Georgios Kosmas v The Trustee for Trinity Medical Centre (Seaford) Unit Trust T/A GPaxis Seaford Medical Centre
[2020] FWC 830
•17 FEBRUARY 2020
| [2020] FWC 830 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
Section 394—Unfair dismissal
Georgios Kosmas
v
The Trustee for Trinity Medical Centre (Seaford) Unit Trust T/A GPaxis Seaford Medical Centre
(U2019/13424)
Georgios Kosmas
v
The Trustee for Trinity Medical Munno Para Unit Trust T/A GPaxis Munno Para Medical Centre
(U2019/13624)
Georgios Kosmas
v
GPaxis Pty Ltd atf GPaxis Property Trust
(U2019/13639)
| Deputy President Anderson | ADELAIDE, 17 FEBRUARY 2020 |
Application for an unfair dismissal remedy – permission to be represented – section 596 FW Act – whether respondent entities authorised to seek representation – whether conflict of interest by legal representative - efficiency – complexity – fairness – permission granted
Georgios Kosmas (Mr Kosmas or the Applicant) has filed three unfair dismissal applications (F2) in the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (FW Act) against three named Respondents:
The Trustee for Trinity Medical Centre (Seaford) Unit Trust T/A GPaxis Seaford Medical Centre (referred to as the first Respondent);
The Trustee for Trinity Medical Munno Para Unit Trust T/A GPaxis Munno Para Medical Centre (referred to as the second Respondent); and
GPaxis Pty Ltd atf GPaxis Property Trust (referred to as the third Respondent).[1]
The Applicant asserts, and it is not in dispute, that three directors are trustees to each of the Respondents:
Dr Jim Kosmas (Dr Kosmas);
Dr Anura Nitchingham (Dr Nitchingham); and
Dr Trang Luu (Dr Luu).
Each director is a medical practitioner.
In response to the unfair dismissal applications, Norman Waterhouse Lawyers (Norman Waterhouse) lodged employer response forms (F3) and notices of a representative acting for a person (F53). Those notices claimed that Norman Waterhouse was acting for “the three Respondents” and sought permission to represent the Respondents in conferences or hearings.
The three directors do not seek common representation. By emails of 13 and 16 December 2019 to the Commission, Dr Kosmas (who is the Applicant’s brother) advised that he wishes “to send my own individual F3 Response as I do not wish to be represented by the other Directors or their nominated representative.”[2]
Mr Kosmas, the Applicant, submitted an objection to the Form F53s prior to conferences or hearings.[3]
A directions conference was held on 23 January 2020. Mr Kosmas was self-represented. The Respondents appeared via Norman Waterhouse accompanied by Dr Luu. Dr Nitchingham did not appear. Dr Kosmas appeared in his own right. Over the objection of Mr Kosmas, I granted the Respondents permission to be represented by a lawyer at that conference, without prejudice to determining representation at future conferences or hearings.
I issued Directions[4] requiring materials on representation to be filed by the first, second and third Respondents, and in response by Mr Kosmas.
I also directed that each director of the first, second and third Respondent has standing in their own right to participate, lead evidence, make submissions or otherwise participate in proceedings, independent of the appearance by or representation of the Respondents.[5] I invited submissions on representation from each director, but did not direct that each do so.
Norman Waterhouse on behalf of the Respondents filed further submissions seeking representation (including statutory declarations of Drs Luu and Nitchingham each dated 30 January 2020).[6]
Mr Kosmas lodged further submissions and materials in opposition to the Respondents being represented.[7]
Dr Kosmas lodged submissions and materials in his individual capacity. He joined Mr Kosmas in opposing representation.[8]
Via Norman Waterhouse, Dr Nitchingham, and Dr Luu lodged statutory declarations in their individual right (each dated 5 February 2020) supporting the Respondents being represented.[9]
I directed that the three applications be heard and determined concurrently.[10]
All the above materials have been taken into consideration. This decision determines the issue of representation sought by the first, second and third Respondents on each of the three applications.
Jurisdictional objections
Mr Kosmas claims to have been employed by the Respondents in the role of Chief Executive Officer or similar since 2011. He claims to have been dismissed effective from 26 November 2019.
