L L & A Services (Sullivan Nicolaides Pathology) T/A Bradley Services

[2020] FWC 6148

[2020] FWC 6148

The attached document replaces the document previously issued with the above code on 18 November 2020.

Paragraph 8 corrected. Date inserted into cover sheet.

Associate to Commissioner Bissett

Dated 19 November 2020.

[2020] FWC 6148

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kirra Callander
v
L L & A Services (Sullivan Nicolaides Pathology) T/A Bradley Services
(U2020/10617)

COMMISSIONER BISSETT MELBOURNE, 18 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] Ms Kirra Callander (Applicant) made an application to the Commission on 5 August 2020 seeking relief from unfair dismissal (the UD application) in relation to the termination of her employment with L L & A Services (Sullivan Nicolaides Pathology) T/A Bradley Services (Respondent). The Applicant, in her application, argued that she had been constructively dismissed by demotion from her position.

[2] On 25 August 2020 the Commission received notification from the Applicant’s (then) representative which said:

Dear Sir / Madam

We report this matter has settled, pending the exchange of a formal deed.

Accordingly, we would ask that the conciliation conference be de-listed.

Please let us know if we may be of any further assistance in this matter.

[3] The UD application was noted on the Commission’s electronic file as having been “settled in principal,” and resulted as having been “withdrawn prior to conciliation” and the file closed.

[4] On 8 October 2020 the Applicant emailed the Commission and requested that the matter be re-opened. Her email said:

To whom this may concern,

I would like to request the matter U2020/10617 be reopened. I apologise for the late request. I had tried to sort the matter out with my solicitor at the time but was unable to. He has since removed himself from the case. I have also been unwell due to [reason given].

I lodged an application for unfair dismissal that was withdrawn prematurely during negotiations to settle. I had not agreed to the settlement and the terms were not satisfactory. I had also not agreed to this matter being withdrawn nor did I direct the solicitor to do this on my behalf.

I appreciate your assistance with this matter.

Regards

Kirra Callander

[5] The Commission subsequently wrote to the Applicant, her representative at the time and the Respondent and sought submissions as to whether the application had been settled.

[6] Both the Applicant and Respondent indicated they did not wish to be further heard on the application to have the UD application re-opened and were content for the Commission to determine the matter on the basis of the submissions and statement filed.

SUBMISSIONS

[7] Submissions were received from the Applicant (through her now legal representative), the Respondent (through its legal representative) and from the Applicant’s previous legal representative who was representing her at the relevant time (referred to herein as the settlement lawyers).

[8] The Commission had issued directions to the settlement lawyers that it provide any submissions and evidence as to whether any binding settlement agreement had been reached. The Commission did not ask for access to documents related to the settlement discussions and hence did not request the settlement lawyers to abrogate any privilege it owed to the client, rather the Commission sought any submissions that might assist in the resolution of the issue before the Commission. No Order was made requiring that the content of the settlement discussions be provided to the Commission. Any claims of privilege would have been appropriately considered.

[9] In the material filed the settlement lawyers indicate that the material filed has been redacted for without prejudice and privileged material. They also state that they “understand that Ms Callander does not waive legal professional privilege.” The email from the Applicant to the settlement lawyers indicated that she was content for the settlement lawyers to provide the information sought by the Commission. To the extent that the Applicant is willing to have this material provided to the Commission it seems to me that she has waived privilege.

[10] Lawyers for the Respondent filed, with their submissions, a statement of Aaron Anderson. Annexed to that statement is correspondence and documents exchanged as part of the settlement negotiations. The Respondent lawyers acknowledged that the documents are privileged but argued that as the basis of the settlement agreement is at issue, and those materials evidence the making of the said agreement, they are therefore admissible in accordance with section 131(2)(f) of the Evidence Act 1995 (Cth). In this respect some of the material attached to Mr Anderson’s statement has been redacted as, it is said, that redacted information does not fall within the carve out in the Evidence Act.

[11] The documents provided by the Applicant’s settlement lawyers, to the extent they fall within section 131(2)(f) of the Evidence Act are also admissible.

