Christina Kelton v Aldinga Day and Night Surgery

[2019] FWC 8518

[2019] FWC 8518

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christina Kelton
v
Aldinga Day and Night Surgery
(U2019/5874)

COMMISSIONER PLATT ADELAIDE, 20 DECEMBER 2019

Application for an unfair dismissal remedy – valid reason found – dismissal not harsh unjust or unreasonable – application dismissed.

[1] On 28 May 2019, Ms Christina Kelton made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with the Aldinga Day and Night Surgery (Aldinga Surgery).

When can the Commission order a remedy for unfair dismissal?

[2] Section 390 of the Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[3] Both limbs must be satisfied. I am therefore required to consider whether Ms Kelton was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the she was so protected, whether she has been unfairly dismissed.

When is a person protected from unfair dismissal?

[4] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

[5] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Background

[6] The uncontested factual background to the matter is as follows:

•  Mr Bob Sandhu is responsible for the oversight of the administration of the Practice.

•  Dr Harsimran Sandhu is responsible for the Practice from a medical perspective.

•  Immediately prior to the dismissal, Ms Kelton was employed by Aldinga Surgery as the Practice Manager.

•  Ms Kelton commenced employment with the Aldinga Surgery on 30 May 2016.

•  Ms Kelton was required to comply with matters contained in the Aldinga Surgery Policy and Procedure Manual dated 23 November 2015 (which was last reviewed on 23 November 2016) at the time of the information release.

•  Ms Kelton’s role included a human resources component and the preparation of contracts of employment and offers of employment, and the preparation of a Policy and Procedure Manual.

•  On 27 February 2019, Ms Kelton received a request from a Doctor at a Melbourne based Hospital to provide a copy of a patient’s medical history to allow an organ donation upon the death of the patient. The request was confirmed by fax.

•  Ms Kelton provided the medical record without consulting any other person.

•  Dr Sandhu became aware of the release of the record on 22 March 2019 and spoke to Ms Kelton about the matter.

•  On 17 April 2019, Ms Kelton was advised of the allegations against her and a meeting was sought.

•  On 17 April 2019, the Australian Services Union (ASU) sought that Ms Kelton’s responses be provided in writing, this was agreed by Aldinga Surgery. The written response was provided on 26 April 2019.

•  On 2 May 2019, Ms Kelton was invited to attend a meeting on 7 May 2019 to further discuss the allegations.

•  On 7 May 2019, the ASU sought further details of the allegations and advised that Ms Kelton would respond in writing.

•  On 13 May 2019, a second allegation letter was provided and a due date for a response of 15 May 2019 was set.

•  On 13 May 2019, Aldinga Surgery agreed to defer the response deadline until 17 May 2019.

•  On 17 May 2019, Ms Kelton advised that the ASU was no longer acting for her and a lawyer (Mr Tolis) had been appointed.

•  Discussions occurred between Aldinga Surgery and Mr Tolis.

•  On 17 May 2019, Aldinga Surgery advised Mr Tolis that Ms Kelton would be dismissed, a written termination letter was issued on 22 May 2019 dismissing Ms Kelton without notice.

[7] Aldinga Surgery contended that Ms Kelton did not obtain the appropriate consent to release the patient information. Aldinga Surgery further alleges that in 2017 Ms Kelton, without authority, varied her employment contract to her own benefit, and further that in 2019 she also without authority issued and accepted a letter converting her employment from casual to part-time.

The Hearing

[8] There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. I considered it appropriate to hold a hearing for the matter (s.399 of the Act).

Permission to appear

[9] Both parties sought to be represented before the Commission by a lawyer.

[10] Section 596(2) of the Act provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:

(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

[11] The parties submitted that the matter was complex and it would be more efficient to allow the parties to be represented by Counsel. I determined to exercise my discretion to allow both parties to be represented by a lawyer to enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

Has the Applicant been dismissed?

[12] Section 386(1) of the Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

[13] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

[14] I find that Ms Kelton’s employment was dismissed at the initiative of Aldinga Surgery.

[15] I am therefore satisfied that Ms Kelton has been dismissed within the meaning of s.385 of the Act.

Initial matters

[16] Under s.396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[17] There were no jurisdictional objections raised in respect of Ms Kelton’s application.

[18] I am satisfied that, at the time she was dismissed, Ms Kelton was a person protected from unfair dismissal.

[19] Having considered each of the initial matters, I am required to consider the merits of Ms Kelton’s application.

The Evidence

Witnesses

[20] Ms Kelton submitted an undated statement 1 and gave evidence on her own behalf.

[21] Mr Bob Sandhu (Business Manager) submitted a statement 2 and gave evidence on behalf of Aldinga Surgery.

[22] Dr Harsimran Sandhu (Principal General Practitioner) submitted a statement  3 and gave evidence on behalf of the Aldinga Surgery.