His status as an employee is disputed by the Respondents who say he was providing services as a Director of JDK Property Holdings Pty Ltd (JDK) who, it is said, were retained in a business to business contractual relationship. The Respondents are pressing this as a jurisdictional objection.
The applications and responses suggest that Mr Kosmas ceased to be employed or ceased to provide services at some point in October or November 2019. The differences in the effective dates as against the dates of application give rise to a second jurisdictional objection, that the applications were made outside the statutory time limit.
Thus, the Respondents raise three jurisdictional objections:
That Mr Kosmas was not dismissed;
That the applications were lodged out of time; and
That Mr Kosmas was not an employee.
The first two of these jurisdictional issues (the out of time issue and whether Mr Kosmas was dismissed) are set down for hearing on 4 March 2020.[11] Pending the outcome of that hearing, the issue of whether Mr Kosmas was an employee may be heard on a date to be determined, either separately or in conjunction with a merits hearing.
Following the directions conference on 23 January 2020, Mr Kosmas made an application for an order requiring a person to attend before the Commission (Form F51). That application has been set down for a directions conference on 25 February 2020.
Legal Principles
Section 596 of the FW Act provides as follows:
“596 Representation by lawyers and paid agents
(1)Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.
(2)The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a)it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b)it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c)it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a)where a person is from a non English speaking background or has difficulty reading or writing;
(b)where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
(3)The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2 3 or 2 6 (which deal with modern awards and minimum wages).
(4)For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:(i) an organisation; or
(ii)an association of employers that is not registered under the Registered Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.”
Submissions
The first, second and third Respondents
On behalf of the first, second and third Respondents, Norman Waterhouse submit that each consideration in section 596 weighs in favour of granting permission.
They say that permission should be granted to increase the efficiency of proceedings as it would allow a single voice to represent all three entities.
Further they say the matter involves complexity that would benefit from legal representation, pointing to the three jurisdictional objections that must be dealt with before merits or remedy can be determined.
The Respondents also raise fairness between the parties as leaning towards a grant of permission as Mr Kosmas studied law and has signed the roll of practitioners. They say that Mr Kosmas’ legal proficiency is evidenced by the fact he has initiated related applications in the South Australian Employment Tribunal, and the three applications presently before the Commission. They also allege that Mr Kosmas has received legal advice ‘in the background’.
Finally, the Respondents say that there is no one suitably qualified internally to effectively represent the entities.
Mr Kosmas
Mr Kosmas says that the Commission should start from the point of presuming representation is not granted; the parties should ‘normally’ represent themselves. He contends that the matter is not complex as the law describing employees as against contractors is vast and well explored.
He says the three directors speaking frankly would better represent the Respondent’s interests; indeed, he says that as Norman Waterhouse are being instructed by Dr Luu, they are incapable of presenting a balanced view. He says that the directors have the capacity to present a case in the Commission as they are well educated, and experienced in hiring and firing staff and negotiating commercial contracts.
In objecting to the Respondents being represented at the hearing, Mr Kosmas observes that Norman Waterhouse would be able to provide legal services leading up to the hearing.[12]
Mr Kosmas says that if the Respondents were granted representation, an issue of fairness would arise. While Mr Kosmas completed a law degree and has signed the roll of practitioners, he has never held a practising certificate and practised law. His employment experience has not been specifically within the bounds of human resources and employment law, whereas Norman Waterhouse have, it is said, assembled several specialised lawyers to represent the Respondents.
Mr Kosmas further alleges there is a conflict of interest in Norman Waterhouse representing the Respondents because Mr Kosmas has previously retained Norman Waterhouse in his own right and has divulged personal details to them. Additionally, Mr Kosmas has received advice from Norman Waterhouse as a director of the entities, which may also compromise Norman’s ability to give fair and impartial advice.
Finally, Mr Kosmas contends that the Respondents have not lawfully authorised seeking legal representation given the divided views of their directors on the question and, as a consequence, Norman Waterhouse is seeking permission without proper authority.
