Joshua Bourke v Mud's Inspection & Welding Services Pty Ltd T/A Macfab Engineering

[2014] FWC 6999

[2014] FWC 6999

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Bourke
v
Mud’s Inspection & Welding Services Pty Ltd T/A Macfab Engineering
(U2014/302)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 7 OCTOBER 2014

Application for relief from unfair dismissal Application for relief from unfair dismissal.

[1] Mr Joshua Bourke was employed by Mud’s Inspection & Welding Services Pty Ltd from 30 June 2008 until 16 January 2014.

[2] At the time of his dismissal Mr Bourke had been off work for over three months as a result of an injury.

[3] On 16 January 2014, Mr John Bourke, Mud’s General Manager, telephoned Mr Bourke and advised him that as he was not able to perform the inherent responsibilities of his job and there were no light duties for him to perform and as he had been off work for over three months, his employment would be terminated and he would be sent a separation certificate. 1

Jurisdiction of the Fair Work Commission

[4] There is no dispute that Mr Bourke is a person who was protected from unfair dismissal. Further, it is not disputed that Mud’s was not, at the time of the dismissal, a small business. The Fair Work Commission has the jurisdiction to determine the application.

The evidence of Mr Bourke

[5] Mr Bourke gave evidence that he was first injured in September 2010. His claim was accepted as a work related injury and he was off work for 2-3 weeks. He returned to work on light duties for 3-4 weeks and then returned to his normal welding job. 2

[6] On 13 September 2013, whilst putting on his socks, he felt a sharp pain in his back. He advised Mud’s that he was not able to attend work and sought medical assistance. 3

[7] Later on the same day, he told Mr Betts that he thought it would be a Work Cover claim. 4

[8] Mr Bourke provided medical certificates to Mud’s for 13-18 September 2013. On 19 September 2013, Dr Zhen Zhao certified him unfit for work.

[9] Mr Bourke said that he met with Mr Betts who told him that the company did not take responsibility for what had happened and he wouldn’t get any help from the company. 5

[10] On 3 October 2013, Dr Zhao certified that Mr Bourke was fit to work five hours per day five days per week with restrictions. 6 He was to avoid lifting/carrying and pushing/pulling and bending/twisting and squatting.

[11] On the same day, Mr Bourke went to the factory and gave Mr John Bourke his workers’ compensation certificate of capacity and Mr John Bourke told him that they had no light duties for him to do. Mr John Bourke told him that if he wanted to get paid he needed a certificate that said he was unfit to work. 7

[12] Mr Bourke returned to Dr Zhao who then issued another certificate which said that Mr Bourke had no capacity for work. 8

[13] On 17 October 2013, Dr Zhao certified Mr Bourke fit to return to his pre-injury duties. 9 However Mr John Bourke told Mr Bourke that he wanted him to see a doctor of the company’s choosing.10 Mr John Bourke told him that it was company policy that Mr John Bourke sits in on the consultation and Mr Bourke agreed to this.11

[14] On 23 October 2013, Dr Boothby provided a copy of his report to Ms Clarke, a Director of Mud’s, in which he made the following recommendation:

“I cannot recommend Mr Bourke to return to you on full, unrestricted duties. If you do decide to continue his employment then he will need a graduated return with the ability to perform some lighter duties for at least 4-6 weeks and gradually increase those duties as tolerated. There is however a continuing risk of further injury were he to return to unrestricted duties at some point in the future. This is particularly so as he now claims that his symptoms have never fully resolved over the intervening three year period.” 12

[15] Mr Bourke said he did not see Dr Boothby’s report prior to his dismissal. 13

[16] After exhausting his sick leave, Mr Bourke took annual leave. In late November 2013, he spoke to Ms Clarke and told her he wanted to return to work. She told him he needed a clearance so he saw Dr Zhao on 2 December 2013. Dr Zhao issued a certificate clearing him to return to his pre-injury duties. Mr Bourke provided the certificate to either Mr John Bourke or Ms Clarke. 14

[17] In early January 2014, Ms Clarke contacted Mr Bourke and told him that she wanted to see Dr Zhao and he agreed to this. Mr Bourke told Dr Zhao that he wanted to return to work. Ms Clarke told Dr Zhao that she was worried that Mr Bourke would re-injure himself if he returned to full duties.

