Cort Kinker v Australian Brewers Guild Pty Ltd T/A Hawkers Beer

[2017] FWC 5272

[2017] FWC 5272

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cort Kinker
v
Australian Brewers Guild Pty Ltd T/A Hawkers Beer
(U2017/3257)

COMMISSIONER BISSETT MELBOURNE, 23 OCTOBER 2017

Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – whether applicant was an employee or contractor – application dismissed.

[1] Mr Cort Kinker has made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking relief from unfair dismissal. Mr Kinker worked for Australian Brewers Guild Pty Ltd t/as Hawkers Beer (ABG). His employment was terminated on 3 March 2017.

[2] The Chief Executive Officer and Production Manager of ABG is Mr Mazen Hajjar. 1Mr Kinker met Mr Hajjar through work being carried out by a United States (US) Company (Equinox Technology Partners). That company contracted Mr Kinker’s company Realize Partners, LLC (Realize)2 in relation to software (Greatvines) used by ABG (amongst others).

[3] In early 2015 Mr Kinker put a proposal to ABG for the provision of professional services to ABG to finalise the installation of the Greatvines software. 3 In August 2015 Mr Kinker put a further proposal to ABG to provide professional services to it.4 This was not accepted by ABG although Mr Kinker and Realize continued to provide ad hoc services as part of the finalisation of the software rollout.5 At this time Mr Kinker was based in the US and there is no dispute that the work was undertaken by Mr Kinker through his company under a contract for services for ABG. Mr Kinker is a citizen of the US.

[4] Between late 2015 and early 2016 ABG decided to stop using the Greatvines software and moved to a new system called Coresuite combined with SAP (a resource tool). 6

[5] Through March and April 2016 Mr Kinker and ABG reached an agreement by which Mr Kinker would come to Australia and undertake work for ABG. What that arrangement was forms part of the dispute before the Commission. 7

[6] On 4 May 2016 Mr Kinker arrived in Australia on an Electronic Travel Authority visa (Subclass 601) (Visitor visa). That visa was clearly marked “No work – Business Visitor Activity Only”. 8 The visa made it clear that the holder of the visa could not work in Australia. Both Mr Kinker and ABG were aware of the visa restriction.

[7] Mr Kinker did however perform work for ABG. Mr Kinker says this work was undertaken as an employee of ABG whilst ABG says that he was engaged as a contractor.

[8] From May 2016 until October 2016 it is apparent that Mr Kinker did attend at the ABG premises on a regular basis; did have an ABG email address; and was provided with ABG business cards. Mr Kinker was also on an internal group email list of invitees to regular weekly meetings of the management group, attended those meetings, was given work arising from those meetings and appears to have undertaken those tasks for ABG.

[9] During the period in question Mr Kinker also attended a brewers conference as part of the ABG team with the cost of his attendance (including airfares) met by ABG.

[10] On 7 June 2016 Mr Kinker was provided with an offer of employment by ABG. That agreement commenced “upon the date of approval of the subclass 457 Temporary Work (Skilled) visa by the Department of Immigration and Border Protection.” 9

[11] On 24 August 2016 Mr Kinker received a bridging visa that would have effect from the expiration of his Visitor visa on 1 September 2016. 10 The bridging visa did not allow Mr Kinker to work. Both Mr Kinker and ABG were aware of this restriction on the bridging visa.

[12] It is not in dispute that on 20 October 2016 Mr Kinker was granted a Temporary Work (Skilled) (subclass 457) visa (457 visa). 11 ABG was his sponsor. It is not in dispute that, from this point until his employment was terminated on 3 March 2017, Mr Kinker was an employee of ABG. During this period as an employee he undertook essentially the same duties that he had done from May to October 2016.

[13] On 3 March 2017 Mr Kinker’s employment was terminated by ABG. This led to Mr Kinker’s application for unfair dismissal.

[14] ABG raises a jurisdictional objection to the Fair Work Commission (Commission) dealing with Mr Kinker’s application. It says that he was not employed for the minimum employment period and is therefore not protected from unfair dismissal. It says this is the case because, from May 2016 until October 2016, Mr Kinker was a contractor and not an employee.

[15] Mr Kinker says that, despite any visa restriction, he was an employee of ABG from October 2016 and hence, by March 2017 had completed the minimum employment period of six months.

