Ashu Kamboj v Polyseal Waterproofing Victoria Pty Ltd

[2014] FWC 2910

[2014] FWC 2910

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ashu Kamboj
v
Polyseal Waterproofing Victoria Pty Ltd
(U2013/17721)

COMMISSIONER CRIBB MELBOURNE, 9 MAY 2014

Application for relief from unfair dismissal - jurisdiction - extension of time.

[1] This decision concerns an application by Mr Ashu Kamboj (the applicant), under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy in respect of his dismissal by Polyseal Waterproofing Victoria Pty Ltd (Polyseal, the respondent, the company). The application was lodged on 23 December 2013.

[2] A conciliation conference was listed for 12 February 2014 but could not take place. The respondent lodged a jurisdictional objection, on 19 February 2014, on the grounds that the application was out of time. The hearing of the extension of time application took place on Friday 21 March 2014.

[3] This decision deals with the extension of time application only.

Statutory framework

[4] The statutory framework for the making of an application for an unfair dismissal remedy is set out in the section 394(2) of the Act as follows:

“(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).”

[5] Section 394(3) provides:

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[6] I will deal with each of these factors contained in s.394(3) in turn.

[7] During the hearing, Mr Kamboj and Mr Louie Perri (State Manager for the company), gave evidence. In addition, written and oral submissions were provided to the Commission by both parties. In dealing with each of the factors set out in s.394(3), relevant witness evidence and submissions will be summarised for each factor.

[8] This is a different application for an extension of time from usual because Mr Kamboj made an initial unfair dismissal application on 4 June 2013 (which was out of time). The extension of time application was heard by the Fair Work Commission on 27 September 2013 with the decision reserved. 1 On 23 November 2013, Mr Kamboj withdrew the application.2

[9] A second unfair dismissalapplication was lodged by Mr Kamboj on 23 December 2013. It was common ground that Mr Kamboj resigned on 9 May 2013. 3 However, it was argued by Mr Kamboj that he was constructively dismissed.4 Mr Kamboj received, whilst at the company’s office on 14 May 2013, a letter signed by the company’s Contract Administrator/Estimator.5 The letter was dated 14 May 2013 and stated that Mr Kamboj’s employment was terminated as of 9 May 2013, due to a shortage of work.6 As the last day of Mr Kamboj’s employment was 9 May 2013, whether due to his resignation or an unauthorised letter from the company, the application was lodged 207 days after the statutory time limit.

1. Reasons for the delay - s.394(3)(a)

(a) Mr Kamboj

[10] Mr Kamboj submitted that there were a number of reasons for the delay. For the period from 9 May 2013 to 4 June 2013 (date of lodgement of the first application), it was argued that the delay was the result of representative error on the part of the Construction, Forestry, Mining and Energy Union (CFMEU). 7 It was contended that, on 21 May 2013, Mr Kamboj sought advice in relation to his dismissal and alleged underpayment issues from the union.8 He explained that he had given the union representative all of the documentation (pay slips, time sheets etc). Mr Kamboj recalled that the union representative had telephoned Mr Perri and talked to him about his situation.9 Mr Perri had requested that he call him to discuss the outstanding issues - which he did on 27 May 2013. However, the issues were not resolved.10 It was also stated by Mr Kamboj that the union representative had not directed him to the CFMEU’s legal department when he should have. Rather, he was put on the wrong track - underpayment of wages and entitlements.11

[11] Mr Kamboj recounted that he had then started to research his situation. 12 He had gone on to prepare and then lodge his (first) application on 3 June 2013. The application was the subject of conciliation then an extension of time hearing on 27 September 2013. The decision was reserved. It was explained by Mr Kamboj that, on 17 November 2013, he had sent Mr Perri a text message asking if he could see him. He met with Mr Perri on 18 November 2013 and recalled Mr Perri confirming that a job was still available for him.13 However, Mr Perri told him that reinstatement was conditional on him withdrawing his application. Mr Kamboj recounted that he was concerned about this request but did send a Notice of Discontinuance withdrawing his application, on 24 November 2013.14 Mr Perri received confirmation of this on 25 November 2013 after which, the next day, Mr Kamboj recalled texting Mr Perri. He stated that he had asked if he could come in the next day for reinstatement.15 Mr Perri was said to have responded that he would not be available for a week. A week later, it was recalled that Mr Perri had texted him and said that he had to go to Sydney but that he should call him the next day.16 Mr Kamboj explained that he had then rung and emailed both Mr Perri and the Operations Manager without a response.17

