Farhad Kia v Nickan Pty Ltd
[2024] FWC 512
•17 APRIL 2024
| [2024] FWC 512 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Farhad Kia
v
Nickan Pty Ltd
(U2023/12580)
| COMMISSIONER LIM | PERTH, 17 APRIL 2024 |
Application for an unfair dismissal remedy – whether the Applicant was an employee – characterisation of an oral contract – not an employee – application dismissed
On 15 December 2023, Mr Farhad Kia applied to the Fair Work Commission alleging that he was unfairly dismissed from his employment with Nickan Pty Ltd (the Respondent).
The Respondent is a franchisee for Muffin Break Karrinyup. The director for the Respondent is Mr Javad Majd. In 2022, Mr Majd invited Mr Kia to join him as a business partner in the franchise. By March 2023, Mr Kia was no longer a part-owner of the Respondent, but continued to turn up to work.
The Respondent has raised a jurisdictional objection to Mr Kia’s application on the basis that Mr Kia was not an employee.
It is uncontroversial that if Mr Kia is not an employee, then his claim for an unfair dismissal remedy cannot proceed as he cannot be an employee who was “dismissed” for the purpose of s 385(a) and 386(1) of the Act.
Given the circumstances of the matter, it was listed for a determinative conference on 27 February 2024 to deal with the jurisdictional question only. At the determinative conference Mr Kia represented himself and Mr Majd represented the Respondent. Both gave evidence and no other witnesses were called.
Prior to the hearing of the matter my chambers constructed a paginated court book consisting of submissions and evidence of the parties. References to evidence are by way of the relevant page number in the court book.
Assessing the evidence from the parties, I have found that Mr Kia was not an employee of the Respondent. His unfair dismissal application must therefore be dismissed. In coming to this decision, I have had regard to the relevant evidence and submissions of the parties, even if they have not been expressly referred to in this decision.
My detailed reasons follow.
The evidence
This is an unfortunately messy matter. Mr Kia and Mr Majd had poor or vague recollections of events and dates, and they directly contradicted each other frequently in their evidence. Their prior interactions were almost entirely verbal, with no witnesses, and both parties had very little documentation to support their contentions. Both Mr Kia and Mr Majd were also evasive in answering my questions, even when the questions were put to them directly multiple times. I found that neither of them was completely honest in their evidence and they did not give open answers. I did not find either of them to be particularly credible witnesses.
Both Mr Kia and Mr Majd do not speak English as a first language and Mr Kia required the assistance of a Persian translator throughout the proceedings. I have taken this into account when assessing their evidence.
2.1 Timeline of events
Mr Kia and Mr Majd are migrants from Iran. Mr Kia recently spent six years running a Croissant Express franchise in Perth, before taking a break from work.[1] Mr Kia and Mr Majd were friends.[2]
Mr Kia’s evidence is that in the first half of 2022, Mr Majd contacted Mr Kia and invited him to join him as a business partner in the Respondent’s Muffin Break franchise. Mr Majd and Mr Kia had discussions over a few months over the value of the franchise and how much Mr Kia would pay to buy into the business.[3]
Mr Majd’s evidence is that the conversation about Mr Kia becoming a business partner was an organic one that they both engaged in.[4]
Mr Kia gave evidence that as part of his deliberations on whether to become Mr Majd’s business partner, he decided to work at Muffin Break Karrinyup for a month.[5] This commenced on 8 July 2022. He did this to see how the business operated.[6] After working on the premises for a month, Mr Kia decided to buy into the business.[7] Mr Majd agrees that Mr Kia came in to trial working at the franchise for four or five weeks to assess the business and determine if he wanted to be a part of it.[8]
Mr Kia and Mr Majd did not sign any agreement or contract regarding this arrangement. Mr Majd suggested during the determinative conference that Mr Kia had written down the amounts of money involved in Mr Kia buying into the business. However, Mr Kia did not confirm this and neither produced any documentation to this effect.[9]
Mr Kia continued to work at the franchise. On or around 5 September 2023, Mr Kia had an interview with Muffin Break as part of their franchisee vetting process. On 6 September 2023, Mr Kia received the below email from Foodco Group Pty Ltd:
“Dear Farhad
Thank you for your time yesterday during our interview for your proposed purchase into Muffin Break Karrinyup.
