Azizi and Secretary, Department of Employment
[2016] AATA 890
•10 November 2016
Azizi and Secretary, Department of Employment [2016] AATA 890 (10 November 2016)
Division
GENERAL DIVISION
File Number
2015/3794
Re
Bukurim Azizi
APPLICANT
And
Secretary, Department of Employment
RESPONDENT
DECISION
Tribunal Deputy President F J Alpins
Date 10 November 2016 Place Melbourne The decision under review is affirmed.
[sgd]..............................................................
Deputy President F J Alpins
INDUSTRIAL LAW – fair entitlements guarantee – application for review of decision that applicant not eligible for advance under Fair Entitlements Guarantee Act 2012 (Cth) as failed to make “effective claim” – whether documents required by Secretary must be provided within prescribed period for making of claim – whether documents provided by applicant before expiry of prescribed period satisfied Secretary’s requirements
Legislation
Acts Interpretation Act 1901 (Cth), ss 13, 15AA
Fair Entitlements Guarantee Act 2012 (Cth), ss 3, 4, 5, 10, 14, 15, 28, 29-34, 38, 39, 40, 51, 54
Legislation Act 2003 (Cth), s 13
Corporations Regulations 2001 (Cth), regs 5.6.48, 5.6.65
Cases
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1
Baini v R (2012) 246 CLR 469
Bluebottle UK Limited v Deputy Commissioner of Taxation (2007) 232 CLR 598
Re Browneand Secretary of Employment [2015] AATA 978
Carr v Western Australia (2007) 232 CLR 138
Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619
Re Mills and Secretary, Department of Employment (2016) 150 ALD 382
Military Rehabilitation and Compensation v May (2016) 150 ALD 392
Re Paraponiaris and Secretary, Department of Employment [2015] AATA 895
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Rodriguez v United States 480 US 522 at 525-526 (1987)
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Singh v The Commonwealth (2004) 222 CLR 322
Taylor v Public Service Board (New South Wales) (1976) 137 CLR 208
Thiess v Collector of Customs (2014) 250 CLR 664
Winkler v Director of Public Prosecutions (1990) 25 FCR 79
Secondary Materials
Macquarie Dictionary (6th ed, Macmillan Publishers Group Australia, 2013)
Oxford University Press, Oxford English Dictionary Online (2016) < Explanatory Memorandum, Fair Entitlements Guarantee Bill 2012 (Cth)
Commonwealth, Parliamentary Debates, House of Representatives, 11 October 2012, 12034 (Bill Shorten)
REASONS FOR DECISION
Deputy President F J Alpins
10 November 2016
INTRODUCTION
This is an application for review of the decision of the respondent (the “Secretary”) that the applicant, Mr Bukurim Azizi, is not eligible for an advance under the Fair Entitlements Guarantee Act 2012 (Cth) (the “Act”), as affirmed upon internal review (s 40(1)(a) of the Act).
FACTS AND PROCEDURAL HISTORY
Mr Azizi was employed on a full-time basis as a machine operator by Gelpack Enterprises Pty Ltd from 10 May 2008 to 5 June 2014, when his employment was terminated. An ASIC extract confirms that a liquidator of the company was appointed that same day.
On 27 June 2014, the Department of Employment received a claim form dated 23 June 2014 by which Mr Azizi claimed that he was eligible for an “advance”, being “financial assistance under [the] Act on account of employment entitlements” (as defined in s 5 of the Act), in the amount of $29,492.97.
The approved claim form relevantly stated in Part B that, in the case of a claimant who was an Australian citizen at the time their employment ended, “it is mandatory that you provide certified documentary evidence to support your claim” (emphasis in original) and then referred to a list of acceptable forms of evidence appearing later on that page. The prefatory words to that list stated that “acceptable evidence of your citizenship ... includes a copy of at least one of the following categories of documents that has been certified as a ‘true copy’ of the original document by a person authorised to do so” (emphasis in original), the enumerated categories relevantly including “an Australian passport issued prior to the end of your employment (or that indicates you were born in Australia)” and “an Australian citizenship certificate issued prior to the end of your employment”.
At the end of that list, it was stated that “[i]nformation about how to have your documents certified is included in the Claim Form Checklist at the end of this claim form or in the How do I certify documents? factsheet on our website at As indicated, the notes for the Claim Form Checklist give detailed instructions about the certification of copies of original documents following a reiteration of the list of acceptable evidence of citizenship.Under the heading to the notes, it states “Mandatory and Supporting Documents – send copies only, originals will not be returned”, with that statement all appearing in bold and capital letters.
I note that most of the boxes in the claim form checklist attached to the claim form which precedes the notes to which I have just referred had been ticked, although the box for having “[a]ttached relevant documents”, which referred to the notes, had not.
In any event, Mr Azizi did lodge copies of certain documents with his claim form, being a copy of his Certificate of Australian Citizenship and a copy of the identification page of his passport, as well as a copy of a payslip received from his former employer. However, contrary to the requirements set out in the approved claim form, neither the copy of his passport nor the copy of his citizenship certificate had been certified as a “true copy” of the original document by a person authorised to do so. In his statement of evidence, Mr Azizi said he believed that he was merely required to provide a photocopy of his original citizenship certificate.
The Department of Employment acknowledged receipt of Mr Azizi’s claim form by a letter dated 1 July 2014. By letter dated 9 July 2014, the Department informed Mr Azizi that his claim was not effective for the purposes of the Act because the evidence he had provided in support of his claimed Australian citizenship “has not been appropriately certified as a true and original document”, expressing a somewhat erroneous conflation of the certification requirement. However, it was also stated in the letter that “[f]urther information on how to certify documents as true copies is attached”; that information was provided with the letter. Furthermore, it was stated that “all the required information and documentation must be received within 12 months of the end of your employment or the date or the liquidation or bankruptcy of your employer (whichever is later)” and that “[i]f this is not provided by this date your claim will be assessed as ineligible for FEG assistance”.
A further letter to similar effect dated 28 April 2015 was also sent to Mr Azizi by the Department. Like the two previous letters, it was sent to the address indicated on his claim form. It was stated in that letter, more accurately, that the evidence of citizenship provided by Mr Azizi “has not been appropriately certified as a true copy of the original document”.