[12] In respect of the emails tendered by Mr Kamboj 18 in support of his contention that there was an agreement that he would be reinstated, it was conceded by Mr Kamboj, during cross examination, that there was nothing in the emails that indicated that he was going to be reinstated.19

[13] On 10 December 2013, Mr Kamboj indicated that he had received an email request from Mr Perri that he come and see him. During the meeting, it was recalled by Mr Kamboj that Mr Perri had placed a second condition on being reinstated. This was said to be that he had to sign a statutory declaration to the effect that his underpayment claim and his unfair dismissal claim were false. 20 Mr Kamboj said that he refused to do that with the end result of the meeting being no job.21 It was recalled that he had then contacted the Managing Director on 18 December 2013. The outcome of the contact was that the Managing Director was unable to support his claim as the agreement between himself and Mr Perri was not in writing.22 It was stated that he had lodged his second claim on 23 December 2013.

[14] It was explained by Mr Kamboj that, between the extension of time hearing (on 27 September 2013) and 18 November 2013 (when there was an agreement about a job), he had looked for jobs. 23 He said that he had not travelled to India during this period and said that he had his passports here if anyone wanted to see them.24 It was also denied by Mr Kamboj that he had told Mr Perri that he had been travelling overseas during that time.25

(b) Polyseal

[15] It was submitted on behalf of the company that the applicant has not attempted to explain the exceptional delay of 207 days. 26 Further, it was stated that Mr Kamboj had informed Mr Perri at the meeting, on 18 November 2013, that he was on a three month holiday in India prior to making the second application.27 Mr Perri explained that he had asked Mr Kamboj where he had been as he had not heard from him for a long time. He had thought this was unusual given the amount of communication previously. He recalled that, following the extension of time hearing on 27 September 2013, there had been no contact from Mr Kamboj until he met with him on 18 November 2013.28 The company contended that Mr Kamboj had not established that there are exceptional circumstances for the delay. This was said weigh against the exercise of discretion by the Commission.29

[16] In his witness statement and oral evidence, Mr Perri indicated that he had received a series of texts from the applicant in mid November 2013, requesting an appointment to see him. 30 It was Mr Perri’s oral evidence that, in terms of the email dated 9/10 December 2013,31 he could not explain the context of that email. He said that there had not been a conversation between himself and Mr Kamboj about a statutory declaration.32 Mr Perri denied that he had asked Mr Kamboj to sign a statutory declaration.33

[17] Mr Perri stated that, on 18 November 2013, he met with the applicant as the applicant wished to discuss the possibility of being employed by the respondent due to not finding alternative employment. He stated that he had made a mistake in his statement and that the meeting was on 18 November 2013 rather than 27 November 2013 as set out in his witness statement. 34 It was explained that, during the meeting, the applicant had told him that he had been on holiday in India since the hearing and that he had not sought alternative employment. Further, it was said that the applicant had offered to withdraw his unfair dismissal application if Mr Perri would provide him a neutral reference. Mr Perri’s statement and oral evidence was that he had agreed to provide the applicant with a neutral reference.35

[18] It was acknowledged by Mr Perri that Mr Kamboj had subsequently sent him a text indicating that he would need a reference. 36 In terms of the text message he received from Mr Kamboj on 3 December 2013 asking Mr Perri to let him know if he was going to reinstate him,37 Mr Perri said that there had been no agreement about reinstatement. He recalled that the only time reinstatement was mentioned was during without prejudice discussions at the Commission - which Mr Kamboj had refused.38 It was stated that, every time he and Mr Kamboj spoke, it was about a reference and not reinstatement. Mr Perri acknowledged that that the text messages did not refer to a reference. He also said that he was unsure as to why Mr Kamboj had been contacting him. This was because, during their numerous discussions, he had made it very clear that there was no reinstatement Mr Perri denied requesting that Mr Kamboj sign a statutory declaration to the effect that his unfair dismissal and the payment claims were false.39