Applicant

[12] In her submission the Applicant says that:

•  The settlement reached between the Applicant and Respondent was subject to the final written terms;

•  She has not signed any Deed or version of the Deed;

•  She was not provided with the opportunity to properly consider the proposed Deed and on 21 August 2020 she agreed with her settlement lawyer that she would consider the proposal over the weekend and provide her response to them on 24 August 2020;

•  On 24 August 2020 she advised her settlement lawyers that she did not wish to finalise the Deed but rather continue negotiations. Between 24 and 26 August 2020 she advised her settlement lawyers of a number of specific concerns she had of the proposed Deed. These were not minor or inconsequential matters and included:

•  The confidentiality and non-disparagement clauses;

•  The scope of the settlement sum;

•  The scope of the bar to future proceedings in relation to personal injury;

•  How outstanding wages should be dealt with; and

•  The provision of a statement of service.

•  She did not instruct her settlement lawyers at any time to settle the matter or to indicate to lawyers for the Respondent that there was an agreement. The Applicant communicated to her settlement lawyers that she did not agree with the terms of settlement on 22 September 2020 at 10:00am; 3 September 2020 at 12:20am and 25 August 2020 at 3:10pm;

•  Her settlement lawyers pre-emptively advised the Commission that the conciliation scheduled for 26 August 2020 should be cancelled. This matter is distinguishable from that in Australian Postal Corporation v Gorman 1 (Gorman) because in that matter the parties had attended a conference to reach agreement.

Respondent
[13] The Respondent submits that the UD application should be dismissed pursuant to s.399A(1)(c) of the FW Act as the Applicant has failed to discontinue her application after a settlement agreement was made or, alternatively, should be dismissed pursuant to s.587 of the FW Act as it is frivolous, vexatious or has no reasonable prospect of success (Gorman).

[14] The Respondent submits that whether there is a binding settlement agreement depends on whether the parties “intended to bind themselves to an agreement and whether the offeree has accepted the offer of the offeror.” 2 Further, it submits that a “purported acceptance which does not correspond to the offer is a counter-offer capable of acceptance and a counter-offer accepted by the original offer or creates a binding agreement.”3

[15] The Respondent submits that the sequence of events relevant to settlement negotiations 4 are:

10 August 20920	The Respondent made an offer of settlement in a letter
19 August 2020	The Applicant rejected the offer and made a counter-offer
21 August 2020	The Respondent accepted the counter-offer and sent to the Applicant an amended deed reflecting acceptance of the counter-offer
21 August 2020	The Applicant requested two changes to the wording of the deed
24 August 2020	The Respondent advised it did not object to the amendments sought and indicated it would provide an amended deed
24 August 2020	The Applicant’s lawyer and Respondent’s lawyer agreed that the Commission be advised matter had settled and that a deed was being formalised
24 August 2020	The Applicant’s lawyer indicated he had conferred with the Applicant and, subject to the Respondent responding on three issues, the matter was regarded as settled subject to signing the form deed
25 August 2020	An amended deed was provided to the Applicant reflected three amendments sought
27 August 2020	The Applicant’s lawyer requested an amended deed
1 September 2020	The Applicant’s lawyer indicated he had contacted the Applicant to follow up on the return of the deed
14 September 2020	The Applicant’s lawyer indicated he had been unable to contact the Applicant
2 October 2020	The Applicant’s lawyer indicated that he had ceased acting for the Applicant

[16] The Respondent submits that, as at 21 August 2020, the Respondent accepted a counter-offer of the Applicant with the intention of the parties that agreement was reached, pending it being put in writing. In this regard the Respondent says that the circumstances fall into the first class of agreements referred to in Masters v Cameron 5 in that the parties intended to be immediately bound by the terms of the agreement but to have the terms restated in a fuller or more precise form but to the same effect.

[17] The Respondent submits that the evidence is clear that it accepted the counter-offer put by the Applicant on 21 August 2020 without condition and accepted further amendments by return of the amended deed on 25 August 2020.