[23] Whilst there was some dispute in respect of a number of relatively minor issues (such as Ms Kelton’s role upon commencement), there were three key allegations made against Ms Kelton. I will deal with the evidence in respect of each of those allegations separately.

Credit

[24] As a result of the conflicting evidence, I am required to make an assessment of each witness’s credibility. This is particularly relevant as to the acceptance or otherwise of Ms Kelton’s evidence that the changes to her employment arrangements were simply draft templates.

[25] During the hearing I had the opportunity to observe Ms Kelton, Mr Sandhu and Dr Sandhu give evidence. I was also able to contrast their evidence against the written material contained in the various exhibits.

[26] Dr Sandhu was a convincing witness who was across the detail and the potential impact of a privacy breach on the Practice. Mr Sandhu’s memory was not as detailed as Dr Sandhu, but he was clear in his recollection that he did not expressly authorise Ms Kelton to vary her own employment contract. I accept this evidence.

[27] Ms Kelton was not a convincing witness - I have detailed issues raised by her evidence in respect of the preparation of employment documents. Ms Kelton was not able to adequately explain these issues. I have treated Ms Kelton’s explanations with a high level of scepticism, and preferred the evidence of Mr and Dr Sandhu where it conflicts.

Inappropriate release of confidential information

[28] Aldinga Surgery contend that Ms Kelton released a patient’s medical record to the Monash Medical Centre on 27 February 2019 without the appropriate consent and in contravention of the applicable policy. Dr Sandhu only became aware of the provision of the records on 22 March 2019.

[29] It appears that Ms Kelton removed the Aldinga Surgery Policy and Procedure Manual (the Policy Manual) after her dismissal on the basis that she was responsible for its preparation. This conduct appears to fly in the face of the general presumption that the employer owns the intellectual property created by its employees in the course of their employment - which does not appear to be rebutted by any version of Ms Kelton’s employment contract. The Policy Manual was only produced by Ms Kelton on the last day of the hearing after a direction was issued.

[30] The obligations of the Policy as to releasing medical information to third parties appear to be different to that relied upon by the parties in the preparation of their written submissions and statements. I have not drawn any adverse inference as a result of this and relied on the obligations contained in the Policy Manual tendered.

[31] The Policy Manual deals with Privacy at section 2.5 and section 6.3 and references the Privacy Amendment (Private Sector) Act 2000 (Cth) 4 and the Health Records Act 2001 (Vic).5 The Policy requires compliance with these laws and the National and Health Privacy Principles.

[32] The Policy contains a request procedure and poorly drafted requirements if the request is made by a person other than the patient. It suggests that a signed authority is required, and if the patient is incapable of providing consent, access may be provided for compassionate reasons. An identity validation process applied. The Policy then refers to the Privacy Act and refers to ‘persons’ responsible exercising an enduring power of attorney to access records. Ms Kelton submitted a written consent signed by the husband of the patient, dated 24 February 2019.

[33] Dr Sandhu complains that Ms Kelton did not obtain evidence of a power of attorney or similar from the patient’s husband. Ms Kelton did not address this and appears to have been satisfied that the person who sent the request was authorised.

[34] The Policy contains a procedure where the relevant record is retrieved and accessed by the ‘treating doctor or practice principal’ [prior to release]. Dr Sandhu contends that Ms Kelton did not refer the record to the treating doctor (or any doctor on duty) or practice principal (herself) for approval to release the information. Ms Kelton did not dispute this and explained her failure to obtain approval as due to the urgency of the request which she described as a ‘medical emergency’ and her concern for the patient’s welfare. In her response dated 26 April 2019, Ms Kelton stated that the Clinical Handover portions of the National Safety and Quality Standards for Health Service authorised the release of the information. Ms Kelton also acknowledged that she should have obtained consent from a GP.

[35] Ms Kelton could not explain why she was unable to telephone Dr Sandhu or speak with a doctor on duty in the 90-minute period between receiving the request and releasing the information. Dr Sandhu did not become aware of the release of the information until 3 weeks after.

[36] Ms Kelton’s position with Aldinga Surgery did not authorise her to release the information.

[37] I note that the records where provided to a different legal entity than that contained on the consent form, however Aldinga Surgery did not take issue with this prior to the dismissal.

[38] It appears to me that Ms Kelton did not comply with the Policy as a result of not seeking the requestor’s legal authority prior to releasing the information.

[39] It also appears to me that Ms Kelton did not obtain approval from a doctor at the practice or from Dr Sandhu prior to releasing the information. This represents a substantial breach of the Policy.