[19] Further, Mr Perri’s statement and his oral evidence indicated that, on 10 December 2013, Mr Kamboj had told him that he wanted to return to his old position. Mr Perri had informed the applicant that there was no position for him and that five employees had been made redundant since his resignation. It was stated that Mr Kamboj had then become upset so he had reiterated his offer that he would provide a neutral reference if asked. 40

(c) Considerations

[20] For the period up to 4 June 2013, Mr Kamboj has argued that there was representative error on the part of the CFMEU. The period from then until 24 September 2013 was explained as being taken up with the conciliation and extension of time hearing for the first application. From 24 September 2013 until 23 December 2013, Mr Kamboj contends that he was not in India during that period, that he was actively looking for work and that, as of 18 November 2013, he and Mr Perri had an agreement that he would be reinstated on the condition he withdraw his unfair dismissal application.

[21] For his part, Mr Perri held the view that there was never an agreement to reinstate Mr Kamboj. Rather, the agreement was to provide a neutral reference if requested. In addition, it was Mr Perri’s recollection that Mr Kamboj had told him, during the meeting on 18 November 2013, that the reason the company had not heard from him was because he had been away in India on holiday.

[22] I have carefully considered the evidence and material before me. For the period up to 24 September 2013, I accept Mr Kamboj’s reasons for the delay (representative error and the Fair Work Commission’s processes in respect of the first application - conciliation and a hearing). I accept that, between 24 September 2013 and 18 November 2013, Mr Kamboj was not overseas in India. He offered his passports for inspection during the hearing but the offer was not taken up by the company. Therefore, on the balance of probabilities, I have formed the view that Mr Kamboj was not in India but was, as he contended, looking for work.

[23] With respect to whether or not Mr Perri offered Mr Kamboj a job, during the meeting on 18 November 2013, I prefer Mr Kamboj’s evidence on this issue. The text messages between Mr Kamboj and Mr Perri 41 and the emails between Mr Kamboj and Mr Perri (the genuineness of which was verified by the company during the hearing)42 appear to corroborate Mr Kamboj’s version of events.

[24] Further, I prefer Mr Kamboj’s evidence that reinstatement was firstly, conditional on the withdrawal of his first unfair dismissal application and then, later, on signing a statutory declaration stating that his underpayment claim and unfair dismissal claim were false. The emails and text messages between Mr Kamboj and Mr Perry support Mr Kamboj’s version of events. Therefore, I find that an agreement was reached between Mr Kamboj and Mr Perri, on 18 November 2013, that Mr Kamboj would be reinstated. I also find that conditions were placed on Mr Kamboj’s reinstatement - that he withdraw his first unfair dismissal application and secondly, later, that he sign a statutory declaration to the effect that his underpayment and unfair dismissal claims were false.

[25] During the period between the meeting on 18 November 2013 and 23 December 2013, it would seem that Mr Kamboj put a great deal of effort into trying to get the company to honour the agreement that was reached between himself and Mr Perri. When it became clear to Mr Kamboj that the company was not going to reinstate him, he lodged another unfair dismissal application.

[26] Therefore, I am satisfied that Mr Kamboj has provided an acceptable reason for the delay in lodging his application.