[18] The Respondent submits that the Applicant’s lawyer did not disabuse it of the expectation that the deed would be executed by the Applicant.

[19] The Respondent says that the correspondence after 25 August 2020 “are best characterised as ancillary to the substantive settlement agreement” as that correspondence did not seek to alter the effect of the settlement agreement but rather:

•  Sought precision in the manner and timeframe is which the settlement would be paid – which did not alter the parties’ obligations under the Agreement;

•  Sought to clarify the payment of outstanding wages separate to the settlement amount – which did not alter the parties’ obligations under the Agreement;

•  Sought to clarify the interpretation of the release clause – which did not alter the terms of the agreement;

•  Sought to clarify how the payment would be treated for taxation purposes – which was a matter outside the Respondent’s control.

[20] The Respondent submits that similar circumstances to those in this matter arose in Tucker v State of Victoria 6 where it was concluded that a binding settlement agreement had been reached not withstanding that the formalities of the deed remained to be discussed, there was continued correspondence after the date the counter-offer was accepted about the terms and the Applicant sought, not successfully, to depart from the accepted counter-offer.

RELEVANT LEGAL PRINCIPLES

[21] In Singh v Sydney Trains the Full Bench set out the relevant legal principles to the determination of whether a binding settlement agreement was reached.

[46] Chief Justice Bathurst of the New South Wales Supreme Court explained the relevant principles concerning intention to create legal relations in the following way in Pavlovic v Universal Music Australia Pty Limited: 7 

“It is well established that the question of whether the parties intended to bind themselves to a contract is to be determined objectively, having regard to the intention disclosed by the language the parties have employed: Masters v Cameron [1954] HCA 72; 91 CLR 353 at 362. In cases such as the present, which do not depend on the construction of a single document, what is involved is the objective determination of the question from the communications between the parties in their context and the parties’ dealings over the time leading up to the making of the alleged contract. This involves consideration of the subject matter of the communications: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550. As was said by Mahoney JA and McHugh JA in Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309, that includes consideration of what the parties said or wrote (at 334, 337).”

[47] The present case does not involve complexities which often arise where contractual intention is inferred from behaviour, or is imputed. 8  Whether there was a legally binding settlement reached between Mr Singh and Sydney Trains involves interpretation of the express written communications between the parties' solicitors.

[48] An offer and acceptance must precisely correspond. The following principles are relevant to this requirement:

•  An acceptance corresponds to an offer if it is an unequivocal acceptance of the terms offered. 9 

•  An acceptance is not an unequivocal acceptance of the terms offered if it deviates from the offer, even if that deviation is not material or important. However, as a qualification to this principle, if a new term is included in a purported acceptance of an offer and the new term is solely for the benefit of the offeror, then this can constitute a valid acceptance. 10 

•  An acceptance will be effective if it does not depart from the terms of the offer, but simply repeats in the offeree’s own words the effect of the offer. 11 

•  Acceptance will be effective if it sets out expressly what would be implied by law in the absence of express agreement. 12  For example, an offer may contemplate that, were it to be accepted, a document would be prepared to record its terms. In proposing that a deed be prepared as part of an acceptance of such an offer, the offeree would be stating that which would be implied by law arising from the terms of the offer, namely, that it would be documented in some formal manner.13

•  Similarly, if a purported acceptance of an offer merely includes the “machinery of working out what was meant by the offer, it is on the same plight as a request for information”. 14  Such a request for information does not revoke the offer and may constitute acceptance of the offer.

