Australian, Municipal, Administrative, Clerical and Services Union v Commonwealth of Australia (acting through and represented by the Australian Taxation Office)
[2018] FWCFB 1170
•23 FEBRUARY 2018
| [2018] FWCFB 1170 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Australian Municipal, Administrative, Clerical and Services Union
v
Commonwealth of Australia (acting through and represented by the Australian Taxation Office)
(C2018/158)
JUSTICE ROSS, PRESIDENT | MELBOURNE, 23 FEBRUARY 2018 |
Appeal against decision [2017] FWC 6890 of Vice President Catanzariti at Sydney on 20 December 2017 in matters C2017/4701 and C2017/4719 – proper interpretation of an enterprise agreement – objective approach to interpretation – permission to appeal granted – appeal dismissed
[1] The Commonwealth of Australia (represented by the Australian Taxation Office) (ATO) proposes to introduce what is commonly known as “shared accommodation” or “hot desking” at two of its many premises: Gosford and the Docklands. “Shared accommodation” or “hot desking” is an arrangement whereby employees are not assigned a particular desk or work station at which they work each day when they attend the office. Under such an arrangement, employees attend work each day and select one of a range of available work stations to undertake their work duties.
[2] The Australian Services Union (ASU) opposes the introduction of “hot desking” by the ATO and contends that clause 87 of the Australian Taxation Office (ATO) Enterprise Agreement 2017 (Agreement) prohibits the ATO from requiring employees, other than those regularly engaged in field work, to work under a “hot desking” arrangement (Dispute).
[3] On 25 August 2017, the ASU filed an application in the Fair Work Commission (Commission) pursuant to s.739 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with the Dispute. The Community and Public Sector Union (CPSU) filed a similar application in the Commission. Vice President Catanzariti arbitrated the Dispute and determined that clause 87 of the Agreement does not prohibit the ATO from requiring employees, other than those regularly engaged in field work, to work under a “hot desking” arrangement (Decision). 1 The ASU has appealed the Decision. No such appeal has been lodged by the CPSU.
[4] The Vice President’s task at first instance was to consider the proper construction of the relevant clauses of the Agreement, including the rights and obligations they conferred and imposed on the ATO and the employees covered by the Agreement, and then to consider whether the ATO’s proposed conduct accorded with those rights and obligations. 2 It follows that, on appeal, the question before us is whether the Vice President reached the correct conclusion, not whether the conclusion he reached was reasonably open to him. The Decision is not a discretionary one; the principles in House v The King3 do not apply.4
Permission to appeal
[5] It is uncontentious that the Agreement does not confer on the parties to the Dispute a right to appeal. Accordingly, the appeal provisions in s.604 of the Act apply, including the requirement for permission to appeal. 5
[6] Section 604(2) of the Act provides that, without limiting when the Commission may grant permission to appeal, it must grant permission if it is satisfied that it is in the public interest to do so.
[7] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 6 In GlaxoSmithKline Australia Pty Ltd v Makin7 a Full Bench of the Commission identified some of the considerations that may attract the public interest:
‘... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.’ 8
[8] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused. 9
[9] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so, because an appeal cannot succeed in the absence of appellable error. 10 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.11
Appeal Grounds
[10] The ASU advances five challenges to the reasoning that underpins the Decision. One of those grounds of appeal contends that the Vice President’s interpretation of clause 87 of the Agreement was wrong, while the other grounds of appeal are ancillary challenges to the central conclusion concerning the proper construction of clause 87 of the Agreement.
Appeal Grounds 1 to 3 – proper construction of the Agreement
[11] Clause 87 of the Agreement is the central provision relevant to the Dispute. It provides as follows:
‘87. Accommodation
87.1 The ATO is committed to providing high quality office accommodation that meets the professional needs of employees and the nature of the employees’ work.
87.2 The ATO will continue to make more effective use of space, greater use of flexible work arrangements and rationalise accommodation holdings.