Legislative provisions

[16] Section 382 of the FW Act states:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(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.

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[17] ABG is not a small business. The relevant minimum employment period is therefore six months. If Mr Kinker was not employed for at least six months he is not protected from unfair dismissal and his application must be dismissed.

Was Mr Kinker a Contractor or Employee for the period May to October 2016?

[18] The basis on which a determination can be made as to whether a person is a contractor or employee is well established and involves the consideration of a range of indicia. 12 As is relevant to the matter before me these are:

(i) Whether the putative employer exercised, or had the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like.

(ii) Whether the worker performed work for others (or had a genuine and practical entitlement to do so).

(iii) Whether the worker had a separate place of work and or advertised his or her services to the world at large.

(iv) Whether the worker provided and maintains significant tools or equipment.

(v) Whether the work could be delegated or subcontracted.

(vii) Whether the putative employer had the right to suspend or dismiss the person engaged.

(ix) Whether the putative employer presented the worker to the world at large as an emanation of the business.

(xi) Whether income tax was deducted from remuneration paid to the worker.

(xii) Whether the worker was remunerated by periodic wage or salary or by reference to completion of tasks.

(xiv) Whether the worker was provided with paid holidays or sick leave.

(xvi) Whether the work involved a profession, trade or distinct calling on the part of the person engaged.

(xviii) Whether the worker created goodwill or saleable assets in the course of his or her work.

[19] As was observed in Abdalla v Viewdaze Pty Ltd 13this list is not exhaustive and features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.

[20] I accept that it is also relevant to consider the intention of the parties in entering into their arrangement. 14

(i) Did ABG exercise control over Mr Kinker?
[21] A consideration of the question of “control”, particularly in respect of the place and hours of work, must be undertaken in the context of how and where work is now performed.

[22] It is not unusual for white collar workers to not be required to attend to the workplace between 9.00 a.m. and 5.00 p.m. on a daily basis. Many work different patterns of hours and, with the technology available, work away from a traditional workplace. The type of work, day to day supervisory responsibilities or project work may have substantial bearing on when and where work is performed. Control, in such circumstances, should not be equated to being in the office from 9.00 a.m. to 5.00 p.m.

[23] Mr Hajjar’s evidence is that Mr Kinker was engaged to develop and implement the Coresuite system along with SAP, to create a business reporting tool and provide general consulting and advisory services. He says that, prior to 20 October 2016 Mr Kinker provided advice and delivered on these requirements. He distinguishes this from Mr Kinker’s role post 20 October 2016 when he says he was directing the work of Mr Kinker. 15

[24] Mr Hajjar says that all he cared about, prior to the employment of Mr Kinker in October 2017, was the “deliverables”. 16 For this reason he says he did not care that Mr Kinker took time to return to the US in late May. Mr Hajjar says that from May 2016 to October 2016 he was satisfied that Mr Kinker was “delivering” on those things required.

[25] Mr Hajjar says that, when he contracted Mr Kinker to undertake the work associated with Coresuite, he did not require Mr Kinker to come to Australia to do it. He says that, just as the work Mr Kinker and Realize had previously done on Greatvines, he expected that the work could be done remotely. Mr Hajjar’s evidence is that Mr Kinker wanted to come to Australia to familiarise himself with the Australian market and establish a presence for Realize in Australia.

[26] For these reasons ABG says that it did not exercise control over Mr Kinker.

[27] Mr Kinker says that he was required to attend the office and that he did so. He says he was required to attend management meetings and that he undertook a significant array of work for ABG. Mr Kinker says Mr Hajjar was in control of all aspects of the business and this included him.

[28] Mr Kinker says that others in the workplace recognised him as an employee. 17

[29] Mr Kinker was invited to attend weekly management meetings although there is no evidence that the projects ABG said he was required to undertake were subject to discussion at those meetings. To the contrary, there is evidence that Mr Kinker was given, and readily accepted, tasks outside those ABG says he was engaged to perform. ABG says that Mr Kinker readily and voluntarily took on these tasks.

[30] Mr Kinker did attend the office on a regular basis but, as I observed above, not a lot in these circumstances should be read into the presence of absence from the office. I do accept that, being at the office, was convenient for both Mr Kinker, who was newly arrived in Australia and had few friends or other contacts, and for ABG, who could call on Mr Kinker’s willingness to undertake a variety of tasks without much question.