[49] Ultimately the question is whether a “reasonable recipient of the acceptance would have regarded it as corresponding to the offer or whether they would have taken the acceptance to be qualifying the original offer such that it would amount to a counter-offer or, at any rate, not an unconditional acceptance of what was originally offered.” 15  Put another way, the language used by the offeree in their acceptance of the offer must be such as would convey to a reasonable person in the position of the offeror a clear and definite decision by the offeree to be bound by the terms of the offer, leaving nothing further to be negotiated.16

[50] A purported acceptance which does not correspond to the offer does not necessarily reject the first offer; it is, nevertheless, a counter-offer capable of acceptance. 17  A counter-offer accepted by the original offeror creates a binding agreement.18

[51] Conduct of the parties after the making of the supposed agreement is relevant. Such conduct may be considered in order to determine whether the prior dealings between the parties gave rise to a binding contract. 19 

[52] The phrase “‘in principle’ agreement” or similar is often used when negotiating the settlement of litigation and generally indicates that there is no intention yet to enter into a binding contract. 20  However, such words must be construed in the context in which they appear and the commercial setting in which the parties were operating.21 In each case, “much will depend upon the individual circumstances of each case as to whether those words demonstrate that the parties had or had not reached a consensus on the essential terms of their bargain and whether they intended to be immediately bound by them”.22

[53] If parties who have been in negotiations reach agreement on terms of a contractual nature and also agree that those terms will be dealt with by subsequent formal documentation, there are several categories into which such negotiations fall. 23  First, the parties reach finality, intend to be immediately bound, and propose restatement of the terms of settlement in a fuller or more precise form but not different in effect. Secondly, the parties have completely agreed all terms but performance of one or more terms is conditional on execution of a formal document. Thirdly, the parties did not intend to make a concluded bargain at all, unless and until they execute a formal contract. Fourthly, the parties intended to be bound immediately and exclusively by agreed terms while expecting to make a further contract in substitution containing, by concept, additional terms.24

[54] When parties do reach an agreement of the first or fourth category referred to in Masters v Cameron and Baulkham Hills, they will be bound by the terms of their bargain, notwithstanding a later disagreement between the parties about the terms to be included in a deed or written agreement between them. 25 

[22] I respectfully adopt these principles and the approach set out by the Full Bench in the determination of the matter before me.

CONSIDERATION

Was an agreement reached on 21 August 2020?

[23] On 10 August 2020 the Respondent made an offer to the Applicant to settle her claim. 26 The offer was put “in full and final settlement of all matters arising in relation” to the Applicant’s employment. By reply correspondence on 19 August 2020 the Applicant’s settlement lawyers rejected the 10 August 2020 offer but put forward a counter-offer they indicated “we are instructed to offer to settle this dispute”.27 That offer was valid until 4.00pm on 25 August 2020.

[24] On 21 August 2020 at 3.23pm the Respondent’s lawyers replied to the settlement lawyers that “I have taken instructions from my client and can advise that your client’s counter-offer…is accepted by our client. As discussed the settlement will be formalised by the parties entering in to attached Settlement and Release Deed.” 28 [emphasis in original]

[25] In this respect I am satisfied that a counter-offer was made by the Applicant and that counter-offer was accepted by the Respondent. As is set out above the acceptance of a counter-offer by the original offeror (in this case the Respondent) creates a binding agreement. The acceptance by the Respondent in this case was clear and unequivocal.

[26] Whilst the settlement lawyers further emailed the Respondent’s lawyers “for consideration of…two issues” – and then a third issue 29 - these matters were to the benefit of the Applicant and were accepted by the Respondent.30

[27] That the formalities of the Deed had not been finalised does not mean that an agreement was not reached.

[28] The Applicant’s argument is that she either did not see or did not agree to the terms of the Deed or that she was not given the opportunity to consider the Deed is problematic. She (or the settlement lawyers acting on her advice) put the counter-offer on her instructions. Her proposal for settlement was accepted. There is no evidence that she intended to continue to negotiate the matter – she put forward what she wanted which was accepted, she then put more after the counter-offer was accepted which was to her benefit and this was further accepted. The Applicant said that she continued to dispute terms of the settlement including the non-disparagement clause, the confidentiality clause, the breadth of the settlement, the bar to further proceedings and the inclusion of outstanding wages (the disputed matters). However, in the process of putting her counter-offer “to settle the dispute” she did not raise these concerns. Her counter-offer was accepted and when she amended that counter-offer further it was again accepted by the Respondent.