Dr Kosmas
Dr Kosmas submits that he did not consent to Norman Waterhouse being retained to represent the Respondents. He considers that the other directors have acted outside his authority and that resolutions made at the relevant company meetings are invalid.
Dr Kosmas contends that each director should represent themselves given that the Respondents do not speak with one voice.
Dr Nitchingham and Dr Luu
Both doctors supplied a statutory declaration individually, and another as part of the Respondents’ submission.
It would appear from the content of their statutory declarations, that both doctors consider Norman Waterhouse to have been duly appointed by the Respondents to act on behalf of the three entities.
Further, both doctors emphasise their expertise in medicine as general practitioners and they say they do not have the necessary expertise to defend legal claims currently before the Commission.
Consideration
The first, second and third Respondents can only be represented by a lawyer with permission of the Commission.[13]
The granting of permission under section 596 involves a two-step process. The first is that at least one criteria in section 596(2) needs to be satisfied. The consideration required by this first step “involves the making of an evaluative judgment akin to the exercise of discretion”.[14] The second is that the discretion, if exercised, must be exercised in favour of the applicant for permission[15] in the sense that the discretion concerns whether to grant permission, not whether to deny or withdraw an established right.
I agree with Mr Kosmas that the starting point for the exercise of the discretion is that granting permission should be seen as a departure from the default position that a party in proceedings before the Commission must normally appear on its own behalf.[16] This proposition is consistent with the statutory scheme:
“FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves.”[17]
Before turning to the considerations in section 596(2), I will deal with two of the arguments advanced by Mr Kosmas and Dr Kosmas.
Respondents instructed without authority
In exercising the guided discretion provided for by section 596, I consider it relevant, where a respondent is a corporate entity (including a trust with a corporate trustee) and where the authority of that entity to seek permission is challenged, to consider whether such authority does in fact exist.
Have the first, second and third Respondents authorised the application for permission that has been made on their behalf?
On the evidence before me, the answer to this question is yes.
Attached to each of their first declarations of Drs Luu and Nitchingham is an email, set out below, from Dr Kosmas dated 24 September 2019:[18]
“Dear Trang,
I am not available to attend the proposed meeting of directors this evening.
However I do consent to the meeting occurring on short notice on the basis of the limited agenda items proposed. I would support acceptance of the without prejudice offer proposed by Bradbrook Lawyers. However if that is not agreed then I support the appointment of Norman Waterhouse Lawyers as per your email, subject to the provision of a satisfactory costs agreement.
Kind regards,
Dr Jim Kosmas.”
For completeness it is helpful to set out the preceding email from Dr Luu which elicited Dr Kosmas’ reply above:[19]
“Dear Jim and Anura,
I refer to the matters raised in the letters from Ms Jodie Bradbrook dated 11th and 13th September 2019 regarding Mr George Kosmas.
I think you will agree this is a very important matter that needs careful and urgent attention.
As I am leaving for Europe tomorrow night, I think that the most effective and timely way to deal with this matter is to hold a Meeting of Directors, the details of which are attached.
Yours sincerely,
Dr Trang M Luu”
The following were the proposed agenda items referred to in Dr Luu’s above email:[20]
“1. Appointment of Norman Waterhouse Lawyers Pty Ltd to provide legal services and advice to the Company.
2. Appointment of Dr Trang Luu as the directors’ delegate and agent for the Company to engage and provide instruction to Norman Waterhouse Lawyers Pty Ltd.”[21]
Directors meetings of the three corporate entities proceeded on 24 September 2019 attended by Dr Luu and Dr Nitchingham, with Dr Kosmas an apology. The minutes of the meetings establish that the directors resolved that the corporate entities engage lawyers to provide advice in relation to employment law claims by Mr Kosmas and that Norman Waterhouse be retained in relation to such matters.[22] The meetings also resolved to appoint Dr Luu as the directors’ delegate and sole agent for these purposes which included “such action as is appropriate and in the Company’s interests”.
On the basis of this material, I am satisfied that the first, second and third Respondents duly authorised the engagement of lawyers, and that Dr Luu was authorised to provide instructions on the management of the litigation including seeking permission to be legally represented.
Dr Kosmas contends that his was a conditional acceptance, and he expected to see the costs agreement before Norman Waterhouse were to be retained.
