.1 and Applicant’s reply submissions to Mr L filed 16 October 2020 pp.2 and 3

 53   see Timbercraft Pty Ltd [2011] FWA 6283 at [86]

 54   Applicant’s 16 October 2020 submissions at p.2

 55   Applicant’s 4 November 2020 submissions at p.3

 56   Applicant’s 30 September 2020 submissions p.1; Applicant’s 16 October 2020 submissions at p.1

 57   Transcript of 21 September 2020 proceedings at [42] and [103]

 58   Applicant’s 16 October 2020 submissions p.1

 59   Applicant’s 16 October 2020 submissions p.2; Transcript of 21 September 2020 proceedings at [147]