Congratulations! You have successfully completed the interview stage and we have determined that you are a suitable candidate to become a Muffin Break franchisee.
Attached is a signed copy of the Interview Questionnaire and Privacy Collection Notice, which details the topics discussed with you.
In order for us to proceed to documentation we will require a copy of the ASIC search showing you detailed under the business entity.
If you have any questions, please do not hesitate to contact me.”[10]
After the franchisee interview, Mr Kia gave Mr Majd a cheque for $115,000 to buy 50% of the shares in the Respondent’s business.[11] Mr Kia and Mr Majd did not sign any contracts or paperwork at this time,[12] beyond the documentation required to be filed with ASIC.
Mr Kia’s evidence is that after this, he started to have concerns about the financial viability of the Respondent’s business. He says that he repeatedly asked Mr Majd for access to business accounts.[13] When he finally received access, the financials were so bad that he told Mr Majd that he no longer wished to continue with their business arrangement.[14] Mr Kia could not identify when this conversation happened, other than it occurred in 2022.[15]
Mr Majd denies the timing of this conversation. He says it occurred before Mr Kia gave him the cheque for $115,000.[16] Neither Mr Kia nor Mr Majd provided any evidence that supported their contentions regarding the timing of the cheque.
From August 2023 to December 2023, Mr Kia continued to work at Muffin Break Karrinyup. He was regularly rostered on by Mr Majd’s wife, who handled the roster for the business.[17]
The parties agree that in December 2022, Mr Kia took over the rostering for the Respondent.[18]
Towards the end of 2022, Mr Kia decided that he no longer wished to be shareholder in the Respondent’s business. Mr Kia and Majd discussed this. Around this time, Mr Majd and Mr Kia also discussed selling the business. Mr Majd and Mr Kia came to an agreement that Mr Kia would ‘sell’ the shares back to Mr Majd, and Mr Majd would pay him the value of the shares after the business was sold.[19] Mr Kia formally ‘sold’ his shares in the Respondent’s business in March 2023.[20]
Mr Majd agreed that Mr Kia did not receive any money when he sold his shares.[21] Mr Majd also says that they had agreed to sell the business, and until the business was sold, Mr Kia was still his business partner.[22]
Mr Kia’s evidence is that in his discussions with Mr Majd to divest his shares, Mr Majd asked him to continue working for the Respondent as an employee.[23] Mr Majd strenuously denied this.[24] Mr Majd’s evidence is that there was no conversation about Mr Kia becoming an employee or being hired. Mr Majd says that if he had made an offer of employment to Mr Kia, he would have given Mr Kia employment documents.[25]
Mr Kia and the Respondent tendered different extracts of what looks like the same email chain with a business broker regarding the sale of the franchise.[26] These emails show that by the end of March 2023, Mr Majd had made arrangements to advertise the franchise for sale. Further, they show Mr Kia communicating directly with the business broker, with the following email sent on 23 October 2023:
“Hi James,
I hope you are well. As you know, Muffin Break of Karrintup has been put in the market for sale and there have been no buyers. Based on your experience, do you have any suggestions as to how we can find a buyer for this business.
Perhaps one reason for this is the price at which we have put for this business, what do you think would be a good price?
If you could help us to sell this business as soon as possible, I would greatly appreciate it.
Kind Regards,
Farhad Kia”[27]
And on 28 October 2023:
“Hi James,
As you know, the selling price of the business is calculated based on several main parameters and every buyer will be willing to buy based on logical reasons and referring back to your previous email, you stated that the price for this business is $180,000.
It has been roughly 5 months since this business has been put in the market for sale and most brokers believe that a business should find its buyer within 4 months. Keeping this in mind, I can’t help but think that either our price for sale is not suitable or there hasn’t been enough effort put into selling the business.
I don’t believe that dropping the price would diminish the business in the eyes of buyers, but it is the amount of time in which the business stays in the market that does this.
I’m happy to wait a week for the potential buyer’s situation to be sorted out, but please review this business again and provide us with a price that would allow us to find a buyer as soon as possible (less than 10 days). Please also let me know if there is anything I can do to help.