By letter dated 28 May 2015, the Secretary’s delegate informed Mr Azizi that, in accordance with s 15(1) of the Act, the delegate had decided that Mr Azizi was not eligible for an advance, because he had not made an effective claim for the purposes of s 14 of the Act.
By letter dated 30 June 2015, Mr Azizi’s solicitor sought internal review of the delegate’s decision on his behalf and enclosed a certified copy of Mr Azizi’s citizenship certificate. The decision was affirmed upon internal review (s 39(1) of the Act).
I note that Mr Azizi said in his statement of evidence that he did not receive the letters of 9 July 2014 or 28 April 2015 and that it was not until about May or June 2015 that he received “a large amount of mail” which had been returned to Australia Post, without indicating whether, and if so when, he received those two letters. However, his solicitor in his letter of 30 June 2015 referred to the letter dated 28 April 2015 in addition to the letter of 28 May 2015. In any event, for the reasons that follow, nothing turns on the issue of whether (and if so, when) Mr Azizi received that correspondence.
LEGISLATION
I turn now to the relevant provisions of the Act. The objects of the Act are stated in s 3 of the Act, albeit being expressed as its “main” objects. Section 3 provides:
“The main objects of this Act are:
(a)to provide for the Commonwealth to pay advances on account of unpaid employment entitlements of former employees of employers in cases where:
(i) the employers are insolvent or bankrupt; and
(ii) the end of the employment of the former employees was connected with that insolvency or bankruptcy; and
(iii) the former employees cannot get payment of the entitlements from other sources; and
(b)to allow the Commonwealth to recover the advances through the winding up or bankruptcy of the employers and from other payments the former employees receive for the entitlements.”
As I have said, the term “advance” is defined to mean “financial assistance under this Act on account of employment entitlements” (s 5). The term “employment entitlement” is variously defined (also in s 5), although not in a manner material for present purposes.
Section 10(1) of the Act provides that a person “is eligible for an advance if the Secretary is satisfied of all of the following” enumerated matters, including, relevantly, that “when the employment ended, the person was an Australian citizen ...” (para (g)) and that “an effective claim (see section 14) that the person is eligible for the advance has been made to the Secretary by or on behalf of the person” (para (h)).
As indicated in s 10(1)(h), s 14 of the Act concerns the making of an effective claim for the purposes of the Act. Section 14 relevantly provides:
“(1)To be effective for the purposes of this Act, a claim that a person is eligible for an advance for the person’s employment by an employer must:
(a)be in a form approved by the Secretary; and
(b)be accompanied by any documents required by the Secretary; and
(c)be made in accordance with subsection (2), and with subsection (3) if it applies.
(2)The claim must be made before the end of 12 months after the later of the following events:
(a)an insolvency event happens to the employer;
(b)the person’s employment by the employer ends.
(3)However, if the employer is or was a bankrupt, the claim must be or have been made before the discharge of the employer’s bankruptcy.
(4)Despite subsection (1), the claim is not effective for the purposes of this Act if it is made after a claim (the earlier claim) was made for a payment, under the scheme known as the General Employee Entitlements and Redundancy Scheme, connected with the person’s employment by the employer.
…
(6)A claim form approved by the Secretary may provide for verification by statutory declaration of statements in the claim.”
Section 5 of the Act relevantly provides that an “insolvency event” happens to an employer of a person when a liquidator of the employer is appointed (provisionally or otherwise) under the Corporations Act 2001 (Cth) (para (a) of the definition).
Section 15(1) of the Act provides that “[i]f an effective claim that a person is eligible for an advance is made to the Secretary, the Secretary must decide whether the person is eligible for the advance”.
Given certain submissions made on Mr Azizi’s behalf, it is relevant to note the terms of s 38 of the Act, which concerns applications to the Secretary for internal review and relevantly provides as follows:
“(1)A person may apply to the Secretary for review of:
(a)a decision whether the person is eligible for an advance; or
(b)a decision on the amount of an advance the person is eligible for.
(2)The application must be made within 28 days after the date of the notice of the decision, or such longer time as the Secretary allows.
(3)The application must:
(a)state the reasons why the application is being made; and
(b)set out, or be accompanied by, any information or documents relating to those reasons, other than information or documents referred to in the notice of the decision.”
Part 5 of the Act (ss 29 – 34) provides for the recovery of advances by the Commonwealth. It is sufficient for present purposes to set out the explanation of Part 5 contained in s 4(6) of the Act:
“Part 5 lets the Commonwealth recover some or all of the advance, by:
(a)substituting the Commonwealth for the person eligible for the advance as a creditor in the winding up or bankruptcy of the employer; and
(b)requiring the person to pay the Commonwealth if he or she is later paid amounts for the entitlements the advance related to.”
Section 51 of the Act provides that “[t]he Consolidated Revenue Fund is appropriated for the purposes of payments under this Act”.
It is instructive to note the following statements in the extrinsic materials relating to the Act. First, in the Revised Explanatory Memorandum to the Fair Entitlements Guarantee Bill 2012 it is stated that para (h) of clause 10 of the Bill (which concerned the conditions of eligibility for an advance) “limits eligibility to individuals who have lodged a claim in accordance with Clause 14 of the legislation”. Further, the relevant Minister explained in his Second Reading Speech concerning the Bill that “[t]he bill maintains existing arrangements under GEERS that a claim for assistance will need to be made within 12 months”, being the General Employee Entitlements and Redundancy Scheme referred to in s 14(4) of the Act. (As is explained in the extrinsic materials, the scheme under the Act was intended to replace that former scheme, and to do so on a statutory basis, given that the former scheme was merely administrative in nature.)