87.3 Where a decision has been made to have new accommodation or modify existing accommodation, affected employees and where they choose, their representatives will be consulted.
87.4 Without reducing the general requirements concerning quality and consultation, employees regularly engaged in field work may be required to use shared accommodation. The sharing arrangements and ratio of workpoints to employees will have full and proper regard to the nature of the employee’s work.’
Principles of interpretation
[12] The principles relevant to the task of construing an enterprise agreement were recently summarised in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union v Berri Pty Ltd 12(Berri):
‘1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which
it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aid the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.’
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.’ 13
[13] Clause 87.4 must be construed in context. Part of the relevant context includes other provisions of the Agreement, such as clause 87.2, which signals an intention on the part of the ATO to “continue to make more effective use of space, greater use of flexible work arrangements and rationalise accommodation holdings”. Clause 87.3 imposes an obligation on the ATO to consult with affected employees and their representatives “where a decision has been made to have new accommodation or modify existing accommodation”. It is clear from clauses 87.2 and 87.3, that a reasonable person reading the clauses would understand that changes to work arrangements and the way in which space at work is used by employees were within the contemplation of the ATO at the time the Agreement was made.
[14] The Agreement does not set out the particular changes that would or could be made by the ATO to achieve the objectives referred to in clause 87.2. However, it is plain that one of the means by which such objectives could be met, or sought to be met, is by the introduction of “hot desking”. This is because an arrangement of that kind could fairly be characterised as being intended to “make more effective use of space, greater use of flexible work arrangements and [result in the] rationalisation of accommodation holdings”.
[15] Clause 87.4 of the Agreement confers on the ATO an express right to require “employees regularly engaged in field work … to use shared accommodation”. It does not expressly address whether or not the ATO has such a right in relation to employees other than those “regularly engaged in field work”. Nor does it expressly prohibit the ATO from requiring employees other than those “regularly engaged in field work” to “hot desk”.
[16] In our view, there is merit in the ATO’s argument that the ASU is asking the Commission to construe the phrase “employees regularly engaged in field work” as though it read “only employees regularly engaged in field work” [emphasis added]. To do so would inject into the clause text that it does not contain. The task of construing an enterprise agreement does not involve or permit the rewriting of the “provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was” or “to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.” 14
Reasonable person test
[17] The Vice President made the following observations in relation to whether a “reasonable person” test was appropriate when construing an enterprise agreement:
‘[46] First, I note that the ASU asserted in its written submissions and during oral submissions at the hearing that a reasonable person construing clause 87, within the context of the 2017 Agreement as a whole, would understand that clause 87.4 imposes a restriction on the ATO in that it may only require employees regularly engaged in field work to use shared accommodation. I do not agree with this submission. There is no reference to a ‘reasonable person’ test in Berri and the assertion has no basis in construing clauses contained within an enterprise agreement. Accordingly, this submission must be rejected.’
[18] We agree with the ASU’s submission that the penultimate sentence of paragraph [46] of the Decision contains an erroneous statement of principle. Guideline 3 in Berri explains the correct approach in the following way:
‘3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.’
[19] The High Court has repeatedly emphasised that the proper approach in ascertaining the meaning of agreements is an objective one. 15 The subjective understanding of a party is irrelevant. The task is to ascertain the meaning that an objective outsider would attribute to the agreement in the circumstances.
[20] This error in paragraph [46] of the Decision is not, of itself, sufficient to warrant the quashing of the Decision. The ultimate question is whether the Vice President’s conclusion as to the proper construction of clause 87 of the Agreement is correct.
Expressio unius est exclusion alterius
[21] The ASU contends that the proper construction of clause 87 of the Agreement warrants the application of the maxim, expression unius exclusion alterius (expressio unius), or the related maxim, expressum facit cessare tacitum (expressum facit). The maxim expressio unius is a rule of statutory construction which presumes that an express mention in a provision of a particular person, power or thing means that the provision is not intended to include any others and any others are thereby excluded. 16 The maxim expressum facit means that which is expressed puts an end to that which is unspoken.