[18] Mr Bourke said that Ms Clarke insisted that Dr Zhao change the medical certificate to provide that he should return to work on light duties. Mr Bourke said that Ms Clarke told Dr Zhao and Mr Bourke that she would go back to the company and discuss arranging light duties. As a consequence, Dr Zhao issued a new certificate which provided that:

“Mr Joshua Bourke will be fit for modified duty, on account of his back pain. He need avoid bending and lifting when he work and rest as requested at least for 4 weeks time. then consider increased the work load and gradually back to his normal duty otherwise he is likely to get re- injury according to his history.”

[19] On 16 January 2014, Mr John Bourke rang Mr Bourke. He asked him if he was happy to have the discussion on the phone. Mr John Bourke advised him that his employment was terminated.

[20] Mr Bourke was seen by Dr James Bodel, an orthopaedic surgeon on 2 December 2013. He reported that Mr Bourke “should be capable of his pre-injury duties.” The report noted that tests were needed to “be absolutely certain as to his clinical capabilities in the longer term.” It further reported that Mr Bourke was left with a permanent impairment. He was assessed as having a 5% whole person impairment. 15 Mr Bourke did not provide a copy of this report to Mud’s.

The evidence of Ms Clarke

[21] Ms Clarke gave evidence that when Mr Bourke first mentioned his injury on 13 September 2013, he made no reference to it being an aggravation of his old injury but on 17 September 2013 he told Mr Betts that his doctor had advised that he could lodge a claim dating back to his old injury. 16

[22] After receiving his certificate of capacity on 19 September 2013, Ms Clarke said she did not hear from Mr Bourke until his sick leave was due to expire in October 2013. 17

[23] On 9 October 2013, Ms Clarke was advised by the workers’ compensation insurer that Mr Bourke’s claim had been rejected. 18

[24] On 26 November 2013, Ms Clarke spoke to Mr Bourke and told him that he was still employed but he was on leave without pay as he had exhausted his entitlements. She told him that before he could return to work he would need a certificate that said he was 100% fit for employment that he was originally employed to do and that there was no longer a risk of re-aggravating his back injury. In that conversation Ms Clarke told Mr Bourke that he could pick a copy of Dr Boothby’s report from the clinic and Mr Bourke told her that his solicitors had a copy of the report. 19

[25] On 3 December 2013, after receiving Dr Zhao’s medical certificate stating that Mr Bourke was fit for pre-injury duties, Ms Clarke rang Dr Zhao about the certificate. Ms Clarke made a note of that phone call. In that phone call, Dr Zhao told Ms Clarke that he agreed with Dr Boothby’s assessment that there was a high risk of further injury to his back. 20 Ms Clarke asked Dr Zhao to issue a new certificate but Dr Zhao said he could not do this without Mr Bourke’s permission.21

[26] On 4 December 2013, Ms Clarke spoke to Mr Bourke with Mr Clarke and Mr John Bourke as witnesses. She told him that the medical reports she had were conflicting and that she had spoken to Dr Zhao and he now agreed with Dr Boothby and could only see him doing modified duties and they did not have modified duties available. 22

[27] After the Christmas shutdown, Ms Clarke contacted Mr Bourke to arrange for them both to see Dr Zhao. She said that Dr Zhao, at that meeting, agreed with Dr Boothby’s report and issued another certificate. Ms Clarke said she told Dr Zhao and Mr Bourke that she could not say whether there were alternative duties for Mr Bourke but said she would speak to Mr Betts. 23

[28] On 14 January 2014, Ms Clarke asked Mr Betts about whether there were any light duties for Mr Bourke and in consultation with Mr John Bourke said that there were no duties for him. 24

[29] Ms Clarke accepted that the decision to terminate Mr Bourke’s employment was determined prior to the telephone conversation between him and Mr John Bourke on 16 January 2014. 25

Mr John Bourke’s evidence

[30] He confirmed that Ms Clarke asked him about light duties for Mr Bourke but there were none available.