[31] I do accept that, after Mr Kinker became an employee, he was required to attend at the office and his work appeared to be subject to much greater scrutiny. This suggests a fundamental shift in the relationship at this time.

[32] ABG might be better placed to maintain that it had no control over Mr Kinker if there was a clear contract for services, regular reporting against that contract and no attempt made to apparently co-opt Mr Kinker into other work for ABG.

[33] I am satisfied that ABG did not fully control when and where Mr Kinker performed his work although it appears to have had a reasonable expectation as to his availability. This is not changed by the fact that Mr Kinker at times may not have worked in the office and may not have worked a “standard” day.

[34] I consider this matter weighs slightly in favour of finding that Mr Kinker was a contractor. It does appear however that Mr Kinker used ABG and ABG used Mr Kinker, each to their own benefit.

(ii) Could Mr Kinker work for others?
[35] I am satisfied that there was nothing to prohibit Mr Kinker working for others during the period of May 2016 to October 2016.

[36] Whilst Mr Kinker submits that his focus was on building the “Hawker brand” 18 this does not mean that he was required to work exclusively for ABG. While Mr Kinker claims he was working “55-70+” hours per week (including commuting) for ABG this does not mean that he worked exclusively for it and could not work for others.

[37] This weighs slightly in favour of finding Mr Kinker was a contractor.

(iii) Did Realize and Mr Kinker advertise his services?
[38] I accept that Mr Kinker’s business website was still available and accessible during the period in question. It is not clear to me if a website being “active” requires any more than it existing. That it may still have existed is not evidence that Mr Kinker advertised his services, in the sense of actively seeking business. .

[39] Mr Hajjar says that Mr Kinker did do work for others and attended a trade show as a means of developing contacts for his business.

[40] There is very little in this matter that it is a neutral consideration. The existence of a website is not uncommon. Care must be taken of reading too much into the mere existence of a website as evidence of advertising services in the sense of genuinely looking for business.

(iv) Did Mr Kinker provide his own tools and equipment?
[41] Mr Kinker was provided with sim cards by ABG for his mobile phone and iPad. Mr Hajjar said these were provided because Mr Kinker said he intended to “expense” his phone bill to ABG if a sim card was not provided. 19

[42] I accept that Mr Kinker used his own laptop.

[43] It appears that there was the provision of some tools and equipment by ABG and some by Mr Kinker. The extent to which these tools were necessary for him to do his work for ABG is unclear.

[44] The provision of the sim cards however would tend to weigh in favour of a finding that Mr Kinker was an employee.
(v) Could Realize or Mr Kinker subcontract or delegate the work?
[45] Given the lack of any express terms of the contract between Mr Kinker and Mr Hajjar or any other representative of ABG, it is difficult to know if a subcontracting arrangement (which may be to a person not known to ABG) would be acceptable to ABG.

[46] The existence of the employment arrangements that were to apply once Mr Kinker was granted a 457 visa is not evidence of the arrangements that were to apply prior to that point in time.

[47] This is a neutral consideration.

(vi) Could Mr Kinker be suspended or dismissed?
[48] Again, given the lack of any detailed contract between Mr Kinker and ABG this is not a known matter. The lack of any express terms however would suggest the arrangement could be terminated by either party.

[49] I am not convinced that this factor adds anything to the matter to be decided.

(vii) Was Mr Kinker put forward as a representative of ABG?

[50] Mr Kinker was provided with ABG business cards and had an ABG email address. It was expected Mr Kinker would attend a trade show for ABG, which he did. This attendance cost, including airfares and accommodation, was met by ABG.

[51] These circumstances indicate that Mr Kinker was put forward as a representative of ABG.

[52] There is no evidence that, whilst going about business for ABG, Mr Kinker put himself forward as anything other than a part of ABG.

[53] This weighs in favour of a finding that he was an employee of ABG.

(viii) What were the remuneration and taxation arrangements?
[54] I am satisfied that Mr Kinker was paid in US dollars on invoice and that ABG did not deduct any PAYG taxation or pay superannuation for him. Mr Kinker readily agreed to this arrangement and made no claim on ABG that it pay taxation or superannuation on his behalf.