PREVIOUS TRIBUNAL DECISIONS
In order to give context to the parties’ submissions, it is convenient at this point to advert to three previous decisions of the Tribunal concerning the construction of s 14 of the Act to which the parties referred. In Re Paraponiaris and Secretary, Department of Employment [2015] AATA 895 at [52] - [57], as in this case, the applicant lodged a claim for an advance within the time period prescribed by s 14(2) of the Act but did so with, relevantly, a copy of his birth certificate which had not been certified as a true copy of the original document. Amongst other things, it was submitted on his behalf that the terms of s 14(1)(b) of the Act give rise to an implied discretion by which the nature of the documents required for a claim to constitute an “effective claim” for the purposes of s 14 of the Act may be varied in respect of a particular claimant after their claim is made and that, in his case, such a discretion ought to be exercised in his favour upon review so as to render his claim an “effective claim” for the purposes of s 14 of the Act. As will become apparent, the submissions made on Mr Azizi’s behalf in this proceeding were somewhat different, in that it was instead submitted that his claim did in fact constitute an “effective claim” for the purposes of s 14.
In Paraponiaris, I noted that it was unclear whether a copy of the applicant’s birth certificate lodged shortly after the expiration of the period prescribed in s 14(2) was a certified true copy which would have met the Secretary’s documentary requirements, but considered it unnecessary to make a finding in that regard given my subsequent reasoning. I reached the following conclusions concerning the proper construction of s 14 which are relevant to this proceeding:
“52.It is necessary to ascertain “the ordinary and grammatical sense of the statutory words” (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 31 per French CJ; emphasis added). Section 14 is to be read as a whole. The use of tenses in s 14(1) is quite deliberate – the expressions “be in a form approved” and “be accompanied by any documents required” are to be read in the context of the expression “be made” in para (c) of s 14(1) and the temporal requirement in s 14(2) (emphasis added). To be an effective claim, a claim must be made within the prescribed time, in the prescribed form and must be accompanied by the prescribed documents. …
53.…The use of the word “must” in the prefatory words of s 14(1) and the conjunctive requirements of both s 14 and s 10 mean that the Secretary is merely obliged to consider whether each of the enumerated matters governing eligibility are satisfied. ….
54.I cannot discern any source of a power or discretion, whether express or implied, and whether in the terms of s 14, other provisions of the Act or some other legislation, by which the Secretary might depart from those requirements in the case of a particular claimant.
55.Furthermore, I can see no express or implied power or discretion by which the time limit for the making of a claim prescribed by s 14(2) might be extended and thus give rise to a real issue as to whether an “effective claim” might be said to have been made for the purposes of s 14 in some other way (whether by [the applicant’s] subsequent correspondence or otherwise) ….
56.Moreover, the Tribunal’s powers of review under s 43(1) of the AAT Act do not afford any discrete source of power or discretion by which [the applicant] might somehow be relieved from the consequences of his claim’s failure to satisfy the terms of s 14(1)(b).
57.Unfortunately for [the applicant], the legislative intention evinced by the strict terms of s 14 is directed towards the attainment of a balance between the objects expressed in s 3 of the Act, which are countervailing to the extent that the first favours former employees while the second is directed to allowing the Commonwealth to recover public funds paid out to such employees.”
It is implicit in that reasoning that the time limit in s 14(2) applies to the satisfaction of the requirement in s 14(1)(b).
In Re Browneand Secretary of Employment [2015] AATA 978, the applicant’s claim form was, as in Paraponiaris, lodged (just) before the expiry of the period prescribed by s 14(2) of the Act, but with a copy of the applicant’s certificate of Australian citizenship which had not been certified as a true copy of the original document by a person authorised to do so. In Browne, as in this case, it was submitted by the applicant that the fact that a duly certified copy of his citizenship certificate was ultimately provided meant that his claim constituted an “effective claim”, despite the fact that that occurred (shortly) after the expiration of the prescribed period.
In Browne, Deputy President Kendall concluded that, as the required certified copy of the applicant’s citizenship certificate was provided after the expiry of the prescribed period, “it could not have the effect of rendering his claim effective” and that “[t]his is the clear effect of the statute, as unfair as that might sometimes seem” (at [41]), citing Paraponiaris at [53]-[56] and later at [57]). He explained that:
“43. … [the applicant’s] claim was not effective as the required certified documentation was filed late. It is clear that the Act does not permit the Secretary any discretion to extend the time period for making an effective claim. Under paragraph 10(1)(h) of the Act, a person will only be eligible for an advance if the Secretary is satisfied that, in addition to all the other requirements of subsection (1), an effective claim has been made. If the Secretary is not satisfied that the claim is effective in accordance with section 14, the Secretary cannot be satisfied that the person is eligible for an advance.
44.In the circumstances, the Secretary, or the Tribunal standing in the Secretary’s shoes, is simply not empowered to accept a claim for an advance after the expiry of the statutory timeframe, regardless of whether a claimant is able to supply the required documentation after that date or has provided some but not all of the documentation within time. While this might seem inherently unfair, this is what the statute mandates. There is no flexibility in this regard.”
I note that in Re Mills and Secretary, Department of Employment (2016) 150 ALD 382 Deputy President Kendall concluded that a claim was not an “effective claim” for the purposes of s 14 of the Act for consonant reasons, although that case differed factually in that both the applicant’s claim form and the uncertified copies of his birth certificate and passport provided with it, were lodged (well) after the expiration of the period prescribed by s 14(2).
PARTIES’ SUBMISSIONS
I turn now to the oral and written submissions made on Mr Azizi’s behalf in support of the contention that, contrary to the decision under review, he had made an “effective claim” for the purposes of s 14 of the Act. In summary, the first argument was that an “effective claim” was constituted by the claim form together with the certified true copy of his citizenship certificate provided under cover of his solicitor’s letter dated 30 June 2015, despite the fact that that document was provided after the expiration of the period prescribed by s 14(2) of the Act. That argument was therefore concerned with what might be described as the temporal aspects of s 14.
Shortly stated, the following submissions were made in support of Mr Azizi’s first argument:
(a)The effect of the decision under review was that “by reason of a simple oversight in paperwork, Mr Azizi has been deprived of nearly $30,000 to which he was otherwise entitled”. In his written submissions in reply, it was submitted that there is no indication that the legislature intended “that a retrenched worker should be deprived of the very employment entitlements the … Act was enacted to protect because of a failure to provide accompanying paperwork in a timely manner” and there is “no reason or necessity to interpret section 14 of the … Act in a way that would lead to this result”.