[31] Mr John Bourke made a note of his phone call to Mr Bourke on 16 January 2014. He told Mr Bourke that he wanted to discuss his employment. In cross examination, Mr John Bourke said he asked Mr Bourke if he could come into work for a discussion but as Mr Bourke was out of town, he agreed to continue with the phone call. 26 Mr John Bourke said he discussed the outcome of the appointment with Dr Zhao and that Mr Bourke was still not able to return to work and perform the inherent requirements of his job. As there were no light duties and because he had not been able to attend work for three months, his employment was being terminated and he would be sent a separation certificate.27

[32] Mr John Bourke gave evidence in cross examination that Mr Bourke’s employment was terminated because the three months had expired. 28

The medical evidence

[33] Neither party called the medical practitioners to give evidence.

[34] Dr Zhao issued Work Cover capacity certificates from 19 September 2013. On 3 October 2013, he issued a certificate that Mr Bourke was fit to work five hours per day, five days per week on modified duties. 29 The next day he issued a certificate saying the Mr Bourke was not fit for his pre-injury duties.30 He then certified Mr Bourke fit for his pre-injury duties without restrictions on 17 October 2013.31 On 2 December 2013, he again cleared Mr Bourke to return to his pre-injury duties.32 On 13 January 2014, he declared him fit for modified duties.33

[35] Dr Boothby did not accept Mr Bourke’s view that this was an aggravation of his previous injury. His report stated that he is “likely to have some disc injury with nerve root compression.” He considered that “it is likely at some point in the future [that Mr Bourke] will have further problems particularly if his work involves bending and lifting.” Dr Boothby was unable to quantify the risk of future injury and noted that Mr Bourke had not had any scans or x-rays.

[36] Dr Boothby noted that if Mr Bourke was to return to work he should be put on lighter duties for at least 4-6 weeks and gradually increase those duties as tolerated.

[37] Dr Bodel stated that Mr Bourke had a minor flare up of symptoms on 13 September 2013. He concluded that it was an aggravation of his previous injury. He stated that prolonged sitting or bending and lifting could aggravate his pain. He commented that Mr Bourke had not had any investigations of his symptoms. He said that he probably suffered a minor disc injury but could not confirm this because of the lack of scans and other tests. Dr Bodel advised that Mr Bourke’s employment was a substantial contributing factor to the aggravation. 34

[38] At the hearing, Mr Bourke did not submit any up to date medical evidence about his condition.

The proceedings

[39] The application was originally heard on 28 May 2014. In the course of considering my decision, I wrote to the parties and asked the parties to address me on whether the decision of Mud’s, not to permit Mr Bourke to return to work on a graduated return to work program (RTWP), contravened the Disability Discrimination Act 1992 (DDA). I advised that I had formed the preliminary view that ss.4, 5 and 11 of that Act may be relevant to whether there was a valid reason for the termination of Mr Bourke’s employment as a graduated RTWP may be a reasonable adjustment. I invited the parties to make submissions on whether the employer had discriminated against Mr Bourke when it refused to permit him to return to work on a graduated RTWP. The parties were advised that they needed, in their submissions, to clearly identify what findings were able to be made, on the evidence before the Commission, about the graduated RTWP proposed by Dr Boothby and Dr Zhao.

[40] Both parties filed material. In addition, Mud’s sought to file additional evidence. Mr Bourke objected to that evidence being received.

The supplementary submissions of Mr Bourke

[41] It was submitted that the evidence established that Mud’s took no steps to discuss with Mr Bourke’s doctors or Mr Bourke what he could or could not do as part of a RTWP. 35 It was submitted that as a result, Mud’s was not in an informed position to assess whether the RTWP was reasonable.

[42] It was submitted by Mr Bourke that the RTWP was itself a reasonable adjustment. 36

[43] It was submitted that in determining whether there was a valid reason to terminate Mr Bourke’s employment the Commission should consider Mr Bourke’s capacity in the context of a RTWP.

[44] The RTWP, it was submitted, would have involved a period of time (4-6 weeks) of light duties; four weeks of lighter duties avoiding bending and lifting; and modified duties avoiding lifting, pulling and bending. 37

[45] It was submitted that the onus under the DDA of establishing unjustifiable hardship rests with the employer.

