Larina Joanne Harper v St Bartholomew's House Inc T/A St Bart's
[2022] FWC 534
| [2022] FWC 534 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Larina Joanne Harper
v
St Bartholomew’s House Inc T/A St Bart’s
(U2021/9799)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 16 MARCH 2022 |
Application for an unfair dismissal remedy
On 4 November 2021, Ms Larina Harper made an unfair dismissal application pursuant to s 394 of the Fair Work Act 2009 (Act). Ms Harper had been employed by St Bartholomew’s House (St Bart’s) as a Support Worker since 14 October 2019. Her employment was terminated on 13 October 2021 on the basis of her purported misconduct.
On 18 January 2022, a conciliation conference was conducted at the Fair Work Commission in Perth. Ms Harper was accompanied by her support person from the Australian Services Union (ASU) and her representative, a Mr Lewis Price of the ASU, appeared remotely due to COVID-19 restrictions. Mr Searcy, Human Resources Manager for St Bart’s, attended the conference in person accompanied by the Integrated Services Manager for St Bart’s.
St Bart’s argues that Ms Harper’s unfair dismissal application should be dismissed under ss 399A and 587 of the Act because the parties reached a binding agreement to settle the application towards the conclusion of the conciliation conference with Deputy President Binet. St Bart’s notes that such agreement was recorded by the Chambers of the Deputy President.
Ms Harper argues that the agreement reached was not binding because: (a) a clause was inserted into the Deed of Settlement (Deed) that was not agreed upon in the conference; (b) a deed is not binding until such time as it is signed by both parties; (c) business is not concluded until payment has been made and the terms of the agreement met; and (d) Ms Harper’s cognition was impacted negatively on the day of entering into the agreement, the inference being that she lacked competence to enter into such agreement and would otherwise have requested a cooling off period.
Ms Harper made a request that the Deputy President not address St Bart’s application to dismiss her unfair dismissal application under ss 587 and 399A on the basis that the Deputy President was ‘conflicted’. That request was acceded to by the Vice President and the matter reallocated to my Chambers.
For the reasons that follow, Ms Harper’s unfair dismissal application is dismissed pursuant to s 587(1)(c) of the Act on the basis that it had no reasonable prospects of success. An Order[1] is issued concurrently to that effect. Further, for the sake of fulsomeness, should it have proved necessary to do so, I would have dismissed the unfair dismissal application under s 399A(1)(c) of the Act, given Ms Harper failed to discontinue the unfair dismissal application after a settlement agreement had been concluded.
Background
The broader context and events leading to the application under ss 399A and 587 were as follows.
As noted, a conciliation conference was convened on 18 January 2022 at 16:00hrs by Deputy President Binet. Ms Harper reports that prior to the conference, her representative, Mr Price, notified the Chambers of the Deputy President that he was in COVID-19 isolation. Mr Price was subsequently informed he was to attend via MS Teams.[2] Distressed at the thought of attending the Commission by herself, Ms Harper was permitted to bring a support person.[3] She availed herself of this opportunity and brought with her Ms Keryn Anderson, the Team Leader of Mr Price from the ASU.[4]
Ms Harper explained that she had not previously met Ms Anderson, and given the time pressure, she was unable to discuss with Ms Anderson her verbal and non-verbal cues, and her distress signals.[5] Ms Harper provided to the Commission a letter from a medical practitioner dated 4 March 2022 that set out that Ms Harper attended the medical practice for symptoms of anxiety, depression, and PTSD.[6] It further noted that Ms Harper was receiving treatment for such conditions which was continuing.[7]
Ms Harper reports becoming further upset at 14:30hrs on 18 January 2022, by St Bart’s response to her application to produce contact details for witnesses.[8] According to Ms Harper, St Bart’s had purportedly responded to the application to the effect that Ms Harper was on a fishing exercise to find out who had complained about her and that it had a responsibility to protect its staff and third parties from her.[9]
Ms Harper stated that as a former Quarantine Inspector, justice and laws were important to her and that she had no history of violence or unsavoury behaviour. However, having been advised by Mr Price to ‘let it go’ and focus on the conciliation conference, Ms Harper proceeded to the Commission.