[22] The ASU contends that the express recognition in clause 87.4 of a right to impose “shared accommodation” on field workers brings with it an implied prohibition against imposing such arrangements on others.
[23] The Vice President considered this argument and made reference to authorities containing cautionary statements about the application of these maxims (references omitted):
‘[61] In Houssein v Under Secretary of Department of Industrial Relations and Technology (NSW), the High Court held that the expressio maxim:
‘… must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument … It is a valuable servant, but a dangerous master.’
[62] In Colquhoun v Brooks, it was found that:
‘Perhaps few so-called rules of interpretation have been more frequently misapplied and stretched beyond their due limits. The failure to make the expressio complete very often arises from accident, very often from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind’.’
[24] The Vice President then expressed the following conclusion in relation to this issue:
‘[63] It is clear that the expressio maxim is to be applied carefully and its application is discretionary in nature. In accordance with this maxim, I am not satisfied that the construction of the clause advocated for by the unions should be adopted.’
[25] We agree with the ASU’s submission that the expressio unius and expressum facit maxims are not truly discretionary in nature. However, nor is it mandatory that these or any other maxims be applied in construing an enterprise agreement. As is the case with contracts, 17 the interpretation of enterprise agreements cannot be fettered by maxims or presumptions. Such maxims and presumptions are simply tools which may aid the task of interpretation of an enterprise agreement.18
[26] The principle underlying the expressio unius and expressum facit maxims is that they apply where it can be said that a provision is clearly intended to provide exhaustively on the topic with which it deals. 19 That argument falls down on two levels in the present case.
[27] First, the language used in clause 87 of the Agreement does not evince an intention to exhaustively deal with, or codify, which employees may be required to “hot desk” and which may not.
[28] Secondly, the evidence adduced by the ATO, ASU and CPSU demonstrates that, when clause 87 was first conceived in a previous enterprise agreement, field workers were the only employees in respect of whom it was envisaged that “hot desking” might be introduced. 20 In particular, after the introduction of the GST in 2000, the ATO engaged over 2,000 field workers to perform GST related education and compliance activities. These field workers had different working arrangements from other ATO employees. They were given laptop computers and the use of motor vehicles, and they spent the vast majority of their time out of the office visiting workplaces. As a result, these field workers did not need a desk in an office specifically allocated to them. It was in connection with this issue that the makers of the ATO (General Employees) Agreement 2001 included a provision which expressly permitted the ATO to require such field workers to use “shared accommodation”. It was not the case that the makers of the 2001 enterprise agreement discussed and negotiated which classes or groups of employees could and could not be required to “hot desk”.
[29] Accordingly, we are of the view that the expressio unius and expressum facit maxims do not assist in the task of construing clause 87 of the Agreement.
Purpose
[30] The ASU contends that the objective purpose of clause 87 of the Agreement is to delineate which employees the ATO may require to hot desk. We do not accept that contention. The purpose of clause 87 as a whole is to address the “office accommodation” that the ATO will provide to meet the needs of its employees, having regard to the nature of their work, including potential changes to such accommodation and work arrangements or space within the accommodation. The purpose of clause 87.4 is to record that employees who regularly engage in field work may be required to share accommodation.
[31] It is not unusual for the makers of an enterprise agreement to include a provision in the agreement to address an issue which has arisen in bargaining, even though the provision does no more than to re-state an existing legal right or to clarify any doubt about whether such a right exists. Having regard to the history of clause 87 and the circumstances in which it was introduced, 21 this is the answer to the ASU’s contention that clause 87.4 would be rendered nugatory if it were not interpreted to impose a restriction on the ATO requiring employees other than those regularly engaged in field work to use “shared accommodation”. The predecessor to clause 87.4 was introduced to make plain that the ATO has a right under the enterprise agreement to require employees who are regularly engaged in field work to “share accommodation”. The existence of that right under the Agreement in relation to employees who are regularly engaged in field work says nothing about whether the ATO has a similar right from a different source in relation to other employees. Clause 87 of the Agreement does not, according to its terms, operate as a negative injunction to prohibit the ATO from imposing “hot desking” arrangements on employees other than field workers.
