Geofabrics Australasia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union and others named in Schedule A

[2018] FWC 1904

[2018] FWC 1904

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute

Geofabrics Australasia Pty Ltd
v
Construction, Forestry, Maritime, Mining and Energy Union and others named in Schedule A
(RE2018/172)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 4 APRIL 2018

Dispute concerning the operation of Part 3-4 of the Act; proceedings commenced in FWC and QIRC concerning a dispute covering substantially common matters; application by state registered union and second to sixth named respondents for the proceeding in FWC to be stayed or adjourned; whether commencement and maintenance of FWC proceeding is an abuse of process; application to stay or adjourn FWC proceeding dismissed.

[1] On 27 March 2018 I published a decision dismissing the application by the Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland (CFMEUQ) and the second to sixth named respondents (referred to hereafter as the “CFMEUQ Applicants”) to stay or adjourn proceedings in connection with an application by Geofabrics Australasia Pty Ltd (Geofabrics) under s.505 of the Fair Work Act 2009 for the Fair Work Commission (Commission) to deal with a right of entry dispute (Commission proceeding). The Construction, Forestry, Mining and Energy Union, now known as the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) together with five named permit holders are respondents to Geofabrics’ application. These are my reasons for that decision.

[2] In addition to the Commission proceeding, Geofabrics has applied under s.142(4)(b) of the Work Health and Safety Act 2011 (Qld) (WHS Act) for the Queensland Industrial Relations Commission (QIRC) to deal with a dispute (QIRC proceeding). It is apparent that both proceedings were issued on the same day. There is some, and perhaps not an insubstantial, overlap between the two proceedings. The CFMEUQ is a party to the dispute the subject of the QIRC proceeding. That organisation is registered as an employee organisation under the Industrial Relations Act 2016 (Qld). It is not a respondent to the Commission proceeding.

[3] Geofabrics is a manufacturer of geosynthetic textiles including polyster and polypropylene staple fibre non-woven fabric. It operates manufacturing facilities at its South Queensland Manufacturing site located at 69 Motorway Circuit, Ormeau, Queensland (SQM site) and at its Albury Manufacturing site located at 79 Boronia Street, North Albury, New South Wales.

[4] The majority of Geofabrics’ employees at its SQM site are covered by the Geofabrics Australasia Pty Ltd (South Queensland Manufacturing) Enterprise Agreement 2015 (Agreement). The relevant classifications under the Agreement for Geofabrics’ employees employed at the SQM site are production, stores and laboratory employees classified at SQM1 to SQM5 under the Agreement and maintenance employees classified as Fitter 1 to Fitter 3 and Planner 1 to Planner 2 under the Agreement. The SQM classification levels are said to correlate with classifications contained in the Textile, Clothing, Footwear and Associated Industries Award 2010.

[5] According to Geofabrics, the dispute the subject of the Commission proceeding concerns an attempt by the second to sixth named respondents to enter the SQM site for the purpose set out s.484 of the Act, that is to hold discussions with relevant employees. The dispute also concerns the purported exercise of a right of entry under the WHS Act and conduct of the second to sixth named respondents related thereto. 


[6] Geofrabrics asserts that on each of 30 January 2018 and on 7, 8 and 12 February 2018 various of the second to sixth named respondents sought to exercise a right of entry to hold discussions under s.484 of the Act. Geofrabics alleges that on each occasion noted above, one or more of the second to sixth named respondents in attendance on the occasion alleged stated an intention to hold discussions with Geofrabics’ employees working at the SQM site. Geofrabics alleges that after being refused entry for the purposes of holding discussions with relevant employees, various of the second to sixth named respondents gave Geofrabics (or more properly, representatives thereof) written notice purporting to be notices pursuant to s.117 of the WHS Act and, thereafter purported to exercise an entry pursuant to that act.

[7] Geofrabics contends that it will in the Commission proceeding allege that the real purpose of the entries on the dates earlier specified by various of the second to sixth named respondents was to hold discussions with relevant employees and not for the purpose of investigating a suspected contravention of the WHS Act.

[8] The CFMEUQ Applicants contend that at the heart of each proceeding is the invocation of the jurisdiction of the relevant tribunal to deal with a dispute about right of entry. They contend that on Geofabrics’ case in each proceeding it asserts the exercise right of entry was a health and safety entry under s.117 of the WHS Act.