The drive to the Commission was undertaken by Ms Anderson.[10] Ms Harper expressed that she had made it clear to Mr Lewis that when distressed she restricts her driving because of concern over causing an accident.[11]
Ms Harper detailed that the Deputy President informed the parties that the conference was confidential, mobile phones were not to be utilised, and outlined conduct requirements for the meeting. Such requirements included ‘no swearing, abuse or yelling’. Ms Harper states that she considered that these comments were being directed at her and having observed that the representatives for St Bart’s were already present in the room when she arrived, she said she questioned ‘what on earth had they been telling the Deputy President before she entered the room’.[12]
Ms Harper described a process whereby Mr Lewis and Mr Searcy outlined initial positions and statements.[13] Ms Harper noted that at her request, her voice was able to be included in the proceedings.[14] Shortly after the initial positions were provided, Ms Harper recalls that the representatives of St Bart’s left the room and at various times the Deputy President went from one room to another.
Ms Harper reports feeling defeated during the conciliation process and that justice was just a figment of her imagination notwithstanding having studied years of social work.[15] Such feelings appear to have arisen from Ms Harper and her representative being left in the room with the Associate to the Deputy President.[16]
Ms Harper also recalls having said toward the end of the meeting that her brain was fried – she said she had forgotten that she could ask for a break in proceedings to accommodate the needs of her disability. Ms Harper said that Mr Price had asked her if she wanted to take a break, but she had replied ‘if it’s going to delay proceedings then no – I just want to get out’.[17]
Ms Harper said that having gone to speak to Mr Searcy, the Deputy President returned to the room to inform her that Mr Searcy was seeking approval for the payment from St Bart’s management. Thereafter, Mr Searcy returned to the room informing that the payment figure had been approved.[18]
Ms Harper recalls that the verbal agreement was recorded and included: (a) financial settlement; (b) statement of employment; (c) change of termination status; (d) non disparagement by either party; (e) agreeing to not proceed with a claim to the Equal Opportunity Commission; (f) matter must be finalised within 14 days of conciliation; (g) once business had been concluded that Ms Harper would discontinue the application.[19]
It was Ms Harper’s account that the Deputy President informed the parties that the verbal statement was a binding agreement.[20] Ms Harper expressed that her understanding was that a binding agreement meant one still had room for refusal, and a change of mind.[21] Ms Harper reports that when making her statement (no description is provided as to what statement Ms Harper was making), she struggled to articulate herself to the symptoms of anxiety which had impacted her functioning.[22]
Ms Harper shared that her belief was that any agreement was subject to a waiver of the agreement dependent on the circumstances.[23] She said she did not realise that if she wanted a period to review the verbal agreement that she could have asked for it.[24] Ms Harper said that given her symptoms of anxiety she believed that this should have been included in the verbal agreement to allow her to fully comprehend what she was agreeing to.[25]
Ms Harper stated that when the meeting closed, the Deputy President left the room and Mr Searcy offered to draw up the agreement, which Mr Lewis agreed with. Ms Harper said that Mr Lewis checked himself to clarify if that was ok with her. Ms Harper said she nodded and agreed to it.[26]
Ms Harper recalled that when the Deputy President left the room, the Integrated Services Manager jumped out of her chair and refused to extend basic courtesies.[27] Ms Harper said that she was able to recognise that she would need to read the Deed very closely before signing it to ensure that there were no additional clauses added, and that the agreement was adhered to.[28]
Ms Harper received a copy of the Deed on 21 January 2022.[29] Ms Harper observed that the Deed was in ‘legal jargon,’ and she focussed on a few key points, noting deviations that were not discussed at the conciliation conference.[30]
One of the deviations that Ms Harper was referring to was the inclusion of a clause which required her to agree that she had received legal advice (or the opportunity to), her signature was made willingly and without coercion or duress, and other terms that she did not fully understand and were not discussed at the meeting.[31]
Ms Harper expressed concern about different signing requirements in the deed. She observed that the signatory for St Bart’s had not been present in the meeting and yet had signed it, whereas Ms Harper was required to sign and have her signature witnessed. Ms Harper said that this made her question whether there were other inequities in the agreement.[32]
Mr Searcy described a process whereby the Deputy President outlined proceedings, listened to submissions from the parties and then the parties went into private session.[33] He said that an agreed position was reached on the terms of settlement and at that point the Deputy President invited both him and the Integrated Services Manager back into the conference room.