Appeal grounds 4 & 5 – factual errors and ambiguity
[32] The ASU contends that the Vice President erred by making the following findings of fact:
(a) ATO employees were aware that the ATO intended on utilising “shared accommodation”; 22
(b) that the ATO was intending to introduce “shared accommodation” was brought to the attention of the unions and ATO employees; 23 and
(c) that the ATO was actively imposing the requirement of “hot-desking” for non-field work employees and that this information was made available to ATO employees. 24
[33] The ASU also contends that the Vice President erred in concluding that there is no ambiguity in clause 87.4 of the Agreement.
[34] As the Vice President correctly observed, 25 regard may be had to evidence of the surrounding circumstances to determine whether an ambiguity exists and, if it does so exist, to assist in the resolution of the ambiguity. The Vice President considered extensive evidence of the surrounding circumstances, including written and oral communications made by the ATO to the ASU, CPSU and the ATO’s employees during bargaining. Having considered such evidence, the Vice President concluded “that there is no ambiguity in clause 87.4 of the 2017 Agreement”.26
[35] We agree with the ASU’s submission that, in some respects, the factual findings made by the Vice President overstate the evidence tendered by the parties. For example, the Vice President relied, in part, on a document attached to an email from Ms Cindy Sutherland to support the finding that the ATO brought to the attention of its employees and the unions that it was intending to introduce “shared accommodation”. 27 However, Ms Sutherland’s email was only sent to 82 employees who had been selected to transfer to the ATO’s Gosford office after having put in an expression of interest for such a transfer. Neither the email nor the document attached to it was distributed to other employees covered by the Agreement, of whom there were many thousand.28
[36] During the hearing of the appeal we were taken by counsel for each party to evidence of the surrounding circumstances, including written and oral communications made by the ATO to the ASU, CPSU and the ATO’s employees during bargaining. We have considered the evidence before the Vice President and reach the same conclusion as he did, namely clause 87 has a plain meaning and evidence of the surrounding circumstances does not identify, or assist in the identification of, any ambiguity.
[37] By way of example, the ATO sent a written communication entitled “Fast Facts Workplace flexibility” 29 to its employees prior to their vote on the Agreement. That document included the following information in relation to workplace flexibility:
‘Understanding workplace flexibility (accommodation)
● Technology enables greater flexibility in the way we work
● The 2017 EA proposal continues to support contemporary workspaces
● Consultation is key to the design of our future workspaces
● The ATO is committed to providing high-quality office accommodation
Technology enables greater flexibility in the way we work
Technology enables greater staff flexibility about where and when you can work. ATO employees continue to have access to laptops, iPads and the Virtual Desktop Platform (VDP) is required, and many are trialling new laptop, tablet and telephony options.
…
The 2017 EA proposal continues to support contemporary workspaces
The 2017 EA proposal includes clauses substantially the same as those in the 2011 EA, as they provide for both our current and future needs. In designing our future workspaces we need contemporary facilities that support improved, efficient and effective space utilisation; lessen our impact on the environment; and enable the ATO to accommodate business change over the long term. A working environment that fosters staff well-being, productivity, connectivity and collaboration is critical.
Over time we will move to a more flexible fit out that offers employees a variety of work settings where they will be able to choose where and how they complete their work activities. This will include access to a variety of shared and collaborative spaces.
Consultation is key to the design of our future workspaces
We want to provide a variety of choice of work settings (for example, working at a desk, in a quiet room, or a way from the office) that meets staff needs, balanced with the requirements of our roles.
We understand the different work areas will have different needs and that one size doesn’t always fit all. When redesigning existing or designing new workspaces, we will consider the workforce types and their professional needs and working styles.
As we explore different options, we will continue to consult with staff and their representatives to get feedback ensuring we understand your workplace needs and can design spaces to suit you, while achieving our business outcomes.