Issuance and acceptance of contract of employment in 2017

[40] Aldinga Surgery contend that Ms Kelton drafted and issued a contract of employment in her own name, which contained a range of improvements to her employment conditions, and accepted the same on 6 June 2017. Ms Kelton contended that this was a draft document. Ms Kelton contended that Mr Sandhu did not have any involvement in the creation of this document. It appears that Ms Kelton had determined to improve the quality of the contracts of employment by leveraging off sample documents obtained from an industry body. It also appears Ms Kelton was in part motivated by what appears to be a ‘quality assurance process’ that Aldinga Surgery was undertaking. This process involved the review of the content of such documents and ensuring that employment records for all employees are complete. Dr Sandhu requested Ms Kelton’s contract of employment as part of this process and Ms Kelton provided the document to her.

[41] I take no issue with Ms Kelton seeking to improve the documentation. The issue here arises by Ms Kelton ‘offering’ the contract to herself without authority of Mr Sandhu, and then executing the same. The impact is exacerbated by the fact that the contract of employment contains a number of improvements to Ms Kelton’s benefit. It would have been expected that a person of Ms Kelton’s experience would have been alert to the conflict of interest that would arise. Ms Kelton did not contend that she had authority to offer the employment contract to herself and execute the same. Ms Kelton said that the document was a draft template and that she did not ‘offer and accept it.’ Ms Kelton could not satisfactorily explain why she executed the document by inserting her name, the date and signature in the acceptance section of the document. Ms Kelton said her actions were ‘stupid’ and that there was no excuse for what she did. Ms Kelton contended that she presented the alleged ‘draft’ as part of an external human resources audit as her contract of employment as she was flustered by the audit and the demand to see a copy of her employment contract. The ‘real’ contract of employment was at home and she took the draft contract from the bottom of her drawer and gave the same to the auditor.

[42] I was not convinced by Ms Kelton’s explanation. I find that her conduct in completing the execution section of the document suggested this document was intended to be relied upon. I do not accept the explanation given by Ms Kelton as to the provision of the ‘template’ to the HR auditor.

[43] I find that Ms Kelton, without authority, offered herself a contract of employment which contained improvements and accepted the same on or about 6 June 2017. I accept that Aldinga Surgery was not aware of this conduct at the time. I accept that it is possible that Ms Kelton did not realise the impact of some of the provisions which improved the contract of employment in her favour.

Casual conversion offer and acceptance in 2019

[44] Aldinga Surgery contended that on 8 February 2019, Ms Kelton drafted an offer of casual conversion to herself without authority and accepted the same in writing on 9 February 2019. Ms Kelton contended (in her 26 April 2019 response and during her evidence) the offer letter was a ‘template’ and that she undertook this process to ensure that Aldinga Surgery was compliant with the Health Professional and Support Services Award 2010 (the Award) which was varied on 1 October 2018 to include casual conversion provisions. Ms Kelton said she did not have authority from Mr Sandhu to send herself the letter.

[45] The letter of acceptance dated 9 February 2019 is not consistent with the explanation provided by Ms Kelton.

[46] The right to request a casual conversion was inserted into the Award on 1 October 2018. 6

[47] Clause 10.5 of the Award sets out a range of pre-conditions and then clause 10.5(f) provides that:

“Where a regular casual employee seeks to convert to full-time or part-time employment, the employer may agree to or refuse the request, but the request may only be refused on reasonable grounds and after there has been consultation with the employee.” (underlining added)

[48] Ms Kelton’s contention that by her conduct she was ensuring that the Aldinga Surgery was complying with the Award is mistaken. The casual conversion provisions do not provide an automatic right to conversion from casual to full or part time employment.

[49] I do not accept that the casual conversion offer and acceptance prepared by Ms Kelton was a ‘template’. I find that Ms Kelton was seeking to vary the substantive conditions of her own employment without authority and for her own benefit. It is clear from Mr Sandhu’s evidence that Ms Kelton was not authorised to propose the casual conversion to herself.

Dismissal Procedure

[50] The dismissal process appears conventional. Ms Kelton was represented (initially by her Union and then by Mr Tolis, a Lawyer) at all times. The allegations were put to Ms Kelton in writing on 16 April 2019 and a detailed response was provided on 26 April 2019. Further correspondence was exchanged and on 13 May 2019 a second allegation letter was sent which invited a response by 15 May 2019 - extended upon request to 17 May 2019. No response was received and Ms Kelton was advised she was dismissed on 17 May 2019 (through her Lawyer) and the written termination letter was dated 22 May 2019. The reasons relied upon were the release of the patient information, the signing of the contract of employment and the casual conversion offer and acceptance.

Submissions

[51] Ms Kelton filed an outline of submissions and made oral submissions at the conclusion of the hearing. Aldinga Surgery relied on the submissions contained in its Form F3 Employer Response dated 11 June 2019 and made oral submissions at the conclusion of the hearing.

[52] Ms Kelton contended (other than as to remedy) as follows:

•  The reasons given for the dismissal do not constitute a valid reason.

•  Her conduct did not constitute serious misconduct.