The supplementary submissions of Mud’s

[46] Mud’s submitted that it considered whether it could have accommodated reasonable adjustments to facilitate Mr Bourke’s return to work on a modified gradual RWTP. 38

[47] It was submitted that Mud’s had regard to Dr Zhao’s statement of capacity in January 2014 and Dr Boothby’s earlier report. 39

[48] It submitted that regard should be had to the size of the business and the nature of the work performed. It was submitted that the work performed by Mr Bourke involved cutting, welding and grinding steel products and the work involved lifting heavy steel and using heavy duty equipment. There is also frequent bending, twisting and lifting. 40

[49] It was submitted that Mud’s conducted a thorough analysis of the work to determine if it could provide reasonable adjustments to accommodate the Mr Bourke’s restricted capacity. 41 Mud’s sought to rely upon a witness statement of Ms Clarke filed with the supplementary submissions. To the extent that the evidence was consistent with evidence given by Ms Clarke at the hearing, I have had regard to it. To the extent that it seeks to supplement that evidence, I have not had regard to it. The parties were not directed to file additional evidence. Mr Bourke rightly objected to its tender. The invitation to file additional submissions was not an invitation to adduce new evidence.

[50] It was submitted that to accommodate Mr Bourke’s disability, Mud’s would have been required to create a new position for him which eliminated the heavier aspects of the work. That would have shifted the heavier work to other employees which would have been an occupational health and safety risk. 42

[51] It was submitted that the creation of an additional position would have added an unreasonable financial burden on the company particularly when regard was had to its size and its need to remain financially competitive. 43

[52] It was submitted that the evidence about Mr Bourke’s fitness for work was complex, confusing and conflicting. 44

[53] It submitted that Dr Zhao’s certificates had no regard to the heavy work and environmental considerations and Dr Zhao never sought any information about this from Mud’s. 45

[54] It was submitted that Mud’s took reasonable steps to ascertain Mr Bourke’s fitness for work. It was entitled to have regard to Dr Boothby’s assessment because he had better knowledge and understanding of the heavy physical nature of the workplace. 46

[55] It submitted that there were no reasonable adjustments it could have made as the provision of a supernumery position would have imposed unjustifiable hardship. 47

Was the termination of employment harsh, unjust or unreasonable?

[56] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

[57] Mud’s submitted that it was entitled to terminate Mr Bourke’s employment because he was not able to perform the inherent requirements of his job and he had not been able to do so for three months.

[58] I find it consistent, with all the medical reports, that at the time of his dismissal Mr Bourke had a disability or an impairment.

[59] I do not accept that Dr Zhao only changed his assessment of Mr Bourke’s fitness for work after being told that there were modified duties for Mr Bourke to perform. Dr Zhao may have been persuaded by Ms Clarke’s concerns about the conflicting medical reports to change his assessment, but I am not prepared to look behind Dr Zhao’s medical certificate. He did not give Mr Bourke a clearance to return to his pre-injury duties.

[60] At the time the decision was made to terminate Mr Bourke’s employment, the most recent medical advice said he was not fit to return to his pre-injury duties.

[61] However Dr Zhao did not say that this was a permanent state. He said that with a gradual return to work he could return to his normal duties. Dr Zhao’s medical certificate advises that the risk of re-injury arose if there was not a gradual return to work. This is consistent with Dr Boothby’s report in October 2013.

[62] It is clear from Ms Clarke’s evidence that Mud’s considered that it did not have any obligation to assist in the return to work for employees whose workers compensation claim had been rejected. 48 I do not accept the supplementary submissions of Mud’s that Mud’s conducted a thorough analysis of the work to determine if it could provide reasonable adjustments to accommodate Mr Bourke’s restricted capacity. However I accept that the relevant people turned the mind to the question of whether there were light duties for Mr Bourke and they reached the conclusion that there were not. 49

[63] Evidence was given that there was no alternative duties available for Mr Bourke and while it was put to both Ms Clarke and Mr Bourke in cross examination, that they did not take steps to inquire of Dr Zhao, Dr Boothby or Mr Bourke about what tasks he could safely perform, there was no real challenge to their evidence about the existence of light duties. Mr Bourke did not give any evidence of the work he could perform in a graduated RWTP.

