Latai Smith v Sydney Night Patrol & Inquiry Co Pty Ltd trading as Certis Security Australia
[2022] FWC 1462
•29 JUNE 2022
| [2022] FWC 1462 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Latai Smith
v
Sydney Night Patrol & Inquiry Co Pty Ltd trading as Certis Security Australia
(U2021/11332)
| DEPUTY PRESIDENT CROSS | SYDNEY, 29 JUNE 2022 |
Application for an unfair dismissal remedy – Section 399A
Ms Latai Smith (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) on 8 December 2021, in respect of her dismissal from employment with Sydney Night Patrol & Inquiry Co Pty Ltd trading as Certis Security Australia (the Respondent). The dismissal involved the imposition by the Respondent of a COVID vaccination policy, and the Applicant’s alleged refusal to comply with that policy.
A Conciliation conducted by a staff member of the Fair Work Commission (the Commission) on 19 January 2021, and a Member Assisted Conciliation conducted on 17 February 2022, failed to resolve the matter. Directions for the filing of materials were issued on 17 February 2022. Those Directions were as follows:
1. Latai Smith (the Applicant) is directed to file with the Fair Work Commission, and serve on Sydney Night Patrol & Inquiry Co Pty Ltd trading as Certis Security Australia (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 10 March 2022.
2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 31 March 2022.
3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 14 April 2022.
4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 31 March 2022.
The parties complied with the Directions. In particular:
· On 10 March 2021, the Applicant filed a witness statement of the Applicant dated 10 March 2022, a witness statement of Mr Ljupco Markoski dated 2 March 2022, and a witness statement of Mr Michael Graham dated 27 February 2022;
· On 4 April 2022, the Respondent filed an Outline of Submissions, a witness statement of Mr Moneer Howari, Contractor Manager-Protective Services of the Respondent, a witness statement of Mr Paul Tanios, State Operations Manager of the Respondent, and Mr Sam La Spina, General Manager - Head of Human Resources of the Respondent;
· Also on 4 April 2022, and relating to the application by the Respondent for permission to be legally represented, the Respondent filed the Respondent’s Outline of Submissions Seeking Permission to be Represented and a witness statement of Mr Sam La Spina dated 31 March 2022; and
· On 14 April 2022, the Applicant filed an Outline of Submissions in Reply, and a Reply Witness Statement of the Applicant.
The matter was listed for Hearing on 19 April 2022 (the Hearing). Prior to the Hearing, the matter of the Respondent’s application for permission to be legally represented was determined (the Representation Decision). The Applicant responded to the Respondent’s application on 6 April 2022 objecting to that application, and, on 13 April 2022, by correspondence from my Chambers, the parties were advised as follows:
“Respondent’s request for permission to appear pursuant to s.596 of the Fair Work Act 2009 (Cth).
Deputy President Cross has considered the Respondent’s request for permission to be represented at the Hearing, including the submissions made by the parties in respect of this request. The Deputy President notes that the matter contains issues of legal and factual complexity, including issues that traverse a variety of legal principles, and consideration of contested evidence. It is considered that the matter has sufficient complexity, and the Commission will be assisted by the involvement of legal practitioners. I confirm that permission is formally granted for the Respondent to be represented pursuant to s.596 of the Fair Work Act 2009 (Cth).”
On 15 April 2022, the Applicant sent further correspondence to my Chambers, but not to the Respondent, challenging the Representation Decision. That correspondence was as follows:
“third Notice of objections
Dear Commissioner Cross,
Re: matter number U2021/11332
I do not consent to you allowing the other party to be represented. There are no grounds for this to be allowed as I have clearly outlined the reasons according to the Fair Work Act 2009 Section 596. You must not take the law out of context and you must not allow unfairness in this matter of breach of employment contract.
You are now aiding and abetting a crime to happen against me, and this is a crime under the Criminal Code 1995. I believe you are now committing malfeasance by aiding a third party lawyer to pervert the law for the benefit of your own criminal agenda.
You know this matter is only about the employment contract, and by [sic] continuing to go against the rules of court is a crime. I will be lodging formal complaints if you allow this to continue, as this is causing harm and intimidation to a vulnerable person.
You should know the law and you should understand employment contract law, you should also know the rules of estoppel and the rules of joinder, which were identified in my lawful notices sent to the employer and are now in your possession.
This is not about the public health act or anything else, it is only about the employment contract at hand and I will not allow you to twist this to be a complex matter in place of the original application to Fair Work. I have not challenged the Public Health Act or the Privacy Act.
As I said many times, I do not consent to the party being represented. This is my application and I demand you apply the law and not bring in acts that are irrelevant in this matter.
You know that I have issued a joinder fee for the other party to be represented, which is two million dollars (2,000,000 AUD), and you must now ensure this is paid to me within seven (7) days.
In good faith
By: Latai: Smith
All Rights Reserved.”