There is no material before the Commission to suggest retaining legal representation must be a unanimous decision of the three board members according to the constitution of the entities. Normally a majority would suffice,[23] and, if Dr Kosmas delegated his power, the appointment of legal representation may well be a ‘typical’ exercise of delegation.[24]
It is sufficient for current purposes to rely on the resolution made by the two directors who attended the meeting of 24 September 2019 and who form a majority of directors.
Should it however be necessary to so conclude, I am satisfied on the material currently before me that Dr Kosmas agreed to retain,[25] or delegated[26] to the other directors the power to retain, Norman Waterhouse “subject to the provision of a satisfactory costs agreement” if a settlement option was not agreed. The minutes of the meeting show that Dr Kosmas’ email was tabled and accepted by the other directors. There is no evidence before me that any costs agreement with the lawyers is not a “satisfactory costs agreement’. In the absence of such evidence it cannot be concluded that the delegation by Dr Kosmas miscarried, even if that issue required determination.
It follows that I am satisfied that lawyers have, to date, been properly retained and instructed to represent the first, second and third Respondents and that their request for permission is duly authorised.
Conflict of Interest
In advancing the allegation that Norman Waterhouse has a conflict of interest in representing the Respondents, Mr Kosmas asserts that he has in the past retained Norman Waterhouse in his own right, disclosed personal and confidential information to them and received advice from the firm.
Mr Kosmas says that a practitioner acting in the face of a conflict of interest is in breach of section 10 of the Australian Solicitors Conduct Rules. He says that he has raised this issue with the South Australian Employment Tribunal in related proceedings, and that it may be determined in that jurisdiction. He also says that he intends to refer his complaint to the Legal Profession Conduct Commissioner for examination.[27]
The allegations made against Norman Waterhouse have not been tested before me. I note that they are contested. I form no view on whether they have a proper basis as the Commission is not vested with jurisdiction to do so.
It is well established that a grant of permission under section 596 of the FW Act is a grant of permission for a party to be legally represented, and not a grant of permission with respect to a particular representative. A Full Bench of the Commission has expressed the principle as follows:[28]
“The power conferred by s.596(2) is simply to “grant permission for a person to be represented by a lawyer or paid agent in a matter”. Nothing in that language suggests that the power extends to the selection of which particular lawyer or paid agent will represent a party applying for permission. In the proceedings below, the duty of the Commissioner was either to grant or refuse permission for the ATO to be represented by a lawyer. It was not within the power conferred on the Commission to choose who that lawyer would be either by reference to the individual identity of the lawyer or by reference to whether the lawyer was a barrister or a solicitor.”
If in the exercise of the guided discretion provided for by section 596 I determined that permission should be granted to the first, second and third Respondents, it would be permission with respect to those entities to be represented by a lawyer, and no more. It would not be a grant of permission to a specific lawyer, class of legal practitioners or firm of lawyers.
In these circumstances I do not consider it necessary to inquire into whether a conflict of interest exists between the Respondents and Norman Waterhouse. It is for the Respondents, if granted permission, to determine their legal representative and for that representative to satisfy themselves as to their professional obligations. There are accountability mechanisms in the legal profession for such purposes, and complaints are capable of being made by persons such as clients or former clients.
I do not consider that the allegations of conflict of interest weigh against exercising the guided discretion required by section 596.
I now turn to consider the factors set out in section 596(2) of the FW Act: efficiency (in the context of the complexity of the matter); fairness (in the context of the capacity of the person seeking permission to effectively represent themselves); and fairness between the parties.
Efficiency and Complexity
This matter entails the determination of at least two jurisdictional objections in the first instance. Pending their outcome, a third jurisdictional objection will need to be resolved prior to determining merits and remedy (if jurisdiction exists).
The extent to which the first and second jurisdictional issues (whether dismissed, and whether out of time) are complex remains moot. Both issues conceptually involve some complexity, especially where facts are in dispute. Each requires facts, even where agreed, to be applied against legal principles. Given the contested views about when work by Mr Kosmas for the Respondents came to an end (October or November 2019) it appears likely that some facts will be in dispute, and fact finding required.