[9] The CFMEUQ Applicants contend that was no attempt by any of the second to sixth named respondents to exercise any other type of right of entry, although, on Geofrabics’ case, there was a request to meet with certain employees. They contend that such a request, without more, does not amount to the exercise or attempted exercise of rights under Part 3-4 of the Act. 


[10] The CFMEUQ Applicants contend that at no point in Geofabrics’ application in the Commission proceeding is it asserted that any of the second to sixth named respondents sought to exercise a right of entry on any basis other than the WHS Act. They contend that matters alleged in Geofabrics’ application in the Commission proceeding cannot, on any view, amount to a case about anything other than a case about WHS right of entry. The facts alleged by Geofabrics confine the case to one in respect of a WHS entry.

[11] The consequence of Geofrabrics’ dual applications is that the second to sixth named respondents are required to meet two cases involving the same facts in two different tribunals simultaneously where the relief sought is to all intents and purposes identical.

[12] The grounds on which the CFMEUQ Applicants press the stay application are as follows:

1. The Commission proceeding is an abuse of process as it concerns precisely the same subject matter as the QIRC proceeding and seeks the same relief;

2. The factual allegations made in paragraphs 1 to 31 of the QIRC application are virtually identical to those made at paragraphs 4 to 34 of the Commission application. The two applications concern precisely the same entries to the relevant site, being on 30 January 2018, 7 February 2018, 8 February 2018 and 12 February 2018;

3. In each of the applications, Geofrabics contends that the CFMEU and/or the CFMEUQ have no right to represent the industrial interests of employees at the relevant site. Each application consequently asks the Commission and the QIRC to determine that same controversy simultaneously;

4. In each of the applications the only right of entry which it is alleged was exercised or sought to be exercised was an entry under the WHS Act; 
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5. The jurisdiction of the QIRC to deal with the dispute has been invoked by the Geofrabics; and

6. It is oppressive and vexatious to require the respondents to meet the same case twice in two different forums at the same time.

[13] It seems to be accepted by all parties that I have power under the Act to make an order of the type sought by the CFMEUQ Applicants. The Commission has control over its own processes under s.590 of the Act. 


[14] However each of Geofrabics, the CFMEU and the TCFUA opposed the making of such an order. All parties also appear to accept that I should apply principles similar to those adopted by courts in ordering a stay of a proceeding in order to prevent abuse of process. These principles are summarised below.

[15] A court may order a stay a proceeding as an abuse of process if, the continuation of the proceeding would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate a new case which has already been disposed of by earlier proceedings. 1 However the categories of that which may amount to an abuse of process are not closed.2 In Tomlinson v Ramsay3 the High court discussed an abuse of process and said:

“Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of the Court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.” 4

[16] It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in a court if an action is already pending with respect to the matter in issue. 5 However the prima facie position may be displaced in an appropriate circumstance.6

[17] In Sunland Waterfront (BVI) Limited v Prudentia Investments 7 the Victorian Court of Appeal considered the application of this principle noting that the existence of simultaneous proceedings alone does not establish vexation and oppression and that something more is needed. The Court said:

“459 It is true that existence of simultaneous proceedings alone does not establish vexation and oppression. Something more is needed. The passage from of Finkelstein J’s reasons upon which Sunland relies states that the applicant must ‘shew that there is vexation in point of fact that is to say, that there is no necessity for harassing the Defendant by double litigation’.

460 Justice Gordon (with whom Stone J agreed) in her reasons in TS Production, also discussed what, in addition to the mere co-existence of proceedings, was required to constitute vexation or oppression. Her Honour observed:

In this case, the only “something more” to which the appellant could point to was the inefficiency and additional cost that would be incurred if both proceedings were allowed to go ahead. The presiding judge appears to have accepted this submission (see reasons of Finkelstein J at [35]-[37]); however, I cannot. It is not enough to observe that prosecution of the two proceedings may be, even would be, burdensome. The references to “unjustified” and “unfairly” are important. When it is understood that the rights and relief in issue in the two proceedings are different, and that “something ... can be gained by [the foreign proceedings] over and above what may be gained” in this Court, it is not arguable that it is either unjustified or unfair to maintain claims based on the US rights in the Illinois proceedings simultaneously with claims based on the Australian rights in the Federal Court.