[64] However it is clear that what was not considered was whether Mr Bourke could do his current duties but for a shorter period of time.

[65] A decision to terminate an employee’s employment in breach of the DDA could not be a valid reason.

[66] The DDA provides 50 that it is unlawful for an employer to discriminate against an employee on the grounds of the employee’s disability by dismissing the employee.

[67] The DDA prohibits both direct and indirect discrimination. Employers are required to make reasonable adjustments in relation to workers with disabilities.

[68] The DDA further provides 51 that it is not unlawful to discriminate in relation to work if the person cannot carry out the inherent requirements of the particular work even if reasonable adjustments are made.

[69] The DDA says that an adjustment is a reasonable adjustmentunless making the adjustment would impose an unjustifiable hardship on the person.

[70] Unjustifiable hardship is defined at section 11 of the DDA.

[71] It is difficult to conceive that providing light duties for a period of 4-6 weeks would impose an unjustifiable hardship. Mortimor J in Watts v Australian Postal Group 52 made it clear there must be some time allowed for the adjustment to take effect:53

“the prohibitions contained in Div 1 of Pt 2 of the DDA are intended to facilitate, in a variety of circumstances disabled people performing or continuing to perform, work for which they are qualified and of which they are capable, whether by training, experience or both. In this sense allowing time for an employee to adapt, and gradually return to full capacity, itself forms part of the “reasonable adjustments” made subject to any given case to the unjustifiable hardship exception.” 54

[72] Reasonable adjustment may involve providing employees with an opportunity to work reduced hours unless for example attending work for 38 hours per week is an inherent requirement of the position.

[73] Had Dr Zhao issued a certificate that said that Mr Bourke could do his existing duties but for a shorter period of time, I would have formed a different view about the existence of a valid reason for the dismissal of Mr Bourke. However Dr Zhao’s medical certificate provided that Mr Bourke needed to avoid lifting and bending when he worked. Given the nature of his work I cannot see how he could have avoided bending and lifting.

[74] It is not enough to assert that the provision of light duties was a reasonable adjustment. Such a submission must be supported by evidence. No detailed RTWP was ever proposed by Mr Bourke’s doctor. No rehabilitation plan was developed nor was any risk assessment conducted. I accept that Mud’s did not undertake a thorough review of Mr Bourke’s capabilities. I also consider that imposing a requirement that a worker who had a injury have no risk of aggravating the injury before they are permitted to return to work is unreasonable.

[75] No evidence was called about what adjustments could be made to enable Mr Bourke to perform his duties without bending or lifting. As there is no evidence before me about any reasonable adjustment that could have been made to enable Mr Bourke to be able to perform his job the issue of unjustifiable hardship does not arise.

[76] Given the lack of evidence to the contrary, I am left with the evidence of Ms Clarke and Mr John Bourke that there was no suitable work for Mr Bourke and I accept that evidence.

[77] It was submitted that if I find that Mr Bourke did have impairment then the Workers Compensation Act 1987 (the WC Act) acts to prevent the dismissal.

[78] It was submitted that the WC Act defines an injury to include the aggravation of an injury if the employment was the main contributing factor to the aggravation. 55

[79] The WC Act further provides that within six months of the injury it is an offence to terminate an employee because the employee is not fit for employment as a result of the injury. 56

[80] It should be noted that s.240 defines an injured worker as one “who receives an injury for which the worker is entitled to receive workers compensation under the Act.”

[81] There are provisions under the WC Act for reinstatement of injured workers. 57

[82] I accept that there would not be valid reason for the termination of Mr Bourke’s employment if the termination of his employment was invalid under state workers compensation laws. However I am not able, on the basis of the evidence before me, to conclude that Mr Bourke has an injury as defined in the WC Act. At the time of this application Mr Bourke’s claim had not been resolved in his favour and I am not prepared on the basis of the medical evidence before me to conclude that employment was the main contributing factor to the aggravation of his injury.