(b)the Tribunal’s decisions in Paraponiaris and Browne ought to be distinguished or not followed;
(c)Section 14(1) of the Act distinguishes between “the claim itself and the documents accompanying it” and “[i]t is only the claim itself which needs to be made within the 12-month period”;
(d)“Section 14(2) should not be interpreted … as requiring the documents to physically accompany the claim; to be in the same envelope” nor as requiring them “to be provided at the same time as the claim was made”;
(e)Such a reading is consistent with the terms of s 38 of the Act, particularly s 38(3)(b), which contemplates that the Secretary may take into account documents that were not before the original decision-maker in taking action upon internal review (under s 39(1) of the Act);
(f)Upon a “literal and obvious” interpretation, s 14(2) clearly only concerns the time by which a claim must be made in order to be an “effective claim” and should not be read as requiring the documents the subject of s 14(1)(b) to be provided within that 12-month period, as if Parliament had intended the prescribed period to apply to the requirement in s 14(1)(b), it would have said so;
(g)There is no warrant in the words of s 14 or the rest of the Act to read additional words into s 14 so as to require the documents required by s 14(1)(b) also to be provided within the period prescribed by s 14(2) and that to do so would impermissibly defeat the achievement of the object stated in para (a) of s 3 of the Act, given s 15AA of the Acts Interpretation Act 1901 (Cth) (the “Interpretation Act”) and equivalent common law principles;
(h)To construe the prescribed time limit in s 14(2) as also applying to the provisions of documents within s 14(1)(b) did not achieve the object in para (b) of s 3 of the Act to any greater extent than already achieved by s 10(1)(e) and Part 5 of the Act (which provides for recovery of advances by the Commonwealth), and those provisions protect the interests of the Commonwealth with respect to the recovery of advances “in other, more effective ways”.
Shortly stated, the Secretary made the following submissions with respect to Mr Azizi’s first argument:
(a)Contrary to Mr Azizi’s first submission as set out above, the Act makes it clear that there is no entitlement to an advance in the absence of an effective claim having been made, which includes the provision of the required accompanying documents;
(b)The Tribunal’s decisions in Paraponiaris, Browne and also Mills are not distinguishable in any relevant respect and ought to be followed in this proceeding;
(c)As stated in its heading (see s 13 of the Interpretation Act), s 14 of the Act is concerned with the making of an effective claim. Section 14(1) is definitional in nature, in that it describes the three characteristics that a claim must have in order to be an effective claim. The time limit prescribed in s14(2) applies to all aspects of an effective claim – that is to say a “claim” having the characteristics set out in s 14(1), not merely the provision of a claim form. Mr Azizi’s argument was based upon the erroneous conflation of a claim with a claim form;
(d)The interpretation of s 14 for which Mr Azizi contended requires that s 14(2) be read in isolation from the surrounding provisions of s 14;
(e)Further, that interpretation effectively renders the expression “accompanied by” in s 14(1)(b) meaningless. While that expression did not require that the required documents be provided simultaneously with the claim form, it nevertheless required, according to its ordinary meaning, that the documents be provided within the period prescribed in s 14(2). The use of that expression indicated such a legislative intention;
(f)Had Parliament not intended the required documents to be provided within the prescribed period, it could have imposed a separate requirement to provide documents;
(g)Mr Azizi’s contention that s 14 permitted documents to be provided in accordance with s 14(1)(b) after the expiration of the period prescribed in s 14(2) would necessarily require the Secretary to exercise an implied discretion as to what period would be permissible for that purpose, but in the absence of any statutory indication as to the basis of, or factors governing, such a discretion;
(h)Section 14 was to read in the context of s 10(1)(h) of the Act and the requirement that the Secretary reach the requisite state of satisfaction for the purposes of s 10(1), and also in the context of s 15;
(i)Section 38 of the Act did not support Mr Azizi’s argument, as its application is not confined to decisions as to whether a claim is effective for the purposes of s 14 of the Act. Furthermore, it can arise in various contexts in the review of decisions concerning whether a claim is effective.
Mr Azizi’s second argument was that an “effective claim” was constituted by the claim form together with the photocopy of Mr Azizi’s certificate of Australian citizenship that was provided with the claim form (and therefore within the time prescribed by s 14(2)), despite the fact that the document provided had not been certified as a true copy of the original document by a person authorised to do so. The focus of this argument was on the nature of the documents required by the Secretary for the purposes of s 14(1)(b), rather than any temporal aspect of that provision.
Shortly stated, the following submissions were made in support of Mr Azizi’s second argument:
(a)the list of acceptable (and unacceptable) evidence of citizenship contained in the approved claim form does not purport to be exhaustive or exclusive, given the use of the word “includes” in the prefatory words;
(b)by way of example, if the applicant had provided his original certificate of Australian citizenship, “it is difficult to see how this would not have satisfied the Secretary’s requirements”;
(c)as the Secretary had approved the form, any ambiguity in its meaning should be read in Mr Azizi’s favour;
(d)while the documents provided with Mr Azizi’s claim form were not certified as true copies, “one imagines it would have been relatively easy for the Commonwealth to ascertain the authenticity of either document”;
(e)as a certificate of Australian citizenship is a certificate, that means, by definition, that it has been certified, given that the people who signed the certificate were also authorised, by virtue of the offices they held, to certify documents.
Shortly stated, the Secretary made the following submissions with respect to Mr Azizi’s second argument:
(a)The approved form was not to be read with the same rigour as legislation;
(b)Given the context in which the word “includes” is used in the approved form, being followed by the words “at least one” in bold text, it is apparent that, while the acceptable evidence of citizenship might include one or more additional documents, it must include at least one of the documents listed which has been certified as a true copy of the original;
(c)In any event, the applicant had provided copies of documents which were on the list, and it was clear that whichever document on that list was chosen, it was required to be certified as a true copy by a person authorised to do so;
(d)Information following the list of acceptable information and in the notes to the “Claim Form Checklist” conveyed the need for the further step of certification to be undertaken;
(e)Mr Azizi did not provide the original documents in question, nor does the Secretary require original documents, given the risks associated with their provision.