461 These passages support the view that the focus of the inquiry as to whether proceedings are vexatious or oppressive is not primarily on the additional expense and cost to the defendant, but rather on whether the bringing of a second proceeding in respect of the same controversy is unnecessary, ‘unjustified’ or ‘unfair’. The authorities indicate that what is to be established in evidence is not primarily that the duplication of proceedings will lead to additional cost, expense, or harassment, but rather that there is nothing to be gained from the parallel proceeding; alternatively, that complete relief is available in a single proceeding. If there is a legitimate advantage that can be gained, the fact that the defendant will suffer additional cost and harassment is easily outweighed. The authorities show that what is required is not a straightforward balancing exercise that weighs the cost and harassment incurred by an applicant (and presumably their ability to bear that cost and harassment) against the advantage gained by the party bringing the proceeding. Rather, as follows from the majority’s reasoning in CSR, the balance is skewed heavily in favour of allowing a party to proceed when there is something substantial that may be gained in the foreign proceedings and is skewed heavily against so allowing when there is not. 

462 In our view, his Honour was correct in holding that once the applicant has established that a party is seeking to maintain two proceedings that seek substantially the same relief in two jurisdictions, the onus shifts to that party to show that maintaining the two proceedings is justified.”  8

[18] It seems plain therefore that in addition to showing the existence of simultaneous proceedings, something more will need to be shown such as, that there is nothing to be gained from the parallel proceeding or that complete relief is available in a single proceeding. However if there is a legitimate advantage that can be gained, that a party will suffer additional cost and harassment may be outweighed.

[19] In Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd 9 Lockhart J set out some considerations relevant to determining whether it is appropriate for a court to stay a proceeding including in cases alleging the maintenance of the proceeding was abuse of process. These include:

•  which proceeding was commenced first. Whether the termination of one proceeding is likely to have a material effect on the other.

•  the public interest. The undesirability of two courts competing to see which of them determines common facts first.

•  consideration of circumstances relating to witnesses. Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.

•  the undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.

•  how far advanced the proceedings are in each court. The law should strive against permitting multiplicity of proceedings in relation to similar issues.

•  generally balancing the advantages and disadvantages to each party. 10

[20] In Bella Products Pty Ltd v Creative Designs International Ltd 11, Finkelstein J said that the following propositions might be drawn from the aforementioned considerations:

“First, for obvious reasons it is undesirable that two courts should determine the same dispute. Second, practical considerations based on common sense and fairness should dictate which action should proceed first.” 12

[21] The CFMEUQ Applicants contend that the maintenance of the Commission proceeding together with the QIRC proceeding is prima facie an abuse of process. Moreover, they say that it would be unjustifiably oppressive to require the CFMEUQ Applicants to meet at the same time, the same case involving the same facts and seeking adjudication of the same allegations and relief in respect of the applications in two tribunals.

[22] Having regard to the principles discussed above, it is first necessary to consider the nature of Geofrabrics’ application and the jurisdiction invoked under Part 3-4 of the Act.

[23] Geofrabrics’ application is one made pursuant to s.505 of the Act. That is, it asks the Commission to deal with a dispute “about the operation of” Part 3-4 of the Act. The Commission’s powers in dealing with the dispute include, but are not limited to, arbitration. Insofar as the Commission deals with such a dispute by arbitration, its exercise of power does not involve the exercise of judicial power and the adjudication of existing legal rights between disputants. 


[24] The earlier noted contention of the CFMEUQ Applicants that a request to meet, without more, does not amount to the exercise or attempted exercise of rights under Part 3-4 does not concern the Commission’s jurisdiction under s.505 of Act. It is a contention as to the conclusion that should be withdrawn from facts, which are in dispute. The nature and purport purpose of the request is in dispute.