[55] That Mr Kinker was paid the same amount each month is a neutral matter. A yearly contracted amount was agreed to be paid in equal instalments much like a retainer. Mr Kinker says that he (or Realize) used the term “salary” on the invoices and these were paid. I have not been able to locate such invoices, but even if this is the case the wording on the invoice cannot change the characterisation of the payments. The calling of the invoiced amount as “salary” does not make it as such and does not make Mr Kinker an employee without other indicia falling in his favour.

[56] Whilst it might be the case that the monthly payments to Realize and the annual salary to Mr Kinker were the same – and this is unusual – the actual value of the money paid would vary between the two given the claims Realize may make as a business for taxation purposes and the cost of wages to ABG (where “on costs” such as superannuation, workers compensation, allowance for leave etc would need to be met).

[57] This weighs in favour of a finding that Mr Kinker was a contractor.

(ix) Was Mr Kinker entitled to holiday and sick pay?
[58] ABG say they did not pay Mr Kinker any sick pay or holiday pay 20 for the period prior to him becoming an employee.

[59] In late May 2016 Mr Kinker returned to the US to attend the graduations of his two children. Mr Kinker was paid for this period. Mr Kinker says that when he became an employee he sought a reconciliation of this time against leave actually accrued and additional hours he had worked.

[60] Mr Hajjar says that he was content to pay the agreed monthly amounts to Mr Kinker as long as Mr Kinker continued to deliver on those matters he was dealing with. Mr Hajjar did not care from where this work was done. That Mr Kinker was in the US did not bother Mr Hajjar.

[61] Mr Kinker says that when he was put on the payroll as an employee he was granted leave for the period he had travelled to the US in May 2016 and that he claimed non-standard work hours. 21 The document relied on by Mr Kinker does not provide any evidence that he was granted leave or paid overtime for the period May to October 2016. That he asked for such benefits is not evidence they were granted. The document relied on by Mr Kinker indicates that he accepted payments to him (or Realize) in US dollars without the payment of taxation in Australia but also had an expectation of some of the benefits of being an employee in Australia such as the payment of annual leave and for additional hours in excess of 40 hours per week.

[62] I am not convinced that Mr Kinker seeking additional payment is evidence that he was an employee. This is, at best, a neutral matter in my considerations.

(x) Creation of goodwill

[63] ABG says that Mr Kinker’s business (Realize) would benefit from the work it had done for ABG and this would enhance the reputation of Realize.

[64] There is no evidence before the Commission to suggest that Realize gained anything from the work Mr Kinker did for ABG. Ultimately, any beneficial outcomes from the work performed by Mr Kinker for ABG accrued to ABG through efficient and streamlined systems within the business. However, having achieved a positive outcome for ABG, Realize would be free to advertise its results and, through this, create goodwill to itself.

[65] Given the short period during which the arrangement was in place this is a neutral consideration.

(xi) Whether the work involved a profession, trade or calling?

[66] The work done by Mr Kinker for ABG was specialised in that its appears it was specific to the drinks business. It was not work of a generic nature.

[67] Nothing however was put to me on this matter. It is therefore a neutral matter in my consideration.

(xii) Business expenditure
[69] ABG reimbursed Mr Kinker all expenses he incurred whilst undertaking work for ABG.

[70] This weighs in favour of a finding that Mr Kinker was an employee.

(xiii) Intention of the parties
[68] From the time prior to Mr Kinker coming to Australia the evidence suggests that there was an intention that there would be an employment relationship between Mr Kinker and ABG. Emails between Mr Hajjar and Mr Kinker indicate that an examination was occurring of what classification in the skills shortage list Mr Kinker may fit into so that a 457 visa application might be made. 22

[69] Mr Hajjar could only have gone to the lengths he did if it had been his intention that Mr Kinker should work for ABG as an employee.

[70] This intention was clearly manifest in the conditional contract of employment ABG had with Mr Kinker that would become operational once the 457 visa came into effect. This contract was dated 7 June 2017, 4 weeks after Mr Kinker arrived at ABG.

[71] Emails between Mr Kinker and Mr Hajjar in the period prior to Mr Kinker arriving in Australia do not provide any clear and unequivocal intent on their parts as to the relationship it was intended to create for the period prior to the grant of the 457 visa. It is clear that it was intended that he should be an employee once the 457 visa was granted. This is evident through the exchange of information with respect to an occupation for which a 457 visa might apply. 23

[72] It is not clear what Mr Hajjar’s intention was in encouraging Mr Kinker to come to Australia in May 2016 on a Visitor visa, prior to the grant of the 457 visa except that apparently this is how Mr Hajjar came to Australia – on a visitor visa then securing a 457 visa.