Kind Regards,
Farhad Kia”[28]
Mr Kia says he sent these emails because Mr Majd raised issues with the business broker with him. Mr Kia’s evidence is that he looked into the emails between the broker and Mr Majd and raised questions with Mr Majd about the broker’s plan to sell the franchise. Mr Kia further says that Mr Majd asked him to raise the questions with the broker.[29] Mr Majd denies this and says that Mr Kia was involved in the discussions with the broker as Mr Kia was a partner in the business.[30]
On or around 7- 9 October 2023, Mr Kia and Mr Majd exchanged the following text messages (translated from Persian):[31]
| Mr Kia | If he said that the previous fiscal year concerned me |
| I can accept it | |
| Mr Majd | Please tell us how we cooperate |
| Because I have to send the roster tonight. | |
| Mr Kia | I am still your partner |
| Mr Majd | I say are you coming to work |
| Mr Kia | I’m coming today because I wasn’t feeling well |
| Mr Majd | Thank you today |
| Please, I hope it gets better | |
| Mr Kia | I wanted to know which part of the calculations is still unclear and you were not convinced |
| Mr Majd | Mr Farhad, I am really asking you not to ask me to explain anything on the phone again. Let me know if we can hold it tonight at our house at 8 o’clock. |
Mr Kia objected to the tendering of the above text messages on the basis that he could not find them in his phone. However, he did confirm that he sent the above text messages.[32] I accept that these text messages were exchanged between the parties.
Mr Kia also gave evidence that he intended the text message of “I am still your partner” as a question, not a statement.[33] I asked the Commission-appointed interpreter if there was anything in the messages such as an interrogative word or particle that would objectively indicate that it was a question. The interpreter informed me there was not, and that the message does not read like a question.[34]
On or around 7 October 2023,[35] Mr Kia sent a text message to Mr Majd.[36] The parties do not agree when the text was sent. The original text was in Persian, and was translated by the Commission-appointed translator as follows:
“Dear Mrs Zenib and Mr Javad, despite my repeated explanation about the income of each of us in this fiscal year, unfortunately this issue has not been resolved for you yet, therefore I have sent you a calculation as an attachment. I was hoping that after more than a year of our cooperation and achievement of the goals that I had previously stated, at least a little bit of trust would be achieved, but I realise that this was not the case with the last night’s talks.
Because, as I told Mr Javad several times, we will pay these amounts from the company’s account and I will try to return this money in my own way. Although this is very difficult and time-consuming, we must be patient. Now, even if there was a mistake in the calculation, which is not the case at all, and this – it’s completely correct, all you have to do was trust and the payment would be made when these payments were returned. Everyone would settle their share with the company.
Because this is the end of our cooperation, I will mention the steps of the works separately. (1) Please do not make any payment for my son and just put the end of the date of his work on 9/25/2023 in the account program and I will email you the official letter. I will remove myself from the accounting program as an admin so that I can no longer enter it and I will announce this to you and Nick and send Nick an email, official letter.
I will not enter the company’s bank account again and please change its password to be sure. I will send an email to Nick regarding the problems of the closing of the financial account of the entire company and I will not state any amount in it. I will try to get you a new bank card as soon as possible but I will not use it from today. I will return the cash that is in front of me from till or deposit it into company’s account.
Since I’m not mentally and morally in a good condition, I will not be able to work tomorrow and please do not call or send messages because I cannot answer. I will send you the next steps…”[37]
Both Mr Kia and Mr Majd agreed the above translation was accurate.[38]
Along with the above message, Mr Kia also sent Mr Majd a picture of a handwritten note. The note shows Mr Kia’s calculation of how much he says he is owed from the partnership agreement with Mr Majd based on the Respondent’s profits.[39]
On 1 December 2023, Mr Kia sent the below text to Mr Majd:[40]
“Good day, Mr Javad. Considering the efforts I have made for this business and since the business has been put up for sale and it may take some time for it to be sold, it is not logical that –
At the end of this story effectively, we will face a big tension because it will not be in the best interest of any of us so I suggest you continue the work and prepare or arrange a meeting that's in the presence of a lawyer or a witness, for example, Nick, regarding the share of each person after the sale of the business.”[41]
Mr Majd replied the same day with:
“Please do not send me any more messages.