[29] A number of the disputed matters were raised by the Applicant with her settlement lawyers who then conveyed the Applicant’s position to the Respondent’s lawyers. A number of the matters were clearly accommodated by the Respondent (for example outstanding wages were removed from the Deed). The Applicant could not keep putting amended counter-offers and not expect that, at some point the Respondent would not say “well, we have accepted what you have said is necessary to settle this dispute, the dispute is settled,” although it is not apparent when the Respondent’s lawyers closed off any further “tweaking” of the Deed.

[30] Even though there were some additional measures sought by the settlement lawyers on the Applicant’s behalf that were accepted by the Respondent after the counter-offer was put I do not consider that these accommodations made the counter-offer uncertain.

[31] The Applicant put her counter-offer and this was accepted. She sought further changes to her benefit which were accepted but this does not change the characterisation of the exchange on 21 August 2020. I am therefore satisfied that there was an agreement reached between the parties.

Is the Agreement binding?

[32] The offer put by the Respondent on 21 August 2020 indicated that it would need to be formalised in a settlement and release Deed. This is the offer that was rejected and resulted in a counter-offer.

[33] In placing the two additional matters to the Respondent the settlement lawyers stated that “otherwise the Deed is in order”.

[34] In Tucker v State of Victoria 31 Deputy President Young found that Mr Tucker’s lawyer in that matter had “ostensible authority” to bind Mr Tucker to a settlement agreement.

[35] In Pavlovic v Universal Music Australia Pty Limited 32 the Court of Appeal, relying on the principle in Lucke v Cleary33 said it was accepted that a lawyer has authority to contract on a client’s behalf in the context of litigation. As was said in Lucke v Clealry:

60. As a general proposition, a solicitor does not have ostensible authority to bind his or her client to a contract.

61. That general proposition, however, is subject to the qualification that, in the context of litigation, a legal practitioner has ostensible authority to bind his or her client to a contract which relates to and, in particular, compromises that litigation. In CIC Insurance Ltd v Bankstown Football Club Ltd, Kirby P drew a clear distinction between ostensible authority in litigious and non-litigious matters:

It is not unreasonable for the appellant to view the conduct of the club, in apparently instructing its solicitor to pursue the subject insurance claim, as including all necessary authority to give effect to those instructions. Incidental to those instructions, it can be inferred, was the power to deal with the issue of the purported cancellation of the contract. Indeed, I should have thought that the instruction of a solicitor to pursue a matter such as a controversial insurance claim would leave a third party dealing with the solicitor with the impression that that solicitor, having been retained for his or her legal expertise, would have all necessary authority to deal with all issues which reasonably and foreseeably arose in the pursuit of that claim. It is not a situation akin to the instruction of a solicitor to pursue non-litigious business where the nature and extent of the solicitor’s authority is not so easily inferred to be so widely encompassing.

62. Even so, in the context of litigation the practitioner’s authority to bind his or her client to a contract is confined to a contract that actually and genuinely relates to the litigation.  (references omitted)

[36] I am satisfied in this case that the settlement did genuinely relate to the litigation (the UD application) and that the settlement lawyers were representing the Applicant in that litigation. Were they not, correspondence from them to the Commission advising that the matter had settled, and that the conciliation conference should be cancelled, would not have been accepted or acted upon.

[37] Further, all correspondence in relation to the settlement was between the lawyers for the Respondent and the settlement lawyers. By their actions and clear words the settlement lawyers accepted the Deed with (ultimately) three changes as conveyed on 21 August 2020.

[38] If the settlement lawyers did not have actual authority to bind the Applicant to the Deed I am satisfied, on the basis of the principle outlined above, that they had ostensible authority as evidenced though their actions on behalf of the Applicant. The Respondent was entitled to consider the counter-offer to be an offer of the Applicant and to accept the advice of the settlement lawyers that the Deed was “in order”.

Post agreement conduct

[39] The Applicant submitted that her conduct post 21 August 2020 indicated that there was no binding settlement agreement. To this end she relies on the further matters she sought to have amended in the Deed as evidencing that it was not her intention to be bound by the Deed.