The ATO is committed to providing high-quality office accommodation
Our proposed EA reaffirms our commitment to providing you with high-quality office accommodation, which meets your professional needs and has proper regard to the nature of your work.’
[38] The ASU relies on the repeated references to employee “choice” in this communication concerning “work settings”. However, the communication does not state that employees will be able to choose whatever “work setting” they like, nor does it state that one of the “choices” of “work setting” available to employees will be their own desk. Further, neither in this nor in any other communication made by the ATO to its employees or the unions was it stated or promised that the ATO would not or could not introduce “hot desking”, whether in relation to field workers or other ATO employees. The “Fast Facts Workplace flexibility” document:
● informs the reader that changes will be made to the ATO’s workspaces and consultation will take place with employees in relation to such changes;
● does not rule in or out any particular “work settings” that may be made available in the future; and
● states that the “accommodation” provisions in the existing enterprise agreement will not be changed in any material way, because they “provide for both our current and future needs”. That is, those provisions permit the ATO to make changes to the types of workspaces available to employees.
[39] The “Fast Facts Workplace flexibility” document, like the other communications made to the ATO’s employees and the unions, does not identify, or assist in the identification of, any ambiguity in clause 87 of the Agreement.
[40] Notwithstanding the concerns to which we refer in paragraph [35] above, we have reviewed the evidence before the Vice President and are satisfied that evidence of the surrounding circumstances does not alter our conclusion about the proper interpretation of clause 87 of the Agreement.
Conclusion
[41] We grant permission to appeal on the basis that it is in the public interest to clarify the objective approach which must be taken to the interpretation of enterprise agreements. However, we dismiss the appeal because we are satisfied, for the reasons set out above, that the Vice President’s conclusion in relation to the proper construction of clause 87 was, in the context of the present Dispute, correct.
PRESIDENT
Appearances:
F Knowles, of Counsel, for the ASU
J Snaden, of Counsel, for the ATO
Hearing details:
2018.
Sydney: 21 February.
Printed by authority of the Commonwealth Government Printer
<PR600675>
1 CPSU & ASU v ATO[2017] FWC 6890
2 University of Western Sydney v Fletcher (2009) 183 IR 256; [2009] AIRCFB 368 at [22]-[24]
3 (1936) 55 CLR 499
4 Transport Workers’ Union of Australia v Wymap Group Pty Ltd[2014] FWCFB 3484 at [12]
5 DP World Brisbane Pty Ltd v The Maritime Union of Australia[2013] FWCFB 8557 at [46]-[50]; DL Employment Pty Ltd v AMWU[2014] FWCFB 7946 at [38]
6 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at [44] – [46].
7 (2010) 197 IR 266
8 Ibid at [27]
9 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481. Also see the Explanatory Memorandum to what is now s.604, at paragraph 2328.
10 Wan v AIRC [2001] FCA 1803 at [30]
11 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler; [2011] FCAFC 54; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
12 [2017] FWCFB 3005
13 Ibid at [114].
14 Berri at [114(2) & (14)]
15 See, for example, Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 185 ALR 152 at [11]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 at [41]; Pacific Carriers Limited v BNP Baribas [2004] HCA 35 at [22]
16 Blackburn v Flavelle (1881) LR 6 App Cas 628 at 634; 45 LT 52
17 McCann v Switzerland Insurance Australia Ltd (2000) 176 ALR 711 at 726; Peppers Hotel Management Pty Ltd v Hotel Capital Partners Ltd [2004] NSWCA 114 at [73]
18 Berri at [44]-[45] & [114(6)]
19 Houssein v Under Secretary, Department of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94
20 Appeal Book (AB) at 213, 988-9 & 1162
21 See paragraph [25(a)] above
22 Decision at [49]
23 Decision at [54]
24 Decision at [55]
25 Decision at [40]
26 Decision at [58]
27 Decision at [54]-[55]
28 AB at 1161
29 AB at 1301
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