The third jurisdictional objection is whether the Applicant was an employee (or contractor) of the Respondent entities. The Applicant alleges he was improperly retained under a sham arrangement. Given this factual backdrop, it may be reasonably inferred there will be a further dispute between the parties as to the facts. The application of those facts to the relevant legal principles may involve some complexity.
Additionally, in these proceedings there are three Respondent entities, differences of view between directors, and a backdrop of related litigation and complaints that may impact these proceedings.
Taking into account these complexities, granting permission for the Respondents to be represented by a lawyer in these proceedings is likely to enable the hearing to be conducted more efficiently.
Both Dr Kosmas and Mr Kosmas contend that proceedings would be more efficiently conducted if the company directors present their own cases individually, and that this may induce settlement.
Arbitrating jurisdictional matters and determining merit and remedy in unfair dismissal litigation is an exercise of quasi-judicial powers. Arbitration involves third party determination. At the point of arbitration the dispute has moved beyond conciliation. Whilst the Commission remains open, indeed often hopeful, that the parties elect to reach settlement agreements, including prior to or even during the course of arbitration, decisions on representation must include giving consideration to the efficiency of forthcoming arbitration proceedings.
I consider that considerations of efficiency in the context of complexity of these matters weigh in favour of a grant of permission.
Unfairness
Sub-sections 596(2)(b) and (c) require fairness to be considered in two contexts: fairness in the context of the capacity of the person seeking permission to effectively represent themselves; and fairness between the parties.
The Respondents say denying them representation would be unfair as between the parties because Mr Kosmas holds a legal degree, is admitted as a legal practitioner (though has not practised) and may be receiving background advice from lawyers.
In contrast, the Respondents point to the fact that the directors are general practitioners.
I take into account the submission of Mr Kosmas that the directors are all educated and have conducted a business undertaking. However, each has no specialist expertise in human resources or legal matters let alone industrial litigation. Mr Kosmas at least has legal training. In these circumstances I am satisfied that the Respondents would be unlikely to represent themselves effectively. It would be unfair to require them to do so in circumstances where they seek representation.
The considerations in section 596(b) weigh in favour of a grant of permission.
Section 596(c) concerns unfairness between persons in the matter.
There is some potential imbalance in representation created, should permission be granted, with respect to both Mr Kosmas and Dr Kosmas.
With respect to Mr Kosmas that potential is mitigated somewhat by virtue of the fact that he has legal training and appears well equipped to have navigated these proceedings to date including by making relevant submissions in a professional and timely manner.
With respect to Dr Kosmas, if he elects to continue to appear in proceedings (as is his right given the status I have granted to each director) and if he elects to continue to be self-represented (as is also his right) there would be some representation imbalance in circumstances where the Respondent is represented by a lawyer. I take this into account, noting though that Dr Kosmas is neither the applicant nor respondent to these proceedings, but one of three directors of the respondents and a director who seeks to be separately represented from the entities of which he is a director.
The considerations in section 596(c) weigh marginally against the grant of permission.
Conclusion
I have found that lawyers were, on the material currently before me, properly retained by the first, second and third Respondents to represent them in these proceedings.
I have concluded that alleged conflict of interest issues concerning a particular lawyer or law firm do not bear on the question whether representation should or should not be permitted under section 596 of the FW Act.
In exercising discretion on the representation question each factor in section 596(2) does not have to be made out although each must be considered.[29]
I have found that it would be more efficient to grant permission to the Respondents owing to the complexity of the matters in issue.
I have also found that there would be a level of unfairness if the Respondents were left self-represented, as the directors lack sufficient expertise to effectively represent their own interests in somewhat complex litigation.
.
I have found that some unfairness however may exist to a director Dr Kosmas and to a lesser degree to the Applicant Mr Kosmas should permission be granted.
Taking these matters into consideration, I am satisfied that it is appropriate to exercise the statutory discretion to grant permission to the first, second and third Respondents to be represented by a lawyer in further proceedings on the three applications.