I return to the latter argument later in these reasons.
CONSIDERATION
General principles of statutory interpretation
Before turning to consider the proper construction of s 14 of the Act, it is helpful to set out some relevant general principles of statutory construction. The task involved “must begin with a consideration of the text itself” (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [25], [92]). One must discern “the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and the legislative purpose” (Alcan at [4] - [5] per French CJ; Military Rehabilitation and Compensation v May (2016) 150 ALD 392 at [10]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408).
It is important to bear in mind the paramountcy of the statutory text. The task of statutory construction not only begins, but must also end, with a consideration of the text; accordingly, “[u]nderstanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text” (Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39], cited with approval in Thiess v Collector of Customs (2014) 250 CLR 664 at [22]). Context includes the other provisions of the statute in question, as a provision should be read in the context of the Act as a whole (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] - [70]).
Section 15AA of the Interpretation Act requires that preference be given to the interpretation of a provision “that would best achieve the purpose or object of the Act”. That provision is “a particular statutory reflection of a general systemic principle” that “[o]bjective discernment of statutory purpose is integral to contextual construction” (Theiss at [23]).
The paramountcy of the statutory text lies not only in the objective of ascertaining its meaning, but also in what it reveals as to statutory purpose and legislative intention.The “language which has actually been employed in the text of legislation is the surest guide to legislative intention” (Alcan at [47]). The “purpose of a statute resides in its text and structure” (Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [25] per French CJ and Hayne J).
That is explicable by the fact that statutory purpose and legislative intention are essentially objective constructs to be identified by the application of principles of statutory interpretation, not by ascertainment of the actual or subjective intention of the legislature (Certain Lloyd’s Underwriters at [25]). As Gleeson CJ observed in Singh v The Commonwealth (2004) 222 CLR 322 at [19]:
“The danger to be avoided in reference to legislative intention is that they might suggest an exercise in psychoanalysis of individuals involved in the legislative process …”.
As statutory purpose is to be discerned from the statutory text, it would be erroneous to make “some a priori assumption about its purpose” as the “purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions” (Certain Lloyd’s Underwriters at [26]). The text serves to reveal legislative intention, not to be accommodated to a presupposed purpose. It “is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose” (Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 at [28]); nor is it appropriate for the Tribunal to take such an approach.
It would also be erroneous to focus upon a general legislative purpose so as to be distracted from careful consideration of the text of a statutory provision (Alcan at [51], citing Carr v Western Australia (2007) 232 CLR 138 at [6]). One must look to that text to ascertain the extent to which the legislature intended a particular purpose of the legislation to be achieved; the text should not be read according to an assumption that a purpose of the legislation is to be achieved to its ultimate extent (Alcan at [11] per French CJ).
That is particularly so in cases where legislation is enacted so as to attain outcomes reflecting competing interests. In Carr, Gleeson CJ stated (at [5] - [7]):
"In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth). … That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose. …
… Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling.
… [T]he general purpose of legislation of the kind here in issue is reasonably clear; but it reflects a political compromise. The competing interests and forces at work in achieving that compromise are well known. The question then is not: what was the purpose or object underlying the legislation? The question is: how far does the legislation go in pursuit of that purpose or object?"
In Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619 at [40]-[41], the High Court cited these paragraphs of Gleeson CJ’s reasons in Carr with approval, noting that “the idea contained in the last paragraph of this passage was pithily expressed by the Supreme Court of the United States in Rodriguez v United States 480 US 522 at 525-526 (1987): ‘[N]o legislation pursues its purposes at all costs.’” In my view that is a fortiori so where legislation contains dual express objects, one of which manifestly counteracts the other in terms of the ultimate outcome for those affected by the legislation.
It is also germane to this case to note the principle of statutory interpretation that a section should be construed as a whole and not in a “piecemeal” fashion; it “would be wrong to treat” paragraphs of a section as “wholly distinct and separate from” each other where they “have an intersecting operation” (Bluebottle UK Limited v Deputy Commissioner of Taxation (2007) 232 CLR 598 at [96]; Taylor v Public Service Board (New South Wales) (1976) 137 CLR 208 at 213).
Making an effective claim – s 14 of the Act
The final principle to which I have referred serves as a useful starting point for approaching the proper construction of s 14 of the Act. It also, like the other principles to which I have referred, betrays the flaws in the approach to statutory construction for which Mr Azizi contended. In essence, that approach impermissibly involves a fragmentary construction of s 14 which does not correctly reflect the import of its text. It is instead designed to achieve an asserted legislative intention which does not accord with that evinced by the statutory text.
As I said in Paraponiaris (at [52]), s 14 is to be read as a whole. The manner in which tenses are used in paragraphs (a) and (b) of s 14(1), read in the context of the requirement in paragraph (c) and the temporal requirement in s 14(2), indicates that in order for a claim to be an effective claim for the purposes of the Act it must be made within the prescribed time, in the prescribed form and must be accompanied by the prescribed documents.
I will elaborate on that proposition in the context of Mr Azizí’s contention that s 14 does not require that s 14(1)(b) be complied with within the time prescribed in s 14(2). I do not accept the submission that one must read additional words into s 14 to reach the conclusion that s 14(1)(b) is affected by the time limit in s 14(2); that submission is founded on the false premise that s 14 ought not be read as a whole. The provisions of s 14, read as a whole, evince a clear legislative intention that the making of the claim be concluded within the time prescribed in s 14(2) (and s 14(3), if applicable). The provisions of s 14(1) (with its conjunctive requirements), s 14(2) and also s 14(3) (if applicable) have integrative operation.
That being so, the requirements governing the making of a claim - that it be in an approved form (for the purposes of s 14(1)(a)) and, more significantly, be accompanied by any documents required by the Secretary (for the purposes of s 14(1)(b)) must necessarily be fulfilled before the expiration of the period within which the claim must be made. If the requisite documents which are to accompany the claim are not provided within the prescribed period, it cannot properly be said that s 14(1)(b) has been satisfied. The question of whether or not a claim is “effective” for the purposes of the Act is to be considered according to whether the requirements of s 14 were met as at the end of the prescribed period; the correct answer to that question cannot change at a later time.