Like Ms Harper, Mr Searcy recalls the Deputy President outlined to the parties that they had reached an agreement and that it was binding.[34]
According to Mr Searcy, the Deputy President further outlined that her Associate would record on transcript the terms and conditions of binding agreement they had settled on.[35] Mr Searcy said the Deputy President read the terms and conditions of the agreed settlement and that they would be restated in a Deed to be prepared by the St Bart’s.[36]
Mr Searcy stated that he prepared the Deed on 21 January 2022 and restated all the details of the binding agreement made at the Commission on 19 January 2022.[37] He thereafter emailed the Deed to Mr Lewis on that same date.[38]
Legal principles regarding the ‘agreement’
There are several issues are in dispute between the parties in relation to this matter. However, the most pressing is whether a binding settlement agreement had been reached between Ms Harper and St Bart’s to settle the unfair dismissal application of Ms Harper.
In Singh v Sydney Trains (Singh),[39] the Full Bench of the Commission set out the legal principles relevant to the question of whether there was a binding settlement agreement. The Full Bench cited the judgment of Pavlovic v Universal Music Australia Pty Limited,[40] in which the relevant principles concerning the intention to create legal relations were traversed. In short, those principles were:
a)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;[41]
b)where the case does not depend on the construction of a single document, there is to be an objective determination of the communications between the parties in their context, and the parties’ dealing over the time leading up to the making of the alleged contract –this will inevitably entail consideration of the subject matter of the communication including what the parties said or wrote.[42]
In Singh, the matter did not involve complexities where contractual intention is inferred from behaviour, or is imputed.[43] Whether there was a legally binding settlement reached between the applicant, Mr Singh and the respondent, Sydney Trains, involved the interpretation of the express written communications between the parties’ solicitors.
The Full Bench observed that an offer and acceptance must precisely correspond, noting that the following principles were relevant to this requirement:
a) An acceptance corresponds to an offer if it is an unequivocal acceptance of the terms offered.[44]
b) 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.[45]
c) 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.[46]
d) Acceptance will be effective if it sets out expressly what would be implied by law in the absence of express agreement.[47] 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.[48]
e) 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’.[49]Such a request for information does not revoke the offer and may constitute acceptance of the offer.
However, the Full Bench acknowledged that ultimately the question was 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’.[50] The Full Bench explained that 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.[51] A counteroffer accepted by the original offeror creates a binding agreement.
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. In Masters v Cameron,[52] the High Court held that a binding agreement could come about in the following manner:
…It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.
In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution.
In Singh, the Full Bench referred to a fourth category derived from the decision in Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (Baulkham Hills), where 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.[53]
The Full Bench continued that when parties 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.[54]
Consideration
First, it is evident that the Deputy President informed the parties that their agreement was binding, and no objection was taken to that statement. Second the parties had articulated in detail, as recalled by Ms Harper, the terms of their agreement.[55] Third, at all material times Ms Harper was represented by Mr Price of the ASU. Fourth, after discussions between Ms Harper’s representative and Mr Searcy, it was agreed that Mr Searcy would prepare the Deed.