Permission is granted on the condition that I will provide to Mr Kosmas and, should he continue to appear in proceedings, to Dr Kosmas a reasonable level of assistance and guidance to ensure that their submissions and evidence (if any) is fully presented and that each is able to test the submissions and evidence of other persons or parties. I will do so in a manner consistent with my statutory obligations as an independent statutory office holder.
I also note and confirm the direction I issued on 23 January 2020:[30]
“Subject to further order, should either Mr Kosmas or Dr Kosmas, Dr Luu or Dr Nitchingham seek to be represented in these proceedings, an application for permission should be made by no later than seven days after the Commission’s decision on the request by the first, second and third named Respondents, and any objections made to such applications should be made within seven days thereafter.”
DEPUTY PRESIDENT
<PR716781>
Written submissions:
The Trustee for Trinity Medical Centre (Seaford) Unit Trust T/A GPaxis Seaford Medical Centre, The Trustee for Trinity Medical Munno Para Unit Trust T/A GPaxis Munno Para Medical Centre, and GPaxis Pty Ltd atf GPaxis Property Trust, via Norman Waterhouse Lawyers, 11 December 2019 and 30 January 2020
Mr G Kosmas, on his own behalf, 11 December 2019, 14 January 2020 and 6 February 2020
Dr J Kosmas, on his own behalf, 30 January 2020
Dr T M Luu, and Dr A T Nitchingham, via Norman Waterhouse Lawyers, 5 February 2020
[1] U2019/13424 (filed 2 December 2019), U2019/13624 (filed 5 December 2019) and U2019/13639 (filed 5 December 2019). Application U2019/13424 names the first, second and third Respondents. Application U2019/13624 names the second Respondent only and application U2019/13639 names the third Respondent only. Collectively the two respondent trusts and one respondent company will be referred to as ‘the Respondents’
[2] Emails Dr Jim Kosmas to UDT 13 December 2019 10.53am and 16 December 2019 1.24pm
[3] Email Mr Kosmas to ‘Chambers- Anderson DP’ 14 January 2020 3.10pm
[4] Directions 23 January 2020 (as amended by email notification 30 January 2020 2.50pm)
[5] Directions 23 January 2020 at [11]
[6] Email Norman Waterhouse to ‘Chambers- Anderson DP’ 30 January 2020 4.44pm
[7] Email Mr Kosmas to ‘Chambers- Anderson DP’ 6 February 2020 9.55am
[8] Email Dr Kosmas to ‘Chambers- Anderson DP’ 30 January 2020 2.47pm
[9] Email Norman Waterhouse to ‘Chambers- Anderson DP’ 6 February 2020 4.23pm
[10] Directions 23 January 2020 at [3]
[11] Together with directions for the filing of materials: Directions at [12] to [16]
[12] Applicant’s Response to Form 53, 11 December 2019, at paragraph 10
[13] Section 596(4) does not apply in this matter
[14] Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 at [19]
[15] Calleri v Swinburne University of Technology[2017] FWCFB 4187 at [36]
[16] Warrell v Fair Work Australia [2013] FCA 291 at [24]
[17] Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 2291
[18] TML1 and ATN1 Email from Dr Jim Kosmas to Board and Dimitrios Kosmas, 24 September 2019 at 1:56pm
[19] Email from Dr Trang Luu to Board, 23 September 2019 at 6:26pm
[20] Duplicate notices were provided under each individual company name
[21] Notice of Meeting of Directors, 23 September 2019
[22] TML2 and ATN2
[23] Corporations Act 2001 (Cth) section 248G(1)
[24] Renouf v RAC Finance Limited [2017] FCCA 142 (31 January 2017) at [74]
[25] Email from Dr Jim Kosmas to Board and Dimitrios Kosmas, 24 September 2019 at 1:56pm
[26] Corporations Act 2001 (Cth) section 198D
[27] Applicant’s response to F53 6 February 2020 Attached at paragraph 35
[28] New South Wales Bar Association v McAuliffe[2014] FWCFB 1663 at [24] cited with approval in Fitzgerald v Woolworths Ltd[2017] FWCFB 2797 at [30] – [32]
[29] Warrell v Fair Work Australia [2013] FCA 291 at [24]
[30] Directions 23 January 2020 at [9]
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