I will do everything myself until the sale of my business and do not wish to see you again.
Any attempts to enter Muffin Break location will be considered a threat and will contact security immediately or if required, the Police.
Settlement of our accounts will be done in the presence of an authorised lawyer, after the sale.”[42]
Mr Kia did not turn up to work after this message.
2.2 Evidence regarding the relationship between the parties
Both parties agree that there is no documentation regarding a partnership agreement or an employment relationship, such as a contract, letter of offer, superannuation nomination form or tax file number declaration. Mr Kia also never went through with signing the formal franchisee agreement with Foodco Group.
Mr Kia did not receive any superannuation from the Respondent.[43] Mr Kia also did not receive any payslips during the time he worked for the Respondent. Mr Majd says that all the Respondent’s employees have letters of engagement and receive payslips.[44] Mr Kia denies that this is the case.[45] Neither party brought supporting documentation in support of their contentions.
Mr Kia tendered intermittent rosters dated from December 2022 to October 2023. These rosters show that Mr Kia was regularly rostered on for five to six days a week, working in excess of 50 hours a week. Mr Majd was rostered on for similar days and hours.
From the period of July 2022 to December 2023, Mr Kia’s evidence is that he received inconsistent amounts of money at intermittent dates. He gave the example of being paid amounts of $200, $300 and $3000 over September and October 2023.[46] However, he did not provide any bank statements to this effect.
Mr Kia provided a statement from the Respondent’s accounting system that shows the following payments made by the Respondent to him from the period of 1 July 2022 to 30 June 2023:[47]
| 17 September 2022 | $7,500 |
| 20 September 2022 | $7,500 |
| 12 October 2022 | $7,581.52 |
| 23 October 2022 | $814.80 |
| 8 November 2022 | $633.22 |
| 4 January 2023 | $5,000 |
| 6 March 2023 | $2,757.08 |
| 4 May 2023 | $3,000 |
The statement also shows that Mr Kia paid the Respondent $7,581.52 on 15 October 2023. For the 2022-2023 financial year he therefore received a net balance of $27,205.10 from the Respondent via direct debits.
Mr Kia also provided a similar statement for Mr Majd.[48] This statement shows that for the 2022-2023 financial year Mr Majd received $33,689.90, paid $19,352.46 and therefore received a net balance of $14,337.44. The statement also shows a line item for a “Income reconciliation as per muffin break report” for $80,979.43. Mr Kia raised issues regarding this line item, which were difficult to distil, but my understanding of Mr Kia’s contention is that this amount of money went to Mr Majd. Mr Kia’s grievance during the determinative conference appeared to be that he was entitled to half of the $80,979.43.[49]
Mr Kia says that the last payment he received from the Respondent was for $9000 on 21 July 2023.[50]
Mr Majd’s evidence is that the above deposits were in line with his partnership agreement with Mr Kia.[51] Mr Majd says that he and Mr Kia had an agreement that they would split the profit made each week between them. Mr Majd says that this money was paid to Mr Kia through a combination of electronic funds transfers and cash in hand.[52] The agreement was that at the end of the financial year, they would reconcile the money received for tax purposes.[53] Mr Majd says that the amount Mr Kia received each week was not consistent as it was dependent on the business profits.[54] Mr Majd also seemed to suggest that there was a cash component of $40,000 paid to Mr Kia over his time with the Respondent.[55]
Mr Majd also gave evidence that Mr Kia used the Respondent’s business credit card to pay for personal expenses such as fuel and laptops.[56] However, Mr Majd did not tender any receipts or documentation to support this contention.