2. Section 394(3)(b) - first became aware of the dismissal

(a) Mr Kamboj

[27] It was argued by Mr Kamboj that he first became aware that his employment was terminated on 9 May 2013, when he received the letter of termination from the company dated 14 May 2013. Mr Kamboj submitted that he first became aware of the dismissal four days after it had taken effect. 43

(b) Polyseal

[28] The company submitted that the applicant had resigned on 9 May 2013 by way of a text message and a written letter of resignation. This was said to have been confirmed by the applicant during the first hearing on 24 September 2013 and also this hearing. 44

(c) Considerations

[29] The issue of whether Mr Kamboj resigned or was terminated by the company is dealt with fully later in this decision. 45 In the basis set out later, I find that Mr Kamboj was advised on 14 May 2013 that he had been dismissed with effect from 9 May 2013. This is notwithstanding that he had resigned by text message and letter on 9 May 2013. Therefore, I further find that Mr Kamboj first became aware of his dismissal five days after it took effect.

3. Section 394(3)(c) - any action taken to dispute the dismissal

(a) Mr Kamboj

[30] It was stated by Mr Kamboj that, on 21 May 2013, he had gone to see his CFMEU representative and had shown him the documentation and spoken to him about his pay and his dismissal. 46 He explained that the union representative did not direct him to the union’s legal department. Rather, he had set him off on the wrong track - underpayment of wages and entitlements. At the same time, Mr Kamboj recalled that he had found out about unfair dismissal claims and had lodged an (the first) application.47

[31] Mr Kamboj recounted that he had telephoned Mr Perri about the alleged underpayments and the termination letter on 27 May 2013. 48 It was common ground that Mr Kamboj had raised issues about alleged underpayments with the company.49

(b) Polyseal

[32] The company submitted that the only action taken to dispute the dismissal is the application itself. 50 Further, it was said that the applicant has claimed that he sought legal advice prior to lodging the second application. However, it was stated that no evidence of this has been provided and also that the applicant is self represented.51

[33] In addition, it was contended that the applicant has provided no evidence that he disputed his resignation with the respondent, prior to lodging either of his applications. 52 This was said to weigh against the granting of the applicant’s extension of time application.53

(c) Considerations

[34] It would seem from the evidence before me that, prior to lodging the first application, Mr Kamboj went to his union representative for assistance in challenging both his alleged underpayment and his resignation/dismissal. Between lodging the first application and then the second application, following the probable agreement about reinstatement, Mr Kamboj was persistent in his efforts to ensure that Mr Perri delivered his end of the bargain.

[35] Therefore, in terms of the first application, it would seem that Mr Kamboj challenged both the alleged underpayments and his resignation/dismissal. In the period between the two applications, Mr Kamboj was in active contact with the company.

4. Section 394(3)(d) - prejudice to the employer

(a) Mr Kamboj

[36] Mr Kamboj submitted that there was no prejudice to the employer as he had worked with honesty, loyalty and fairness. However, he said that the company did not do the right thing. 54

(b) Polyseal

[37] It was argued by the company that the prejudice to the employer caused by Mr Kamboj’s delay is quite severe. 55 Ms Lademann stated that the company had already gone through an extension of time hearing in regards to Mr Kamboj’s first application. Mr Kamboj had then withdrawn the application. However, the employer then had to engage a solicitor to prepare submissions and defend this second application. It was noted that the applicant had resigned ten months ago.56

[38] In addition, it was submitted that over the lengthy period of delay, the employer’s business had moved on during that time. It was said that the business had suffered a downturn with five employees having been made redundant and that they had not been replaced. 57 Therefore, reinstatement of Mr Kamboj is extremely impractical as there is no opportunity for him to be employed by the company.58

[39] Finally, the Commission was referred to an authority where an extension of time had not been granted in a situation where the applicant had discontinued a previous application. 59

(c) Considerations

[40] Mr Kamboj’s reason for lodging the second application appears to be because Mr Perri did not fulfil the agreement that was likely reached between himself and Mr Kamboj on 18 November 2013. However, it is also noted that the company has already been required to participate in an extension of time hearing in respect of Mr Kamboj’s first application.

[41] Therefore, there is prejudice to the company on the basis that Mr Kamboj’s resignation/dismissal occurred 12 months ago.