[53] Aldinga Surgery contended (other than as to remedy) as follows:

•  It has lost trust in Ms Kelton’s ability to discharge her responsibilities owing to the inappropriate release of patient information, and creating documents purporting to be her contract of employment and the offer and acceptance of a casual conversion.

•  The dismissal was not harsh, unjust and/or unreasonable and the application should be dismissed.

Was the dismissal harsh, unjust or unreasonable?

[54] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[55] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 7

[56] I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[57] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 8 and should not be “capricious, fanciful, spiteful or prejudiced.”9

[58] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. 10 The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.11

[59] The need to protect privacy of patient records in a medical practice is self-evident in the modern world. A breach of the privacy requirements places the medical practice, and its staff, at risk of litigation. Ms Kelton was the author/controller of the Policy Manual which detailed the procedural requirements. Ms Kelton also had considerable experience as a Practice Manager and handling medical information.

[60] On Ms Kelton’s evidence alone, the requirements of the Policy Manual were not met. The record was clearly transmitted without appropriate review by the Practice Principal (Dr Sandhu) or the treating doctor. Despite the apparent urgency of the request, it appears that it was open to Ms Kelton to attempt to telephone Dr Sandhu, who had her mobile phone on her despite consulting at a different Practice, or speak to a doctor at the Practice during the 90 minute period between receiving the request and releasing the medical information.

[61] Whilst I have concerns that the proper authority to release the record was not obtained, in the circumstances I can understand why this was not obtained.

[62] I have also found that in June 2017, Ms Kelton prepared her own contract of employment (which provided a range of additional benefits) and purported to enter into that contract 12 without authority by executing it on 6 June 2017. I have rejected Ms Kelton’s contention that the document was simply a draft template for review.

[63] I have also found that on 8 February 2019 Ms Kelton prepared, without authority, an offer to convert from casual to part-time employment 13 and purported to accept the same on 9 February 2019.14

[64] Each of these findings represent a valid reason for Ms Kelton’s dismissal.

Was the Applicant notified of the valid reason?

[65] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 15 and in explicit16 and plain and clear terms.17

[66] Ms Kelton was notified in writing of each of the reasons upon which the dismissal was based.

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[67] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 18

[68] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 19 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.20

[69] I find that Ms Kelton was afforded (and took advantage of) an opportunity to respond to the allegations upon which the dismissal was based.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[70] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[71] Ms Kelton had access to a support person (through the ASU or her Lawyer) at all relevant discussions.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[72] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[73] Whilst the Aldinga Surgery is not a large business, its size does not appear to have impacted on the procedures followed to effect the dismissal.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[74] Whilst the Aldinga Surgery did not have dedicated human resources specialists, it did not appear to impact on the procedures followed in effecting the dismissal. Aldinga Surgery had access to external human resources support.

What other matters are relevant?

[75] Section 387(h) of the Act requires the Commission to take into account any other matters that the Commission considers relevant.

[76] I have taken into account that Ms Kelton was not paid notice, however, I believe that the conduct of Ms Kelton, particularly that related to the purported variations of her contract of employment, represented misconduct and would disenfranchise her to payment of notice. I have ignored Ms Kelton’s conduct in removing the Policy Manual from the workplace.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[77] I have made findings in relation to each matter specified in s.387 of the Act as are relevant.

[78] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 21

[79] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of Ms Kelton was not harsh, unjust or unreasonable.

Conclusion

[80] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Ms Kelton was unfairly dismissed within the meaning of s.385 of the Act. Ms Kelton’s application is therefore dismissed. An Order 22 reflecting this Decision will be issued.

COMMISSIONER

Appearances:

M.Saies of Counsel on behalf of the Applicant.

W.Snow of Counsel on behalf of the Respondent.

Hearing details:

2019.

Adelaide:

November 14 and 18.

Printed by authority of the Commonwealth Government Printer

<PR715346>

 1   Exhibit A1 (including attachments)

 2   Exhibit R6

 3   Exhibit R8

 4   The Privacy Amendment (Private Sector) Act 2000 (Cth) amended the Privacy Act 1988 to regulate some, but not all, private sector organisations/businesses. ... The Act includes ten National Privacy Principles (NPPs) regulating the collection, use and disclosure of personal information by private sector organisations

 5   The Health Records Act 2001 created a framework to protect the privacy of individuals' health information in Victoria

 6   PR700571

 7   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]

 8   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

 9   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

 10   Edwards v Justice Giudice [1999] FCA 1836, [7]

 11   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]

 12   Exhibit A1 attachment CK7

 13   Exhibit R6 attachment BS1

 14   Exhibit R6 attachment BS2

 15   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151

 16   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)

 17   Ibid

 18   Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]

 19   RMIT v Asher (2010) 194 IR 1, 14-15

 20   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7

 21   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7]

 22   PR715347