[73] What is clear from the documentation provided by Mr Kinker is that:

● On 15 March 20126 Mr Kinker sent his CV to Mr Hajjar; 24

● On 16 March 2016 Mr Kinker sent an email to Mr Hajjar which said:

Mazen

based on current liabilities – would need about US$ 4,666 (~AUD 6,000) monthly plus whatever i’d need to live locally at a minimum.

perhaps an option is to do split deal with a consultant agreement whereby let’s say $5K goes to my US account and then whatever we agree for local as employee could work. could be advantageous for the company to do it that way as well.

I could also come down as a consultant and invoice via realize until things get formalized as well. not sure if that is a good option or not… 25

[74] Mr Kinker says that this idea stemmed from his “discovery” that the business could not pay him until his visa had been approved. Mr Kinker says that Mr Hajjar “jumped all over it, with no hesitation whatsoever.” 26 This email of Mr Kinker suggests that he intended that the relationship be that of a contractor and his evidence suggests Mr Hajjar readily agreed to this proposal.

[75] From 1 to 4 April 2016 there is an email exchange between Mr Kinker and Mr Hajjar about occupations for which a 457 visa might be available. 27

[76] On 28 April 2016 Mr Kinker advised Mr Hajjar of possible departure dates from the US. 28

[77] On 29 April 2016 Mr Hajjar replied:

I think you may need to prove a return flight

as you are a tourist

so get a flexible return one 29

[78] On 29 April 2016 Mr Kinker advised Mr Hajjar that he would arrive on Tuesday 3 May 2016.

[79] On 30 April 2016 Mr Hajjar sent Mr Kinker a map – presumably to his house where Mr Kinker would be staying – with a note that read “Remember here for tourism”. 30

[80] Mr Hajjar’s reminders to Mr Kinker that he was in Australia for tourism and the need to have a flexible return fare sit comfortably with his evidence that Mr Kinker wanted to come to Australia to observe the domestic market, observe the business operations, systems and structure of ABG and familiarise himself with key industry stakeholders. 31

[81] Mr Kinker knew he could not come to Australia and legally work prior to leaving the US. He put a proposal to Mr Hajjar that would have Realize invoice ABG for payment. 32 This was accepted by Mr Hajjar and is what did occur.

[82] It appears that only one of two conclusions can be reached of the intention of Mr Kinker and Mr Hajjar. Either they intended that Mr Kinker should come to Australia and perform some contracting services whilst he was here or that Mr Kinker come to Australia with the intent of breaching a clear and unequivocal visa condition by working as an employee of ABG. To be clear on this point, given the emphasis by Mr Hajjar of the restrictions on the Visitor visa to Mr Kinker prior to his arrival in Australia, any breach of that condition cannot have been an accident.

[83] To make a finding that the intention of the parties was that they should breach provisions of the Migration Act 1958 (Cth) is a serious matter and not one to be made lightly. The standard of proof for such a finding is high. I am not prepared to make such a finding. For this reason I must find that the intention of Mr Hajjar and Mr Kinker was to continue with a beneficial contactor arrangement between ABG and Realize.

[84] I am supported in this conclusion by Mr Kinker’s knowledge that he could not legally be employed and paid in Australia prior to the grant of the 457 visa, that Mr Kinker suggested that he should be paid through a consultant agreement and because Mr Kinker (Realize) and ABG had a previous contract for services such that it was not an unknown concept to Mr Kinker.

[85] Having found that the intention of the parties was to create a contractor arrangement, this weighs heavily in favour of finding that Mr Kinker was a contractor.

Was Mr Kinker a contractor?

[86] This is an unusual matter. Mr Kinker, through his company Realize, provided professional services to ABG whilst he was based in the US. Some services continued to be provided through to late 2015.

[87] In early 2016 discussions occurred between Mr Kinker and Mr Hajjar that apparently traversed the provision of some services by Mr Kinker (perhaps through his business) to ABG. This was to cost ABG a fixed fee of $100,000 for a year.