[25] Geofrabrics’ application engages the jurisdiction under s.505 of the Act. It identifies that on 30 January 2018, 7, 8 and 12 February 2018, the second, third and sixth respondents variously attended the Geofrabrics’ premises and stated that the permit holders “wished to speak to” employees or the TCFUA’s delegates. According to the application, the requests made on 30 January 2018, 7, 8 and 12 February 2018 were not expressed to be for any purpose connected with the WHS Act. Entry under WHS Act was, according to the application, being sought, on the occasions of two of the attendances, after the request to enter to “speak to” employees had been refused. 


[26] On their face, these allegations engage the jurisdiction under s.505 of the Act. This is because the allegations show the existence of a dispute about the operation of s.484 of the Act. Section 484 provides the following:

s.484 Entry to hold discussions

A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers:
(a)  who perform work on the premises; and
(b)  whose industrial interests the permit holder's organisation is entitled to represent; and
(c)  who wish to participate in those discussions.
Note 1:       A permit holder, or the organisation to which the permit holder belongs, may be subject to an order by the FWC under section 508 if rights under this Subdivision are misused.
Note 2:       A person must not refuse or unduly delay entry by a permit holder, or intentionally hinder or obstruct a permit holder, exercising rights under this Subdivision (see sections 501 and 502).
Note 3:       Under paragraph 487(1)(b), the permit holder must give the occupier of the premises notice for the entry. Having given that notice, the permit holder may hold discussions with any person on the premises described in this section.

[27] The second to sixth named respondents are permit holders under the Act. Each is able to enter relevant premises under s.484 provided, inter alia, he has the prescribed purpose. Whether the relevant respondents had that purpose seems to me to be a matter raised on the face of the application. Whether the relevant respondents sought to exercise entry rights under s.484 in making the request on each occasion is a matter to be determined once all of evidence is heard.

[28] Moreover, even if as contended by the CFMEUQ Applicants the facts alleged in Geofrabrics’ application are confined to a WHS entry, jurisdiction under s.505 is nevertheless engaged.

[29] Section 494 of the Act provides:

s.494 Official must be permit holder to exercise State or Territory OHS right

Official must be permit holder
(1)  An official of an organisation must not exercise a State or Territory OHS right unless the official is a permit holder.
Note:          This subsection is a civil remedy provision (see Part 4-1).
Meaning of State or Territory OHS right
(2)  A right to enter premises, or to inspect or otherwise access an employee record of an employee that is on premises, is a State or Territory OHS right if the right is conferred by a State or Territory OHS law, and:

(a)  the premises are occupied or otherwise controlled by any of the following:

   (i)  a constitutional corporation;
   (ii)  a body corporate incorporated in a Territory;
   (iii)  the Commonwealth;
   (iv)  a Commonwealth authority; or
   (b)  the premises are located in a Territory; or
   (c)  the premises are, or are located in, a Commonwealth place; or
   (d)  the right relates to requirements to be met, action taken, or activity undertaken or controlled, by any of the following in its capacity as an employer:
   (i)  a constitutional corporation;
   (ii)  a body corporate incorporated in a Territory;
   (iii)  the Commonwealth;

   (iv)  a Commonwealth authority; or
   (e)  the right relates to requirements to be met, action taken, or activity undertaken or controlled, by an employee of, or an independent contractor providing services for, any of the following:
   (i)  a constitutional corporation;
   (ii)  a body corporate incorporated in a Territory;
   (iii)  the Commonwealth;
   (iv)  a Commonwealth authority; or
   (f)  the exercise of the right will have a direct effect on any of the following in its capacity as an employer:
   (i)  a constitutional corporation;
   (ii)  a body corporate incorporated in a Territory;
   (iii)  the Commonwealth;
   (iv)  a Commonwealth authority; or
   (g)  the exercise of the right will have a direct effect on a person who is employed by, or who is an independent contractor providing services for, any of the following:
   (i)  a constitutional corporation;
   (ii)  a body corporate incorporated in a Territory;
   (iii)  the Commonwealth;
   (iv)  a Commonwealth authority.
Meaning of State or Territory OHS law
             (3)  A State or Territory OHS law is a law of a State or a Territory prescribed by the regulations.