5. Section 394(3)(e) - merits of the application

[42] It was argued by the company that the applicant’s case has no merit. This is on the basis that:

• The applicant resigned; and



• The respondent had never put the applicant on notice that he may have been prepared to offer reinstatement to him around the time of his resignation. 60

[43] The evidence and finding concerning the second issue (alleged offer of reinstatement) has been set out in paragraphs 11 - 24 above. It is not necessary to repeat them here.

[44] However, the issue of Mr Kamboj’s resignation/termination has not been discussed and so will be now.

Resignation/termination

(a) Mr Kamboj

[45] It was submitted, on behalf of Mr Kamboj, that the date of the termination of employment was 9 May 2013 and had received a letter of termination from the respondent, on 14 May 2013, stating that his employment was terminated effective 9 May 2013. 61

[46] It was further argued that, if the Commission finds that the applicant resigned, it was said to be a constructive dismissal. 62 The constructive dismissal was said to be due to:

• The respondent failing to pay the applicant in accordance with the terms of the enterprise agreement;



• Unilaterally altering the applicant’s terms of employment such that he was no longer working on a full time basis;



• The failure to provide safety shoes to the applicant and to remedy this situation; and



• The failure to keep confidential a complaint made by the applicant. 63

[47] Mr Kamboj gave evidence that he resigned on 9 May 2013 due to stress, depression and sleeplessness arising from the Operations Manager’s conduct towards him. He explained that he had set all of this out in his letter of resignation. 64

[48] It was stated by Mr Kamboj that he met with Mr Perri on 14 May 2013 as Mr Perri had wanted to have a final chat with him. Mr Kamboj recounted that, during the meeting with Mr Perri, Mr Perri had told him that his resignation on 9 May 2013 had not been accepted and that he was instead terminated. Prior to the Office Manager giving him the termination letter, it was said that Mr Perri had left the office for an important meeting. 65

(b) Polyseal

[49] In Mr Perri’s statement, it was indicated that the applicant had insisted on speaking with him in his office on 14 May 2013. The applicant had told him that he wanted to take a break from his employment and had resigned. As he had another meeting to attend, he had advised the applicant to speak to the Contract Administration/Estimator, to manage the necessary paperwork for Centrelink. 66 Mr Perri’s statement also said that he did not authorise the Contract Administration/Estimator to prepare or provide the applicant with the letter dated 14 May 2013 that he was given.67

[50] Mr Perri’s oral evidence was that:

• When Mr Kamboj came to the office on 14 May 2013, he needed a separation certificate which he had not yet been provide with;



• His instructions to Clare were to provide Mr Kamboj with the information he required; and



• He did not authorise Clare to provide Mr Kamboj with a redundancy letter because he was not redundant. 68

[51] It was explained that, when employees are made redundant, Clare provides them with all the appropriate documentation (a departure pack). Mr Perri was definite that he did not think that Clare was preparing a departure pack for Mr Kamboj. He said that she has never signed any redundancy letters and is not authorised to do so. 69 The normal process when an employee resigns was said to be that they will be given a separation certificate and final pay slip. This was confirmed to be Clare’s responsibility, on instructions from Mr Perri.70 It was agreed by Mr Perri that, even though the company’s submissions indicate that that termination letter was unsigned, the letter was signed by Clare.71

[52] Mr Perri recounted that the understanding was that Mr Kamboj was coming into the office on 14 May 2013 for an exit interview at Mr Perri’s request and to pick up his paperwork. When he left to go to his meeting, Mr Perri said that he had instructed Clare to prepare Mr Kamboj’s paperwork and give it to him. 72

(c) Considerations

[53] The Commission has before it a letter dated 14 May 2013, signed on behalf of the company, stating that Mr Kamboj was dismissed effective 9 May 2013. It was Mr Kamboj’s evidence that, during the meeting with Mr Perri on 14 May 2013, Mr Perri had not accepted his resignation and had told him that he was instead terminated.