Mr Kia denies that he ever received any cash component and that he would regularly have to ask Mr Majd to pay him money.[57] Mr Kia also raised an objection to Mr Majd’s evidence on the basis to be that Mr Majd received more money through this arrangement than he did.[58] Mr Kia agreed that he had used the Respondent’s credit card to buy a laptop, but that it was a gift from Mr Majd to Mr Kia’s daughter.[59]
During the determinative conference I asked Mr Kia why he kept turning up to work if the Respondent did not pay him wages. Mr Kia’s gave two conflicting responses. The first is that he trusted Mr Majd to pay him.[60] The second is that he was worried that if he did not turn up to work, Mr Majd would not pay him.[61] Mr Kia also gave evidence that he and his family are financially secure.[62]
Mr Kia tendered a one-page extract from his 2022-2023 tax return.[63] Mr Kia’s evidence is that his tax return was completed by the Respondent’s accountant.[64] Mr Kia’s tax return shows that:
(a)his main salary and wage occupation was a General Manager;
(b)he received $27,205 as allowances;
(c)no tax was withheld from this amount; and
(d)there were work related deductions made for laundry, safety shoes, uniforms, stationery, mobile phone and internet.
I found this tax return excerpt was of limited probative value given that it was a one-page extract.
Submissions
Mr Kia’s submissions in effect are that he must be an employee as he performed work for the Respondent, and he was not a business partner. Mr Kia says that after he divested himself of his shares in the Respondent’s business in March 2023, Mr Majd verbally asked him to work as an employee and he agreed. Mr Kia further argues that he did not receive the same share of the profits as Mr Majd, therefore he cannot be a business partner and thus must be an employee.
The Respondent’s submissions in summary are that Mr Kia was a business partner, not an employee. The Respondent effectively contends that Mr Kia received money based on the profits of the business and was involved in high-level decisions of the business. The Respondent submits that there was never any conversation where Mr Kia was asked to work as an employee.
Consideration
Neither party made submissions regarding the appropriate test or criteria to be applied in assessing whether Mr Kia was an employee.
The principles and approach to an oral contract in the employment context were recently considered by the Full Court of the Federal Court in EFEX Group Pty Ltd v Bennett (EFEX).[65]
In Katzmann and Bromwich JJ’s joint reasons, they affirmed that where the rights and duties of the parties are “comprehensively committed to a written contract”, and the contract is not a sham, varied, waived or the subject of an estoppel, the obligations established by that contract are decisive of the character of the legal relationship.[66]
However, in EFEX, there was no written contract at all. Much like the matter before me, the contract reached between the parties in EFEX was wholly oral, with sparse details of the agreement.
In considering such a situation, Katzmann and JJ affirmed the following principles drawn from relevant cases:
(a)Where there is no written contract and no evidence of a particular conversation during which the contract was made, “evidence of the parties’ conduct must necessarily be considered in order to draw inferences as to whether the meeting of minds necessary to create a contract has occurred, and what obligations they have thereby undertaken”.[67]
(b)Where there is no written contract, the identification of the parties’ contractual rights will proceed differently. However, the fundamental task and focus remains the same: what are the parties’ contractual rights and obligations, and how are they to be characterised? This task is not to be subsumed by consideration of how the parties behaved in the performance of their contract.[68]
(c)The terms of an oral contract may be able to be inferred from the circumstances, such as the parties’ conduct or a course of dealing between them, or implied where necessary for business efficiency.[69]
(d)Regardless of whether a contract is written or oral (in whole or in part), the characterisation of the relationship between the parties depends on their contractual rights. It does not depend on circumstances, facts or events that do not affect those rights.[70]
(e)The principles of contract interpretation apply to the terms of an unwritten contract that can be ascertained, inferred or implied. Regard may be had as to the circumstances of how the contract was made, as well as events and matters known to the parties at the time of the agreement. Generally, things said or done after a contract is made are not legitimate aids to its construction.[71]
(f)Once the contours of the legal relationship have been identified, there can be consideration of whether the relationship was one of employment. This may involve assessment of the extent to which the alleged employer has the right to control how, when and where the alleged employee performs the work and the extent to which the alleged employee can be seen to be working in their own business.[72] Another way of framing this consideration is to examine whether, by the terms of the contract, the person is contracted to work in the business or enterprise of the alleged employer.[73]
Lee J concurred with the plurality’s decision in EFEX. His Honour also affirmed that it is well-established that post-contractual conduct evidence is admissible to resolve what was said in forming an oral contract. Such conduct may be considered not only for the purpose of inferring whether a binding agreement had been reached, but also for the purpose of identifying its necessary terms.[74]
I now turn to consider these principles in the context of the current matter.