Ms Harper has taken issue with the agreement on several fronts, arguing that it is not binding. Ms Harper is incorrect. The agreement is legally binding.
Ms Harper expressed that her understanding was that when one entered a binding agreement one still had room for refusal, and a change of mind.[56] On any objective level the ordinary meaning of the word ‘binding’ would suggest otherwise, and for a person who has clearly occupied positions requiring sound literacy, it appears implausible that Ms Harper did not understand what was meant by the word ‘binding’. The presence of Mr Price must of course not be negated. Accompanied by a representative from the ASU, it was not the case that Ms Harper was absent a resource from whom to seek clarification. Whilst Mr Price may not have been a legal representative, there is no suggestion that he was wanting of industrial experience or expertise – he was after all an employee of a union.
Ms Harper spoke of the inclusion of a clause into the deed that had not been agreed upon in the confines of the conference. That clause appeared to be clause 8(a) of the Deed which stated:
[T]he Employee acknowledges she has entered into this deed voluntarily and without any
duress from any Party and has had the opportunity to obtain legal advice.
During the hearing Ms Harper expressed that she felt that she had been coerced into the agreement and placed under duress. Further, she considered that if she had signed the Deed, she would be in fact falsifying circumstances as she had not obtained legal advice. On this point, Ms Harper pressed that Mr Price was not a legal representative. Ms Harper further observed that the Deed contained legal jargon and that she was not refusing to sign the Deed but simply wanted to obtain legal advice.
At the end of the conciliation conference a recording was taken of the terms of the agreement. I have viewed and listened to that recording. Ms Harper stated that in her capacity as the applicant she agreed to the terms as outlined by the Deputy President. In brief, those terms included that Ms Harper’s dismissal would be considered a resignation, she would be provided with a statement of service, precise detail was provided of a payment to be made to Ms Harper, parties agreed to mutual confidentiality clauses and mutual release clauses, and the payment to Ms Harper was to be made within 14 days of settlement. It was also agreed that Mr Searcy would provide a draft of the Deed to Mr Price.
Ms Harper agreed and understood that the agreement would be documented in some formal manner. The parties agreed in the conference to reduce to writing their agreement in the form of the Deed. It is therefore not unexpected that a formal document may include what Ms Harper coined as ‘legal jargon’. The inclusion of such wording does not in and of itself detract from the agreement being binding in nature.
Clause 8(a), which Ms Harper took issue with, outlined that Ms Harper ‘had had the opportunity to obtain legal advice’. The clause did not compel Ms Harper to obtain legal advice or to have received legal advice. It records an acknowledgement that the opportunity was there for Ms Harper to have of obtained legal advice.
Clause 8(a) further refers to Ms Harper having entered the Deed voluntarily and without any duress. During the hearing, Ms Harper expressed feelings of having been coerced and placed under duress in reaching the agreement. Understandably, Ms Harper failed to appreciate the legal meanings of such words and connected the terms as being associated with her mental health or emotional state. For example, Ms Harper described being under duress due to her escalated caregiver burden, and ongoing professional and personal assassination by St Bart’s. There was not however, any evidence to suggest that coercion or duress had a part to play in the agreement reached.
Clause 8(a) of the Deed was not expressly referenced by the Deputy President in the conciliation conference, albeit it was included in the Deed provided to Mr Price by Mr Searcy. In my view, its inclusion does not deviate from the offer accepted. Clause 8(a) sits in the Deed as an acknowledgement that Ms Harper voluntarily entered the Deed and had had the opportunity to obtain legal advice. So much is clear from the plain meaning of the words, and as such did not constitute a deviation from the offer made and accepted. That Ms Harper entered the agreement voluntarily was implicit. That she had had opportunity to obtain legal advice was an acknowledgement only, of such opportunity.