I therefore agree with Deputy President Kendall’s conclusion in Browne at [41] that the provision of documents purportedly in compliance with s 14(1)(b) but after the expiration of the period prescribed in s 14(2) “could not have the effect of rendering [a] claim effective”.
In my view, the word “claim”, in the context in which it is used in s 14, means the assertion of eligibility for an advance. That reflects with the ordinary meaning of the word, which is relevantly defined in the Oxford English Dictionary Online to mean a “demand for something as due; an assertion of a right to something” and in the Macquarie Dictionary (6th edition) to mean “a demand for something as due; an assertion of a right or alleged right”. It also accords with the words of s 10(1)(h) of the Act, which require that an “effective claim … has been made to the Secretary” (emphasis added).
Contrary to the applicant’s submissions, the temporal limitation in s 14(2) is upon the making of a claim according to that meaning. Section 14(2) is not directly concerned with the lodgement of the claim form, although as I have indicated it necessarily follows from s 14(1)(a) that that must be done within the prescribed period. As the Secretary submitted, and as s 14(6) confirms, Mr Azizi’s submissions erroneously conflate the claim, and the characteristics it must possess in order to be effective, with the claim form. I have noted his submissions seeking to construe the word “claim” in s 14 by analogy to legislation governing limitation periods applicable to the commencement of court proceedings, to the effect that such legislation does not prescribe a time limit for evidence supporting the claim to be adduced. However, the Act must be construed according to its own terms and in its own context.
As appeared to be common ground, I note in that regard that, given the focus on the making of the claim, it is not necessary for the requisite documents to be lodged with the claim form in order to satisfy s 14(1)(b), provided that they are lodged before the expiration of the prescribed period. The requirements of paragraphs (a) and (b) of s 14(1) are discrete to that extent. The commonality between those paragraphs lies in the fact that they both concern aspects of the claim and both share a temporal requirement, as indicated by the requirement in paragraph (c) that the claim “be made in accordance with” s 14(2) (and s 14(3), if applicable).
It is in that context that the expression “be accompanied by” in s 14(1)(b) is employed. As the Secretary submitted, that expression must be given meaning and effect (Project Blue Sky at [71]). The word “accompany” is relevantly defined in the Macquarie Dictionary to mean “to be or exist in company with”. It is important to note that it also has its own temporal connotation – “accompany” is relevantly defined in the Oxford English Dictionary Online to mean “[t]o add or join (a thing or person) with another; to supplement with. Also with by”, “[o]f a thing: to go with or alongside; to be a partner or complement to” and also “to be present or occur at the same time as”.
I note that each party relied upon different authorities concerning the meaning of the expression “accompanied by” in the context of a failure to pay a prescribed fee within time limits prescribed under the Migration Act 1958 (Cth) in support of their contended construction of s 14 of the Act. I note also that there are also Federal Court decisions about the meaning of that expression in the context of extradition proceedings (see, e.g. Winkler v Director of Public Prosecutions (1990) 25 FCR 79). However, given the markedly different statutory context with which the authorities upon which the parties relied and those other authorities were concerned, I do not consider any of them to be of assistance in the construction of s 14. What matters is the text of that provision, which cannot properly be displaced by principles to be derived from cases about provisions in other statutes (Baini v R (2012) 246 CLR 469 at [14]; Shi at [92]).
It is important to bear in mind the purpose of the requirement in s 14(1)(b), read in its wider statutory context. It founds the basis upon which the Secretary may prima facie properly be satisfied that conditions of eligibility for an advance enumerated in s 10 of the Act are met. Accordingly, the provision of the requisite documents is not merely an ancillary matter. In their absence, a person cannot be eligible for an advance, given that the Secretary’s satisfaction as to the relevant conditions being met is required by the prefatory words of s 10(1). (As I indicated in Paraponiaris (at [51] - [54]), it is matter for the Secretary to determine, in respect of all claims, what proof he will require.) That wider context further confirms that the documents the subject of s 14(1)(b) are to be provided by the expiration of the period prescribed in s 14(2).
Relevantly, the requirement to provide a certified true copy of Mr Azizi’s certificate of Australian citizenship goes to the prima facie establishment of a basis upon which the Secretary may properly be satisfied that the condition in s 10(1)(g) of the Act is met. Given the terms of s 14(1)(b), it also goes to the basis upon which the Secretary may properly be satisfied that the condition in s 10(1)(h) is met, that is to say, that “an effective claim … that the person is eligible for the advance has been made to the Secretary”.
Further, when one reads s 14 in the context of s 15 of the Act, it evinces a legislative intention that, upon the expiration of the period prescribed in s 14(2), the Secretary will be able to determine conclusively whether an effective claim has been made by a particular claimant, the satisfaction of that requirement being a prerequisite not only to eligibility for an advance (given s 10(1)(h)), but also to the Secretary being obliged to decide pursuant to s 15(1) whether the person is eligible for an advance in all other respects, which necessarily involves consideration of the other conditions of eligibility in s 10(1) (see Paraponiaris at [18]). The interaction of s 10 (particularly its temporal aspects referable to the past occurrence of certain events), and ss 14 and 15 is such that, for the purposes of s 15(1), the Secretary may properly and conclusively determine upon the expiration of the period in s 14(2) whether a person has made an effective claim and, if so, whether they are eligible for an advance.
As the Secretary submitted, if one were to accept the proposition that documents which are to accompany a claim by virtue of s 14(1)(b) could be provided after the time for making a claim had expired, there is no basis to suppose what further period might be permissible for that purpose. The absence of any express discretion is significant in that regard. In contradistinction, I note the terms of s 38, which provides that an application for internal review must “set out, or be accompanied by” any information or documents relating to the reasons why the application is being made (s 38(3)(b); see also para (a)). Significantly, s 38(2) provides that the “application must be made within 28 days after the date of the notice of the decision, or such longer time as the Secretary allows” (emphasis added). Section 38(2) confirms by way of contradistinction to s 14 that where the legislature has intended the Secretary to have a discretion to extend the time for a claimant to meet a statutory requirement, it has granted it expressly.