[83] I find therefore that Mud’s had a valid reason for the termination of Mr Bourke’s employment. That reason related to his capacity to perform the inherent requirements of his job.

s387(b) whether Mr Bourke was notified of that reason;

[84] Mr Bourke was notified of the reason for his dismissal after the decision to terminate his employment was made. So much is clear from Mr Bourke and Ms Clarke’s evidence.

s387(c) whether Mr Bourke was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[85] Mr Bourke was not provided with an opportunity to respond to the reason before the decision to terminate his employment was made. I find that he was provided with an opportunity to respond after the decision was made.

s387(d) any unreasonable refusal by the employer to allow Mr Bourke to have a support person present to assist at any discussions relating to dismissal;

[86] Mr Bourke did not ask to have a support person present.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Bourke had been warned about that unsatisfactory performance before the dismissal;

[87] Mr Bourke’s employment was not terminated because of his performance.

s387(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[88] No submissions were made that the size of the business would have had any impact on the procedures followed in effecting the dismissal.

s387(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[89] Ms Clarke who oversaw human resources at the business did not submit that she lacked experience or expertise.

s387(h) any other matters that FWC considers relevant.

[90] Mr Bourke submitted that the protective provisions of the Workers Compensation Act 1987 (NSW) is relevant consideration. However for the reasons set out above I am unable to conclude on the evidence before me that Mr Bourke was an injured worker as defined in that Act at the time of the dismissal.

Conclusion

[91] I have found that there was a valid reason for the termination of Mr Bourke’s employment. However I have found that Mr Bourke was denied procedural fairness in the manner of his dismissal.

[92] However in this case, Ms Clarke and Mr John Bourke did not act precipitously in deciding to dismiss Mr Bourke. They initially sought advice from Dr Boothby about his fitness to return to work. Having received conflicting medical advice from Dr Zhao, Mud’s sought, in January 2014, further medical advice from Dr Zhao and considered again if there were light duties for Mr Bourke to perform.

[93] In his telephone conversation Mr John Bourke talked to Mr Bourke about the outcome of the appointment. At any point during this conversation Mr Bourke could have told Mr Bourke about Dr Bodel’s report but he did not. While I accept that Mr John Bourke had already made the decision to dismiss Mr Bourke this procedural defect does not of itself lead me to conclude that the termination was harsh unjust or unreasonable.

[94] As such Mr Bourke’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

J Wieladek from the AMWU for the Applicant.

M Clarke for the Respondent.

Hearing details:

2014.

Wodonga:

28 May.

 1   Exhibit R1 at attachment T

 2   Exhibit A1 at [11]-[14]

 3   Ibid at [17]-[19]

 4   Ibid at [20]

 5   Ibid at [26]

 6   Ibid at [28]

 7   Ibid at [29]

 8   Ibid at [30]

 9   Ibid at [33]

 10   Ibid at [35]

 11   Ibid

 12   Ibid at attachment L

 13   Ibid at [36]

 14   Ibid at [37]-[39]

 15   Exhibit A2 at JB10

 16   Exhibit R1 at [6]

 17   Ibid at [10]

 18   Ibid at [13]

 19   Ibid at attachment N

 20   Ibid at attachment P

 21   Ibid at attachment P

 22   Ibid at attachment Q

 23   Ibid at [19]

 24   Ibid at [20]

 25   Transcript PN 379-381

 26   Transcript PN 426

 27   Exhibit R2

 28   Transcript PN 420

 29   Exhibit A1 at JB3

 30   Ibid at JB4

 31   Ibid at JB5

 32   Ibid at JB6

 33   Ibid JB7

 34   Ibid JB10

 35   Ibid at [13]

 36   Supplementary submissions of the Applicant at [16]

 37   Ibid at [19]

 38   Supplementary submissions of Mud’s at [9]

 39   Ibid at [10]

 40   Ibid at [14]

 41   Ibid at [15]

 42   Ibid at [16]

 43   Ibid at [17]

 44   Ibid at [27]

 45   Ibid at [56]

 46   Ibid at [57]

 47   Ibid at [59]

 48   Transcript PN 287

 49   Exhibit R1 at [20], Exhibit R2, Transcript PN 243, 245, 249, 250, 257, 260, 262, 263, 287, 368-374, 375, 402, 411-416, 431-436

 50   Section 15

 51   Section 21A

 52 [2104] FCA 370

 53   Ibid at [57]

 54   Ibid

 55   See section 4.

 56   See section 248.

 57   See section 242, 243 and 244.

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