Ms Harper claimed that clause 6 of the Deed was unlawful and violated her human and constitutional rights. Clause 6 provided that the Deed may be pleaded as a bar to any ‘claim’ (a term which was defined) in respect of any matters arising out of, touching on, referred to or contained in this deed. Given the mutual release agreed upon by the parties, clause 6 simply served as the machinery by which to address a potential breach of that release hence again not deviating from the offer made.
The agreement reached between the parties was of the first (Masters v Cameron) or fourth type described in Singh and as such was contractually binding.
Ms Harper asserted that a deed was not binding until such time as it is signed by both parties, or, that business is not concluded until payment has been made, and the agreement met. Whilst levelly no opprobrium toward Ms Harper, the decisions of Singh and Masters v Cameron clearly dispose of such misunderstandings.
Ms Harper detailed at some length that her cognition was impacted negatively on the day of entering into the agreement, the inference being that she lacked competence to enter into such agreement and would otherwise have requested a cooling off period. Ms Harper spoke of mental health challenges and her caring burden of a family member. Whilst not underestimating the challenges faced by those who are carers, or by those who are at times incapacitated due to their mental health, the evidence does not lead to a finding that Ms Harper lacked competence to enter into a binding agreement.
No evidence was led to suggest that the Deputy President was informed that Ms Harper was unfit to participate in the conciliation conference – whether by Ms Harper, her representative or support person from the ASU. Whilst a letter from a medical practitioner was tendered into evidence by Ms Harper, it was dated early March 2022, after the conference, and it made no mention of Ms Harper being unfit. While Ms Harper was said to be receiving treatment for symptoms of anxiety, depression, and PTSD, it is a long bow to draw to suggest that a person in receipt of medical treatment lacks competence to enter into a contractually binding agreement or is otherwise unfit.
Conclusion
For the reasons set out above I am satisfied that a binding settlement agreement was reached between Ms Harper and St Bart’s in settlement of her application made to the Commission for unfair dismissal.
I consider that the unfair dismissal application should be dismissed pursuant to s 587(1)(c) of the Act on the basis that it had no reasonable prospects of success. This is because the binding settlement agreement extinguished Ms Harper’s existing cause of action (the unfair dismissal application) and replaced it with a new cause of action based on the agreement.[57]
Section 587(1) of the Act provides that the Commission may dismiss an application:
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.
The powers of the Commission to dismiss an application are not limited to those
specified in s 587(1). This much is clear from the words ‘[W]ithout limiting when the FWC
may dismiss an application…’. However, even if the powers to dismiss were so limited it
would not affect my conclusion, based on the authority in Australia Postal Corporation v Gorman (Gorman),[58] that Ms Harper’s application has no reasonable prospects of success. In Gorman, Besanko J remarked:
31 An accord and satisfaction extinguishes any 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 subsequent litigation of the original claim: it is an answer to the claim.
…
33 There is nothing in the [Fair Work] Act which suggests that an accord and satisfaction should not be recognised…As I have said, an accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such a cause of action is clearly capable of being considered frivolous or vexatious or without reasonable prospects of success.
The Act provides at s 381 that a ‘fair go all round’ is to be accorded. However, the concept of a ‘fair go’ does not extend to circumstances where an applicant for unfair dismissal has the opportunity to change their mind and seek to agitate their unfair dismissal case after they have reached a binding settlement agreement with the respondent to the matter. Ms Harper stated:
I recognise that I feel less burdened in the knowledge that I am not forced to sign an Agreement or settle for a paltry figure where I have suffered extensive impacts from the results of Discrimination and Unfair work practices of St Barts. I realise that this feeling of being unburdened is because I felt coerced into agreeing with the Deed of Settlement and agreed only because I was under duress and felt there were no other options for justice.[59]
Evidently, Ms Harper considered that having entered into the agreement, she had settled her application for insufficient pecuniary benefit – money. Ms Harper however was represented by the ASU and in addition was provided with support by that same registered organisation. The evidence does not support a finding that Ms Harper lacked competence to enter into a binding settlement agreement or that she involuntarily entered into that agreement.