[88] Mr Hajjar had a laissez faire approach to the expenditure of $100,000 (AUD) per annum on an undocumented contract for services to ABG when the business was still in its infancy. He had no written contract with Realize or Mr Kinker in 2016, he had no record of deliverables, in addition to the contract price he paid for Mr Kinker to come to Australia but with no apparent expectations of what Mr Kinker would deliver to ABG for that expenditure and he put Mr Kinker up in his own home. 33
[89] On 7 June 2017, within a month of Mr Kinker’s arrival (although I suspect the discussion commenced earlier) Mr Hajjar offered Mr Kinker a contract of employment subject to gaining a 457 visa that ABG would sponsor. This offer was made, on Mr Hajjar’s written statement, “borne out of the consulting advice Cort [Kinker] had provided in relation to the ongoing needs of the business.” 34 The discussions Mr Hajjar says he had with Mr Kinker with respect to employment “between May and October 2016” clearly occurred very early on in that time period evidenced by the conditional letter of 7 June 2017.35

[90] Overall it is a very unusual state of affairs.

[91] I have taken account of the evidence of both Mr Hajjar and Mr Kinker. I am satisfied that both have manipulated the circumstances to suit their own agenda. Mr Hajjar was evasive in his evidence and Mr Kinker overly verbose. Neither did themselves justice. The documentary evidence, such as it is, is the most reliable material before me.

[92] I am heavily persuaded by my findings as to the intentions of the parties and the implications for a finding that each set out to breach the provisions of the Migration Act 1958 (Cth). I have also taken into account the email sent by Mr Kinker to Mr Hajjar on 16 March 20167, the way in which Mr Kinker (Realize) was paid from May to October 2016, and the absence of any taxation or holiday pay.

[93] In these circumstances I am satisfied that Mr Kinker came to Australia in May 2016 on a Visitor visa and, at that time, he was a contractor to ABG. This arrangement remained in place until Mr Kinker gained a 457 visa at which time he became an employee of ABG.

Conclusion

[94] Mr Kinker was not an employee of ABG until 20 October 2016. His employment was terminated by ABG on 3 March 2017. Mr Kinker was therefore an employee for a period of less than six months.

[95] Mr Kinker was therefore not employed for the minimum employment period specified in the FW Act. He is therefore not eligible to make an application for relief from unfair dismissal.

[96] Mr Kinker’s application is therefore dismissed. An order 36 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

C. Kinker on his own behalf.

J. Tierney for Australian Brewers Guild Pty Ltd T/A Hawkers Beer.

Hearing details:

2017.

Melbourne:

June, 7.

August 8.

Final written submissions:

Applicant: 6 and 27 September 2017.

Respondent: 20 September 2017.

 1   Exhibit R3.

 2   For the relevant period covered by this decision Mr Kinker was the sole director and employee of Realize. Any reference to the engagement of Mr Kinker as a contractor is a reference to the engagement of Realize.

 3   Exhibit A11, para 39.3.

 4   Ibid, para 22.

 5   Ibid, para 18.

 6   Respondent’s submission of 2 June 2017 at para 8.

 7   Ibid at para 9.

 8   Exhibit A11.

 9   Exhibit R3, Attachment MH-3

 10   Exhibit A12, document 91.

 11   Ibid, Attachment MH-4.

 12   See Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215 at para 34.

 13   Ibid.

 14   Tattsbet v Morrow (2015) 233 FCR 46 at para 62 (Jessup J, Allsop CJ and White J agreeing).

 15   Transcript PN2689

 16   Transcript PN2778.

 17   Ibid, PN1148.

 18   Transcript PN1060.

 19   Ibid, PN2776.

 20   Outline of Submissions of the Respondent of 2 June 2017 at para. 34

 21   Exhibit A12, Document 111-1.

 22   Ibid, Documents 21-22.

 23   Ibid, Document 19

 24   Ibid, Document 18-1.

 25   Ibid, Document 20.

 26   Exhibit A11, paragraph 39.3.1.

 27   Exhibit A12, Documents 21-22.

 28   Ibid, Document 26

 29   Ibid, Document 24.

 30   Exhibit A12, Document 27; Transcript, PN3263-3269.

 31   Exhibit R3, paragraph 17(f).

 32   Exhibit A12, Document 20.

 33   Exhibit R3, para 17.

 34  Ibid, paragraph 22 (l).

 35   Exhibit A12, Document 63.

 36   PR596990.

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