[54] Mr Perri’s evidence, on the other hand, was that Mr Kamboj had told him that he wanted to take a break from his employment and had resigned. Mr Perri’s explanation for the letter was that he had had to leave the office to go to a meeting and had instructed Clare to prepare the paperwork from Mr Kamboj. His position was that the letter was unauthorised as he had not told Clare to prepare that type of letter (as the applicant had resigned) and also as she was not authorised to sign such letters on behalf of the company.

[55] The letter of 14 May 2013 is unambiguous and provides documentary support for Mr Kamboj’s version of events. Further, Mr Perri’s evidence could be described as disingenuous in terms of the reasons he gave for the letter having been provided to Mr Kamboj. In addition, Clare was not called as a witness to give corroborating evidence on his behalf.

[56] Therefore, I find that the letter is neither incorrect nor unauthorised. This is on the basis that, despite Mr Kamboj’s letter of resignation of 9 May 2013, I accept that he was advised, on 14 May 2013, that his employment was terminated by the company with effect from 9 May 2013.

[57] Accordingly, I find that the application is not without merit.

6. Section 394(3)(f) - fairness as between the applicant and other persons in a similar position

[58] This factor is not relevant in this matter.

7. Section 394(3) - are there exceptional circumstances?

[59] It was submitted on behalf of the company that there were no exceptional circumstances which would justify the exercise of the Commission’s discretion to grant the extension of time application. Further, it was argued that Mr Kamboj had not provided any reasons as to the exceptional circumstances. 73

[60] In the written submissions provided by Mr Kamboj (for the first application), it was argued that representative error where the applicant is blameless provides a basis for an extension of time. 74 It was Mr Kamboj’s contention that the circumstances were beyond his control and that the delay was not because of his faults.75

Considerations

[61] The basis on which it is decided if the Commission’s discretion should be exercised to grant an extension of time is whether there are “exceptional circumstances” taking into account the factors considered in paragraphs 10 to 58 above.

[62] The term “exceptional circumstances” has been considered in a number of decisions of Fair Work Australia. A Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 76 summarised various decisions which dealt with the meaning of “exceptional circumstances”. The Full Bench found that:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 77

[63] I respectfully adopt this approach.

[64] Taking account of all of the factors set out in section 394(3) of the Act, I find that there are exceptional circumstances such that I should exercise my discretion and grant an extension of time. The situation that Mr Kamboj found himself in can be described as “out of the ordinary, unusual, special or uncommon.”

[65] Mr Kamboj was dismissed (after having resigned) effective 9 May 2013. He lodged the first unfair dismissal application on 4 June 2013. The application was the subject of conciliation and then an extension of time hearing, in the Fair Work Commission, on 27 September 2013. On 18 November 2013, Mr Kamboj and Mr Perri reached agreement about Mr Kamboj’s reinstatement. This was conditional on Mr Kamboj withdrawing his unfair dismissal application. This Mr Kamboj did on 24 November 2013. However, Mr Kamboj was not reinstated by the company despite repeated attempts by him to make that happen. On 10 December 2013, Mr Perri added a further condition to a job for Mr Kamboj which was that he sign a statutory declaration to the effect that his underpayment and unfair dismissal claims were false. Mr Kamboj refused and, following unsuccessfully seeking the Managing Director’s assistance in getting reinstated, he filed this application on 24 December 2013.

[66] It is acknowledged that Mr Kamboj’s dismissal/resignation took place 12 months ago which results in clear prejudice to the respondent if an extension of time is granted.

[67] However, I have formed the view that, equally, Mr Kamboj should not be penalised by a non-acceptance of his late application, as the reason for the application is due to the company not honouring the agreement it reached with Mr Kamboj regarding reinstatement. Therefore, on the basis of Mr Kamboj’s situation, outlined in paragraph 65 above and, taking into account the other factors in section 394(3), including that there is a reasonable explanation for the delay and that the application is not without merit, I find that there are exceptional circumstances such that I should exercise my discretion.

[68] Accordingly, Mr Kamboj’s application for an extension of time is granted. The date for lodgement of his application is extended to 24 December 2013.

[69] An order 78 to this effect will be issued separately.

[70] The application will be referred for conciliation.