By virtue of s 38(2), a claimant seeking internal review might be permitted, upon the Secretary exercising the discretion granted in that provision, to rely upon documents for the purposes of s 38(3)(b) which were provided later than 28 days after the date of the notice of decision. However, the discretion could only properly be exercised so that documents might be relied upon for the purposes of s 38.
Contrary to Mr Azizi’s submission, the terms of s 38(3)(b) do not support his contention that the time limit in s 14(2) does not apply to documents within the terms of s 14(1)(b). In particular, that provision does not provide a means by which a claim can be rendered an “effective claim” in the context of an application for internal review. As the Secretary submitted, that provision is not confined to applications for review of decisions as to whether an effective claim has been made but also decisions made under s 15 as to whether a person is eligible for an advance in the context of other conditions of eligibility and as to the amount of an advance; in that regard, s 38(1) corresponds, as one would expect, with ss 15(1) and 15(2).
In any event and more germanely, if internal review is sought of a decision that an effective claim has not been made, any documents relating to the reasons why the application for internal review is being made which might accompany that application can only properly be taken into account by the Secretary in reviewing the decision pursuant to s 39 to the extent that they bear upon the correctness of the decision which was made – that is to say, did the claim, as it was made, comply with s 14 of the Act? Relevantly to this case, the question to be addressed is whether the claimant provided the documents required for the purposes of s 14(1)(b) within the time prescribed in s 14(2) (and s 14(3), if applicable). Provision of such documents pursuant to s 38(3)(b) but after the expiration of the time periods prescribed in s 14 could not render a claim an “effective claim”. Section 38 does not provide a means for a claimant to circumvent the prescribed time limit in s 14 by providing documents as were required under s 14(1)(b) after the prescribed time period has passed.
I return now to the general principle of statutory interpretation explained above to the effect that legislative intention is to be discerned, not imputed. I do so in order to address the reasoning which underlies the approach to the interpretation of s 14 for which Mr Azizi contended. As I indicated above, it was submitted in essence that:
(a)there was “no reason or necessity” to interpret s 14 “in a way that would lead to [t]he result” Mr Azizi should be deprived of “the very employment entitlements the … Act was enacted to protect” because he failed to provide the documents required by s 14(1)(b) within the time prescribed in s 14(2);
(b)that if s 14 were to be read in such a way the object expressed in para (a) of s 3 (of providing for the Commonwealth to pay advances on account of unpaid employment entitlements) would be defeated; and
(c)that such a construction did not further the achievement of the object in para (b) of s 3 (of allowing the Commonwealth to recover the advances), which was better met by other provisions. In that regard, it was submitted that the time limit prescribed in s 14(2) was not significant in the context of the winding up of an employer in that there is no specific time period in which a proof of debt must be lodged with a liquidator.
A person is only entitled to receive a payment under the Act in the event that the Secretary decides that they are eligible for an advance (and its amount) (ss 15, 28). As the prefatory words of s 15(1) make clear, the making of an effective claim is an essential precondition to the Secretary being obliged to decide whether the person is (otherwise) eligible for an advance. An entitlement to payment of an advance can only follow a favourable decision to that effect (see s 28(1) of the Act, which obliges the Secretary to pay “an advance a person is eligible for” to certain persons). I note that there is nothing in the text of s 15 or the other provisions of the Act to suggest that the Secretary has any discretion to make a decision as to whether a person is eligible for an advance in the absence of an effective claim being made; indeed, the fact that the making of an effective claim is also a condition of eligibility for an advance (s 10(1)(h)) indicates the contrary.
As Secretary correctly submitted, no claimant has any entitlement to an advance under the Act unless and until they make a claim which complies with the requirements of s 14. A favourable decision under s 15 can only be properly made if the Secretary is satisfied that all of the conditions of eligibility for an advance enumerated in s 10 of the Act are met, including that an effective claim has been made. Section 10(1)(h) evinces a legislative intention that compliance with the terms of s 14 is an integral condition of eligibility for an advance.
The nature of an entitlement to payment of an advance under the Act derives from, but is ultimately discrete from, the unpaid employment entitlements which found a claim made under the Act and a former employee’s rights with respect to debts attributable to those entitlements (which, I note, are the subject of conditions of eligibility for an advance as prescribed in paragraphs (e) and (f) of s 10(1)). As stated above, an “advance” is “financial assistance under [the] Act on account of employment entitlements” (emphasis added). Any right to payment of financial assistance under the Act is a creature of statute, not a pre-existing right. Rather, the granting of such a statutory right requires the holding of discrete pre-existing rights qua former employee. That statutory right can only arise upon the making of an effective claim and by virtue of a decision made by the Secretary in conformity with the provisions of the Act. (I note in that regard s 54 of the Act, which provides that a right to payment of financial assistance under the Act is granted on the basis that it may be reduced, or be cancelled, revoked, terminated or varied under later legislation, without compensation being payable.)
Accordingly, compliance with the terms of s 14 has far greater import in terms of any “entitlement” that a claimant might have than Mr Azizi’s submissions suggest. Those submissions instead urge the adoption of the erroneous approach to statutory interpretation against which the High Court warned in Certain Lloyd’s Underwriters, Australian Education Union, Alcan and Carr, as set out above. Those submissions are impermissibly founded on an assumed legislative intention that advances on account of unpaid employment entitlements of former employees should be paid to all such employees, irrespective of whether they complied with the time limit governing the making of a claim as provided. They require that s 14 be read in a strained way so as to achieve that outcome.
The real question, as posed by Gleeson CJ in Carr, is “how far does the legislation go in pursuit of” the object expressed in paragraph (a) of s 3? The answer to that question lies in the terms of s 14, read in the context of s 10(1)(h), which evince a clear legislative intention that only those who make a claim which complies with the requirements of s 14(1) within the time prescribed in s 14(2) (and 14(3), if applicable) are to be eligible for an advance under the Act. It is clear from the statutory text that a claimant who makes a claim but fails to provide the documents required by the Secretary before the expiration of the prescribed period is not eligible for an advance.