As outlined in paragraph [8] of this Decision, it was difficult to assess Mr Kia’s and Mr Majd’s evidence. I also add that I found it difficult to discern the rationale for many of the actions Mr Kia and Mr Majd took. I have therefore placed greater weight on the documentation and text messages that were provided. I have also had regard to the fact that as the applicant, the onus is on Mr Kia to prove that he is within the Commission’s jurisdiction.
Having considered the evidence from Mr Kia and Mr Majd, I make the following findings.
There was no written or oral contract between Mr Kia and Mr Majd when Mr Kia commenced working at the business in August 2023. The purpose of that work was for Mr Kia to determine whether he wanted to buy into the business. There could therefore be no employment contract and Mr Kia was not an employee at this time.
In September 2023, Mr Kia and Mr Majd made an oral contract that Mr Kia would become a half-owner of the Respondent. A term of the agreement was that Mr Kia would give Mr Majd $115,000 in return for 50% of the Respondent’s shares. I find that Mr Kia was not an employee at this time; he was an owner of the business.
A further term of the agreement was that any profit made by the Respondent would be shared between Mr Kia and Mr Majd, as submitted by the Respondent. I am persuaded by Mr Kia’s text messages that show there was a common intention that profits would be shared between himself and Mr Majd. I refer to his text message on 7 October 23 (outlined at paragraph [30]) where Mr Kia states that he has repeatedly explained the income for both of them for the fiscal year and sent through the attachment detailing how the profit should have been split between them.
Over the course of late 2022 to March 2023, Mr Kia and Mr Majd discussed Mr Kia selling his shares in the business back to Mr Majd. I accept that Mr Kia and Mr Majd discussed Mr Kia continuing their arrangement whereby he performed work for the Respondent. I do not accept Mr Kia’s evidence that Mr Majd explicitly asked him to become an employee of the Respondent.
I find that Mr Kia and Mr Majd agreed to vary the terms of the original contract in the following ways:
(a)Mr Kia would sell his 50% of the Respondent’s shares back to Mr Majd;
(b)The payment for those shares would be deferred until the business was sold;
(c)Until the business was sold, Mr Kia would continue to receive a share of the Respondent’s profits; and
(d)Their relationship, whereby Mr Kia would still act as an owner of the Respondent, would continue.
In reaching these findings on the variation of the parties’ original contract, I rely on the following post-contractual conduct:
(a)Mr Kia did sign the relevant ASIC paperwork to divest himself of his shares in March 2023.
(b)The communications between Mr Kia and Mr Majd indicate a common intention that there would be payment to Mr Kia after the business was sold. They also include a common intention that there would be a division and sharing of the profit between them.
(c)In the day-to-day operations of the Respondent, nothing changed. Mr Kia continued to be in charge of rostering (including the determination of his own hours); Mr Kia continued to have a high degree of authority in the Respondent’s business; and nothing changed in how Mr Kia received payments to his bank account – they continued to be irregular amounts deposited on an intermittent basis.
(d)Mr Kia did not sign any employment documentation, such as a contract of employment, a superannuation fund nomination form or tax file number declaration. Mr Kia has at least six years’ experience in running a franchise in Australia. The Respondent also engages employees. Both parties are aware of an employer’s obligations when hiring a new employee.
(e)Mr Kia’s emails to the business broker denote collective ownership. Even if I accept Mr Kia’s evidence that Mr Majd asked him to correspond with the business broker, I find that the words Mr Kia chose to use (i.e. the use of “we” and “us” in connection with the business) were deliberate and reflect the common understanding of the parties.
This varied contract and the accompanying arrangements remained in place until Mr Majd’s message on 1 December 2023 telling Mr Kia not to return to Muffin Break Karrinyup.
I find that, properly characterised, Mr Kia’s contract with the Respondent under the varied contract was not a contract of employment. Mr Kia was not under the Respondent’s contractual control as to how, when and where he worked. Mr Kia did have a vested interest in working at the franchise as his payments were contingent on the franchise operating profitably and selling well, but this does not translate to Mr Kia being bound contractually to work for the Respondent. I find that Mr Kia continued to work for the Respondent because it benefited him under the contract between the parties, and Mr Kia also wanted to keep an eye on his investment.