Ms Harper’s narrative was coloured by suggestion that in some way the conduct of the Deputy President was unusual – such that there was interference to reduce the settlement amount by a presiding person and that the process engaged in by having the Deputy President’s Associate remain in the room with her and her support person, was in effect giving a privilege to the respondent employer – such that Ms Harper felt like a criminal.[60]
In response to such grievance the following points are made. First, from the evidence led, it is difficult to discern how such alleged conduct rendered the agreement entered as one that was not binding. Second, while Ms Harper may have harboured discontent regarding the way the process was engaged in, she was accompanied by a support person from the ASU and her representative was from the ASU. She therefore was not short of assistance to advocate her position in the conference – which she appears not to have done. That she chose not to do so in the confines of the conference, does not subsequently provide Ms Harper with license to make statements regarding the Deputy President that may border on constituting an offence under s 674 of the Act.
DEPUTY PRESIDENT
Appearances:
Mr W. Allie for the Applicant;
Mr B. Searcy for the Respondent.
Hearing details:
Perth (by telephone)
10 March 2022
[1] PR739181.
[2] Witness Statement of Ms Harper dated 8 March 2022 [28] (Harper Statement).
[3] Ibid[29].
[4] Ibid [31].
[5] Ibid [31].
[6] Harper Statement Attachment 12.
[7] Ibid.
[8] Harper Statement (n 2)[35].
[9] Ibid [33].
[10] Ibid [36].
[11] Ibid [36].
[12] Ibid [42].
[13] Ibid [44].
[14] Ibid [43].
[15] Ibid [48].
[16] Ibid [47].
[17] Ibid [50].
[18] Ibid [52].
[19] Ibid [53].
[20] Ibid [54].
[21] Ibid [54].
[22] Ibid [54].
[23] Ibid [56].
[24] Ibid [56].
[25] Ibid [56].
[26] Ibid [58].
[27] Ibid [59].
[28] Ibid [60].
[29] Ibid [63].
[30] Ibid [64].
[31] Ibid [65].
[32] Ibid [67].
[33] Witness Statement of Ben Searcy dated 21 February 2022 (Searcy Statement) [4].
[34] Ibid [7].
[35] Ibid [8].
[36] Ibid [9].
[37] Ibid [12].
[38] Ibid [13].
[39] [2017] FWCFB 4562 (Singh).
[40] [2015] NSWCA 313 [15].
[41] Masters v Cameron (1954) 91 CLR 353, 362 (Masters).
[42] Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309.
[43] Singh (n 39) [47], citing Brambles Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153.
[44] Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32 [84] (Redowood).
[45] Boreland v Docker [2007] NSWCA 94 [76]-[78].
[46] Ibid [76]; Cavallari v Premier Refrigeration Co Pty Ltd (1952) 85 CLR 20, 26-27.
[47] Brookfield Australia Investments Limited v Lucas Stuart Pty Limited [2012] NSWSC 1130 [34].
[48] Ibid [30]-[31].
[49] Ibid [35], citing Howe v Connell [1997] NSWSC 432, quoting Stevenson v McLean (1880) 5
QBD 346.
[50] Redowood (n 44) [76], citing Carter v Hyde (1923) 33 CLR 115.
[51] Capital Securities No. 1 Pty Ltd v Saliba [2016] NSWSC 1093 [77].
[52] Masters (n 41) 360-361.
[53] Singh (n 39) [55], citing (1986) 40 NSWLR 622.
[54] Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1, [10]-[12]; Howe v Connell [1997] NSWSC 432.
[55] Harper Statement (n 2) [53].
[56] Ibid [54].
[57] Australian Postal Corporation v Gorman [2011] FCA 975 [31].
[58] Ibid.
[59] Harper Statement (n 2) [84].
[60] Ibid [124], [46]-[47].
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