Appearances:

Mr A Kamboj representing himself

Ms N Lademann of Armstrong Lawyers Pty Ltd for the Respondent

Hearing details:

2014.

Melbourne:

March 21.

 1   Exhibit R1 at paragraphs 6 - 16

 2   Exhibit A2

 3   Exhibit R1 at paragraph 2 and Transcript PN 428

 4   Exhibit A1 at paragraphs 12 - 15

 5   Exhibit R2 at Annexure LP-2

 6   Ibid

 7   Exhibit A1 at paragraphs 21 - 24

 8   Ibid at paragraph 21 and Transcript PN 25

 9   Ibid

 10   Ibid

 11   Transcript PN 37

 12   Ibid PN 25 and 37

 13   Ibid PN 25, 42, 45, 49, 94, 98 - 99 and 151

 14   Ibid PN 25, 42 and 98 and Exhibit A2

 15   Ibid at PN 25 and ibid

 16   Ibid PN 25

 17   Ibid

 18   Exhibit A2

 19   Transcript PN 134 - 149

 20   Ibid PN 25 and 151

 21   Ibid PN 154 - 156

 22   Ibid PN 25, 157 and 547

 23   Ibid PN 50 and 54

 24   Ibid PN 89 - 90

 25   Ibid PN 91 - 92

 26   Ibid PN 184 and Exhibit R1 at paragraph 36

 27   Ibid PN 184 and 256 - 259 and ibid at paragraphs 13 and 36

 28   Ibid PN 257 - 267

 29   Exhibit R1 at paragraph 38

 30   Exhibit R2 at paragraph 7 and Transcript PN 220 - 221

 31   Exhibit A2

 32   Transcript PN 221 - 227

 33   Ibid PN 198 and 219

 34   Exhibit R2 at paragraphs 7 - 8

 35   Ibid at paragraph 10 and Transcript PN 230 - 231

 36   Transcript PN 232

 37   Exhibit R2 at Annexure LP - 3

 38   Transcript PN 233 - 237

 39   Ibid PN 238 - 242

 40   Ibid PN 199 and 251 - 253 and Exhibit R2 at paragraphs 12 - 14

 41   Exhibit R2 at Annexure LP - 3

 42   Exhibit A2

 43   Exhibit A1 at paragraphs 9 - 11 and 21 and Transcript PN 35

 44   Exhibit R2 at Annexure LP - 1 and Exhibit R1 at paragraphs 2 and 32 - 34

 45   At [45] - [56]

 46   Transcript PN 37 and 442 - 446

 47   Ibid PN 25, 37 and 446

 48   Ibid PN 25 and 452-454

 49   Ibid PN 365-369

 50   Exhibit R1 at paragraph 42

 51   Ibid at paragraph 42 and Transcript PN 185

 52   Ibid at paragraph 43 and ibid PN 186

 53   Ibid at paragraph 44 and ibid

 54   Transcript PN 456

 55   Ibid PN 186

 56   Ibid PN 186 and 499 and Exhibit R1 at paragraphs 46 - 47

 57   Ibid PN 186 and ibid at paragraph 48

 58   Ibid PN 187

 59   Exhibit R1 at paragraph 47

 60   Ibid at paragraph 49 - 51

 61   Exhibit A1 at paragraphs 8 - 11

 62   Ibid at paragraph 12

 63   Ibid at paragraph 14

 64   Exhibit R2 at Annexure LP-1 and Transcript PN 25

 65   Transcript PN 25

 66   Exhibit R2 at paragraph 6

 67   Ibid

 68   Transcript PN 200 - 201

 69   Ibid PN 204 - 205

 70   Ibid PN 207 - 211

 71   Ibid PN 273 - 274

 72   Ibid PN 213 - 218

 73   Ibid PN 184 - 185 and Exhibit R1 at paragraph 55

 74   Exhibit A1 at paragraph 9

 75   Transcript PN 468

 76   [2011] FWAFB 975

 77   Ibid at paragraph 13

 78   PR550431

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