[30] In Bragdon v Director of the Fair Work Building Industry Inspectorate 13 the Court said:

“[14] The evident purpose of s 494 is to ensure that an official does not exercise any State or Territory OHS right which that official might have unless the official also holds an entry permit under the FW Act. This correlates with a provision in the NSW WHS Act to similar effect (s 124: see below at [24]). Thus, although Mr Bragdon and Mr Kong each held a federal entry permit, neither was entitled to exercise a State OHS right in New South Wales.

[15] If either Mr Bragdon or Mr Kong had been entitled to exercise a State or Territory OHS right on 6 June 2013, the following further restrictions in the FW Act would have applied to them.

[16]  They could not (ie must not) have exercised a State or Territory OHS right to inspect or otherwise access an employee record without having given 24 hours written notice (FW Act, s 495). They could not exercise a State or Territory OHS right, if asked to produce their entry permit (ie the federal entry permit), unless the permit was produced (FW Act, s 497). There are similar requirements in Pt 7 Div 4 of the NSW WHS Act (for example, see s 122 below at [23]).

[17]  They might only exercise a State or Territory OHS right during working hours (FW Act, s 498), they must not contravene a condition on the entry permit (FW Act, s 496) and they must comply with reasonable requests to comply with the occupational health and safety requirements applying to the premises (FW Act, s 499).

[18] In addition, the prohibitions in Div 4 would have applied, including:

500 Permit holder must not hinder or obstruct

A permit holder exercising, or seeking to exercise, rights in accordance with this Part must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

Note 1: This section is a civil remedy provision (see Part 4-1).

Note 2: A permit holder, or the organisation to which the permit holder belongs, may also be subject to an order by the FWC under section 508 if rights under this Part are misused.

Note 3: A person must not intentionally hinder or obstruct a permit holder, exercising rights under this Part (see section 502).

…

503 Misrepresentations about things authorised by this Part

(1)A person must not take action:

(a)with the intention of giving the impression; or

(b)reckless as to whether the impression is given;

that the doing of a thing is authorised by this Part if it is not so authorised.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2)Subsection (1) does not apply if the person reasonably believes that the doing of the thing is authorised.

[19] Correspondingly, they would have enjoyed the following protections as permit holders:

501 Person must not refuse or delay entry

A person must not refuse or unduly delay entry onto premises by a permit holder who is entitled to enter the premises in accordance with this Part.

Note: This section is a civil remedy provision (see Part 4-1).

502 Person must not hinder or obstruct permit holder

(1)A person must not intentionally hinder or obstruct a permit holder exercising rights in accordance with this Part.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2)To avoid doubt, a failure to agree on a place as referred to in paragraph 483(5)(b), 483C(6)(b) or 483E(6)(b) does not constitute hindering or obstructing a permit holder.

(3)Without limiting subsection (1), that subsection extends to hindering or obstructing that occurs after an entry notice is given but before a permit holder enters premises.” 14

[31] It seems clear from the above that the purpose of s.494 of the Act is to ensure that an official does not exercise a State or Territory OHS right which that official might have, unless the official also holds an entry permit under the Act. It also seems clear from the above that a permit holder exercising a right of entry under a “State or Territory OHS law”, and in this proceeding under the WHS Act, is subject to the restrictions and obligations set out in ss.495, 496, 497, 498, 499, 500 and 503 of the Act. 


[32] In its application, Geofabrics points to asserted contraventions of ss.500 and 503 of the Act. Allegations are variously made against each of the second to sixth named respondents that they engaged in conduct during various of their attendances on 30 January 2018, 7, 8and 12 February 2018 which was in contravention of either s.500 or s.503 of the Act. Thus, even if the Commission proceedings were limited to a contest about purported entry of an OHS purpose under the WHS Act, the reasoning in Bragdon would suggest that there is a disputed conduct is about the operation of Division 3 of Part 3-4 of the Act. 


[33] Without delving into the detail of the QIRC proceeding, there is a clear overlap and commonality between the allegations made in that proceeding and those in this proceeding. The concurrent proceedings raise the possibility of the two tribunals competing to make factual findings about the same factual allegations. This is plainly undesirable. The Commission and the QIRC proceedings were commenced on the same day. Although directions have been made in relation to the conduct of the QIRC proceeding, I do not consider for that reason alone, that any question of temporal precedence is to be given to the QIRC proceeding.