For completeness, I address Mr Kia’s argument that he did not receive the same share of the profits as Mr Majd, therefore he cannot be a business partner and thus must be an employee. This argument is misconceived and starts at the wrong point. Mr Kia’s grievances regarding how the profit was to be split is a dispute about the term of their contract, not an indication that he was an employee at the time.
As Mr Kia was not an employee of the Respondent, his application must be dismissed. An order to this effect will issue separately.
COMMISSIONER
Appearances:
F Kia, Applicant
J Majd for the Respondent
Hearing details:
2027.
Perth.
February 27.
[1] Transcript, 27 February 2024, PN21; PN47.
[2] Ibid, PN74.
[3] Ibid, PN26 – PN38.
[4] Ibid, PN83.
[5] Ibid, PN41.
[6] Ibid, PN38-PN39.
[7] Ibid, PN42-PN44.
[8] Ibid, PN88-PN89.
[9] Ibid, PN90-PN95.
[10] Digital Court Book (DCB), page 255.
[11] Transcript, 27 February 2024, PN97-PN122.
[12] Ibid, PN126-PN128; PN228-PN229.
[13] Ibid, PN133-PN135.
[14] Ibid, PN136
[15] Ibid, PN172.
[16] Ibid, PN196-PN202.
[17] Ibid, PN266-PN268.
[18] Ibid, PN444-PN445.
[19] Ibid, PN912-PN930.
[20] DCB, page 266.
[21] Transcript, 17 February 2024, PN934-PN935.
[22] Ibid, PN917.
[23] Ibid, PN913.
[24] Ibid, PN933.
[25] Ibid, PN915.
[26] DCB pages 245-247; 267-276.
[27] Ibid, page 276.
[28]Ibid, pages 274-275.
[29] Transcript, 27 February 2024, PN1117-PN1118.
[30] Ibid, PN1128-PN1133.
[31] Exhibit R3, translated PN660-PN700 of the transcript.
[32] Transcript, 27 February 2024, PN768-PN771; PN795-PN802.
[33] Ibid, PN699.
[34] Ibid, PN716-PN723.
[35] Ibid, PN455; PN1059.
[36] Exhibit R1.
[37] Transcript, 27 February 2024, PN466-PN470.
[38] Ibid, PN478-PN482.
[39] Exhibit R4; Ibid, PN870; PN873-PN874.
[40] Exhibit R2.
[41] Transcript, 27 February 2024, PN604-PN609, translation provided by interpreter. Both parties agreed as to accuracy, see: PN619-PN623.
[42] DCB, pages 176-177.
[43] Transcript, 27 February 2024, PN989-PN990.
[44] Ibid, PN428.
[45] Ibid, PN429-PN430.
[46] Ibid, PN154.
[47] Exhibit A3.
[48] Exhibit A2.
[49] Transcript, 27 February 2024, PN344 – PN360.
[50] Ibid, PN967-PN968.
[51] Ibid, PN987.
[52] Ibid, PN277-PN283.
[53] Ibid, PN283.
[54] Ibid, PN290.
[55] Ibid, PN428.
[56] Ibid, PN597-PN598.
[57] Ibid, PN385.
[58] Ibid, PN308-PN310.
[59] Ibid, PN976.
[60] Ibid, PN953.
[61] Ibid, PN953.
[62]Ibid, PN973.
[63] DCB, page 242.
[64] Transcript, 27 February 2024, PN409; PN994.
[65] [2024] FCAFC 35.
[66] CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1, [43] – [44], per Kiefel CJ, Keane and Edelman JJ; [183], per Gordon J.
[67] EFEX, [7], citing Personnel Contracting at [177] per Gordon J (Steward J agreeing), as summarised in Chiodo v Silk Contract Logistics [2023] FCA 1047 (Chiodo) at [9]
[68] EFEX, [8], citing Chiodo at [8] – [9].
[69] EFEX, [9], citing Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; 406 ALR 678 at [21]–[22] per Kiefel CJ and Gageler J.
[70] EFEX, [10].
[71] EFEX, [11].
[72] EFEX, [13].
[73] EFEX, [14].
[74] EFEX, [58]-[59].
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