[40] I do not accept that it was not the intent of the Applicant to be bound by the Deed. Whilst she raised issues in respect of the Deed none of this was to indicate that she had no intention of being bound by it. She sought changes to the Deed that she considered to her benefit. Many of these were accepted. This conduct however does not indicate that she never intended to be bound.

CONCLUSION

[41] For the reasons outlined above I am satisfied that the agreement entered into on 21 August 2020 is of the first or second type referred to in Masters v Cameron and that it is a binding settlement agreement between the Applicant and Respondent.

[42] In Australian Postal Corporation v Gorman 34 the Federal Court confirmed that an unfair dismissal application may be dismissed pursuant to s.587 of the FW Act where binding settlement agreement has been reached. Besanko J said in that matter:

[31] An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim. 

…

[33] There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.

[43] The Respondent has sought that I dismiss the application either pursuant to s.399A or s.587 of the FW Act.

[44] There is no formal application before the Commission that the application be dismissed pursuant to s.399A of the FW Act such that I have not had regard to that provision of the FW Act.

[45] Section 587 of the FW Act states:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[46] The Commission may dismiss an application pursuant to s.587 of the FW Act. This can be done on the Commission’s own initiative.

[47] In circumstances where I am satisfied that an agreement has been reached I am satisfied that the UD application has no reasonable prospect of success. The UD application is therefore dismissed pursuant to s.587(1)(c) of the FW Act.

[48] An order 35 to this effect will be issued with this decision.

COMMISSIONER

Determined on the basis of the written submissions

Printed by authority of the Commonwealth Government Printer

<PR724602>

 1 [2011] FCA 975

 2   Singh v Sydney Trains[2017] FWCFB 4562 at [48]-[49]

 3   Ibid at [50]

 4   The documents referred to are attached to the statement of Mr Anderson

 5 (1954) 91 CLR 353

 6   [2020] FWC 5252

 7 [2015] NSWCA 313 (Pavlovic) at [15]

 8    See, for example, Brambles Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153 (Brambles)

 9    Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32 (Redowood) at [84]

 10   Boreland v Docker [2007] NSWCA (Boreland) at [76]-[78]

 11     Boreland at [76]; Cavallari v Premier Refrigeration Co Pty Ltd (1952) 85 CLR 20 at 26-27

 12    Brookfield Australia Investments Limited v Lucas Stuart Pty Limited [2012] NSWSC 1130 (Brookfield) at [34]

 13    Brookfield at [30]-[31]

 14    Brookfield at [35], applying Howe v Connell [1997] NSWSC 432 and Stevenson v McLean (1880) 5 QBD 346

 15    Redowood at [76], applying Carter v Hyde (1923) 33 CLR 115

 16    Redowood at [84]

 17    Capital Securities No. 1 Pty Ltd v Saliba [2016] NSWSC 1093 (Saliba) at [77]

 18   Evans Deakin Industries Ltd v Queensland Electricity Generating Board (1984) 1 BCL 334

 19    Saliba at [53]-[54], applying B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 at 9149 per Glass JA

 20    Stephenson v Dwyer [2006] NSWSC 1439 at [37]

 21   Donaldson Coal Pty Ltd v Pacific National (NSW) Pty Ltd [2007] NSWSC 1446 (Donaldson Coal) at [91]

 22   Donaldson Coal at [91]

 23   Masters v Cameron

 24   Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 (Baulkham Hills)

 25   Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1 at [10]-[12]; Howe v Connell [1997] NSWSC 432

 26   Affidavit of Aaron Anderson annexure 1

 27   Affidavit of Aaron Anderson annexure 2

 28   Affidavit of Aaron Anderson annexure 3

 29   Affidavit of Aaron Anderson annexure 5

 30   Affidavit of Aaron Anderson annexure 9

 31   [2020] FWC 5252

 32 [2015] NSWCA 313

 33 [2011] SASCFC 118

 34 [2011] FCA 975

 35   PR724603