[34] Against the undesirability of concurrent proceedings covering much of the same factual issues and the burden of requiring the second to sixth named respondents to meet the same or similar case in two different fora at the same time must of course be weighed other considerations discussed below. These considerations in the circumstances of this case outweigh those that would favour the grant of a stay or an adjournment of the Commission proceeding.

[35] The contention that commencement and maintenance of the Commission proceeding is an abuse of process is readily put to one side when particular character of the underlying dispute in relation to the Commission proceeding is properly identified and understood. Although the underlying controversy sought to be agitated by Geofabrics concerns purported WHS right of entry, it is not confined only to this. As is evident from the earlier discussion, the dispute also concerned a purported exercise of rights of entry under s.484 of the Act as well as the conduct of the second to sixth named respondents when purporting to exercise entry rights.

[36] In addition, the QIRC proceeding which concerns a dispute about the exercise or purported exercise by a WHS entry permit holder of a right of entry under this Act cannot resolve the abovementioned controversy concerning the operation of Part 3-4 of the Act. There is thus some legitimate advantage that can be gained by Geofabrics in maintaining the Commission proceeding. That advantage cannot be gained or pursued in the QIRC proceeding.

[37] It seems to me therefore that the commencement and maintenance of the Commission proceeding is not an abuse of process given the dual character of the underlying dispute, the inability of the QIRC proceeding to deal with a dispute about rights of entry under Part 3-4 of the Act and the breadth of this Commission’s jurisdiction given the regulation of rights of entry under State OHS laws under the Act. I consider that there is nothing unnecessary, unjustified or unfair in the maintenance of the Commission proceeding in the circumstances. 


[38] Moreover, whereas the QIRC proceeding cannot resolve the entirety of the controversy, the Commission proceeding is, in my judgment, more likely to so do. The dispute, the subject of the Commission proceeding will engage with not only the operation of s.484 of the Act, but also with the other provisions of Part 3-4 earlier noted which are relevant to the dispute in relation to the exercise of WHS rights under the WHS Act. It is therefore possible that the resolution of the Commission proceeding is able to deal with the totality of the dispute between the parties. As earlier noted, these aspects of the dispute cannot be determined by the QIRC proceeding.

[39] I do not consider that there are any other discretionary considerations that would weigh in favour of a grant of the stay or adjournment of the Commission proceeding sought by the CFMEUQ Applicants.

[40] It should also be observed that the Commission proceeding raises the question of whether the CFMEU is entitled to represent the industrial interests of employees working at the SQM site. Given the amalgamation of, inter alia, the CFMEU and the TCFUA since the commencement of the Commission proceeding, it remains to be seen whether this remains a live issue in the Commission proceeding.

[41]For the reasons given, the application by the CFMEUQ Applicants that the Commission proceeding be stayed or adjourned is dismissed.

DEPUTY PRESIDENT

Appearances for the purpose of the stay application hearing:

Ms A Coulthard, Counsel for Geofabrics.

Mr H Borenstein, QCfor the CFMEU.

Mr W Friend, QC for the CFMEUQ and second to sixth named respondents.

Mr S Moore, QC for the TCFUA.

Hearing details:

2018.

Brisbane VC to Melbourne.

23 March.

Printed by authority of the Commonwealth Government Printer

<PR601669>

SCHEDULE A

Mr Arturo Menon

Mr John Tucker

Mr Luke Gibson

Mr Matthew Parfitt

Mr Paul Taylor

 1   Walton v Gardiner (1993) 177 CLR 378 at 393; Batistatos v Road Traffic Authority (NSW) (2006) 226 CLR 256 at 265 [9] - [16]

 2   Rogers v The Queen (1994) 181 CLR 251 at 286 


 3 (2015) 256 CLR 507

 4   Ibid at [25]

 5   Henråy v Henry (1996) 185 CLR 571 at 590

 6   Oswal v Burrup Fertilisers Pty Ltd (2011) 85 ACSR 531 at [49]

 7 [2013] VSCA 237

 8   Ibid at [459]-[462]

 9 (1992) 34 FCR 287

 10   Ibid at 291

 11 (2009) 258 ALR 538

 12   Ibid at [23]

 13 (2016) 242 FCR 46

 14   Ibid at [14] – [19]