There is even less utility in the approach to the construction of s 14 for which Mr Azizi contends given that the objects in s 3 are “countervailing to the extent that the first favours former employees while the second is directed to allowing the Commonwealth to recover public funds paid out to such employees” and the “legislative intention evinced by the strict terms of s 14 is directed towards the attainment of a balance between” those objects (Paraponiaris at [57]). It would be erroneous to construe s 14 according to the object expressed in para (a) of s 3 while disregarding that expressed in para (b) given that it “strikes a balance between competing interests” (Carr at [5] per Gleeson CJ), being the interests of former employees with unpaid employment entitlements weighed against the public interest, given that advances are paid out of public funds (see s 51). One must look to the text of s 14 to see where the line is drawn, according to applicable principles of statutory construction. Upon a proper reading of s 14, Mr Azizi did not make an effective claim and therefore is not eligible for an advance – that conclusion cannot be circumvented by impermissibly reading s 14 in a piecemeal way.
Contrary to the submissions made on Mr Azizi’s behalf, construing the time limit in s 14(2) as being applicable to s 14(1)(b) does serve to achieve the object of allowing the Commonwealth to recover advances expressed in para (b) of s 3 of the Act. I note that the submission that there is no specific time period in which a proof of debt must be lodged with a liquidator is incorrect (see, for example, regs 5.6.48 and 5.6.65(3) of the Corporations Regulations 2001 (Cth)). In any event and more to the point, it is evident that in order for the Secretary to best able to pursue the means of recovery provided for in Part 5 of the Act, the Secretary needs to be able to make conclusive decisions under s 15 as to claimants’ eligibility for advances and their amount within some confined period so as to be best able to recover advances as a substituted creditor through the winding up or bankruptcy process; furthermore, some certainty is required as to the total amount of advances paid or to be paid when engaging in that process for the purpose of recovery. A contrary reading of s 14 permitting the satisfaction of the requirement in s 14(1)(b) at some indeterminate time after the expiry of the time period prescribed in s 14(2) could result in the recovery of advances being impeded or, in some cases, thwarted.
Furthermore, contrary to Mr Azizi’s submissions, the fact that Part 5 of the Act specifically provides for recovery of advances by the Commonwealth does not preclude the need to read other provisions of the Act (beyond s 10(1)(e)) according to the object stated in para (b) of s 3 and not only according to that stated in para (a).
Documents required by the Secretary – s 14(1)(b) of the Act
As I explained above, it was submitted on Mr Azizi’s behalf in the alternative that the documents he provided with his claim form sufficed for the purposes of s 14(1)(b) of the Act, so that he made an “effective claim” on that basis. I accept the Secretary’s submission that, in ascertaining the documents required by the Secretary for the purposes of s 14(1)(b) as indicated in the approved claim form, the content of the form is not to be construed as if it is legislation; the approved form is not a legislative instrument (cf. s 13 of the Legislation Act 2003 (Cth)).
The content of the form and its annexures to which I have referred makes it abundantly clear that, irrespective of which enumerated document (or documents) a claimant chooses to provide a copy of, the authenticity of that copy (or those copies) must be established by having the copy to be provided in support of the claim certified as a true copy of the original document. As the Secretary submitted, it is clear that steps must be undertaken by a claimant, to not only photocopy the original document, but take both that copy and the original to a person authorised to certify documents so that the copy can be certified. Accordingly, it is made very clear that a mere photocopy will not suffice. It is not for the Secretary to ascertain the authenticity of uncertified copies of documents; it is for claimants to provide the documents required by the Secretary.
The (uncertified) copies of documents which were provided by Mr Azizi with his claim form were copies of documents included in the list of acceptable kinds of documents, namely his certificate of citizenship and his passport, but the use of the words “includes” cannot sensibly be taken to suggest that uncertified copies of documents set out in the list will also suffice, given the immediate context and other content of the form and its annexures. I note in passing that it seems to me that the word “includes” preceding the list is not to be taken as suggesting that certified copies of other kinds of documents will also suffice, but rather than indicating all of the documents encompassed within the class of acceptable kinds of documents.
I note that Mr Azizi did not provide his original certificate of citizenship or his passport, so his submission on that point is hypothetical, as his proof of citizenship was deficient, not surplus to requirements; in any event, claimants are clearly instructed in the claim form not to provide original documents in support of their claim.
As indicated above, the Secretary’s requirement that the copy of a document to accompany a claim be certified as a true copy of the original document serves to establish the authenticity of the copy as confirmation of the existence of the original document and as an accurate reproduction of its content. The fact that a duly authorised person is willing to certify that they have seen the original document and that the copy subsequently before the Secretary is a true copy of that original document provides a basis upon which the Secretary may be properly satisfied that the information contained in the document accompanying the claim may be relied upon in the absence of the original document for the purposes of s 10 of the Act.
Accordingly, I do not accept Mr Azizi’s submission that uncertified copy of a citizenship certificate is sufficient because those who signed it were authorised to certify documents. Given that the requisite certification concerns the authenticity of the copy, in the absence of that certification, the content of the uncertified copy is not sufficiently reliable in terms of the certification of citizenship it purports to convey.
CONCLUSION
For the reasons stated above, Mr Azizi’s claim was not effective for the purposes of the Act. As will be apparent, I consider that the decisions in Paraponiaris and Browne are not distinguishable and ought to be followed.
While the consequences of Mr Azizi’s failure to make an effective claim are significant and unfortunate for him, there is no proper basis upon which the Tribunal can disturb the decision under review. Accordingly, the decision will be affirmed.
I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President F J Alpins [sgd]...............................................................
Associate
Dated 10 November 2016
Date of hearing 2 March 2016
Date final submissions received
Counsel for the Applicant
29 March 2016
Mr D Gration
Solicitor for the Applicant Mr T Fleming, Fleming & Rhoden Lawyers Representative for the Respondent Mr L Holcombe, HWL Ebsworth Lawyers
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