The reference to the $2,000,000 joinder fee was to a term contained in a document titled “Notice of Default to Conditional Acceptance to Vaccinate” (the Default Notice), which was served on the Respondent on 25 March 2021, prior to the dismissal of the Applicant. Informing as it does issues that arose in the Hearing, it is useful to set out parts of that Default Notice.
“OFFICE FOUND
Within the universal maxim of law ‘notice to agent is notice to principal and notice to principal is notice to agent’. All addressed parties Jointly and Severally as well as their Successors, Nominees and assigns [sic]
Notice of Default to Conditional Acceptance to Vaccinate
Dear Sam,
Our Reference: 2021/0001
We are writing to you in regards to our first notice to you dated 25 February 2021 and sent by Registered Post no RPP44 63900 05100 15794 72609
As you have been unwilling or unable to provide us with the evidence of your claims, and have failed to respond to our notice as requested and have not provided us with full disclosure of the terms of your offer, nor have you applied the remedy we require, we are now advising that you are now, by your acquiescence, bound by our terms and conditions clearly detailed in our notice.
We are now give you [sic] another chance to provide your evidence for our consideration and offer you another 14 days for your response in the appropriate manner as described herein below.
Herein below I have provided you full details of the original notice sent to you on 25 February 2021;
I, Latai Smith, a living woman retain and reserve all of my God given rights including sole possession and sole use of all my biological materials which are granted to me by my Creator.
My employer and location of employment has offered a vaccination product to me pursuant to and satisfying the requirements of COMMONWEALTH OF AUSTRALIA Public Health Act of NSW and federal Fair Work Act 2009.
I require that any and all product offered to me by my employer or workplace as a condition of my employment be both entirely retrievable from and also removable in its entirety from my body, person and womanhood at the conclusion of each and every work period and or work shift and also and again at the completion of my employment contractual obligations with my location of employment and or employer.
Pursuant to the above statement, I will decline the offer for COVID-19 vaccination product or offer to be vaccinated unless the following conditions are met in entirety, please provide evidence of the following by duly witnessed affidavit of facts;
…
17. You agree you will pay compensation of ten thousand and [sic] dollars ($10,000 AUD) for any Minor Adverse Event (MAE) * which can in any way be reasonably assumed to be a result from any vaccination enforced by you, and
18. You agree you will pay compensation of twenty five million dollars ($25,000,000 AUD) for an adverse event from any vaccination enforced by you which results in any Health Impact Event (HIE) * lasting longer than 24 hours, and
19. You agree you will pay compensation of fifty million dollars ($50,000,000) for any adverse event or Health Impact Events (HIE)* resulting in death, payable to my immediate family members.
…
Non-Negotiable Remedy Terms
These terms become an addendum to the employment contract in existence.
i.If you are unable or unwilling to provide me with the evidence as requested, it is agreed by both parties, you and I, that my employment will remain as it is currently, with no ill affect, no forced termination and you will provide me with full protection of any discrimination in the workplace by you and or your professional advisors and or your other employees. If I feel discrimination of any kind you will take every measure necessary to abate the situation and provide me with a safe workplace.
ii.You will agree to make a payment of twenty five thousand dollars ($25,000 AUD) for each and every incidence of discrimination I may report and suffer in the workplace, including but not limited to segregation of normal duties, relocation of duties, workplace harassment by other employees, management and supervisors or clients.
iii.Should you terminate my employment contract without my consent and without providing sworn evidence of the points 1-15 above, you will agree to a termination payment sum of five million dollars ($5,000,000 AUD) payable immediately prior to termination as cleared funds into my bank account and you will keep confidential all records pertaining to your decisions to terminate my employment and you will provide me with a certificate of service and reference so as not to hinder my ability to obtain alternative employment. Such termination payment shall not be contested by you in any manner either by tribunal or court or other agency and shall not be lawful if agreed termination payment herein is not paid in full.
iv.If termination of employment contract is made without my consent and without payment of agreed termination payment sum of five million dollars ($5,000,000 AUD), you will agree to pay all of my legal costs, invoiced directly to you for me to recover these funds or to contest the termination of contract by any means necessary in a court of law either with a solicitor or a barrister.
v.Joinder conditions: I do not consent to any other party except the named parties on this agreement to joinder to this addendum to my employment contract. A non-refundable joinder fee of two million dollars ($2,000,000 AUD) for any other person or entity to become a party to this private contract including but not limited to legal representation. All applications to joinder must include the fee at time of application or the application will be rejected. We reserve the right to reject any or all applications to joinder this contract without providing a reason.
Please take note that it is not my intention to cause you any harm and this conditional acceptance is not vexatious in any way. It is my intention to continue my employment until retirement age or until such time as the company is no longer able to operate.
All monies agreed to for an MAE or HIE in the four corners of this document are due and payable within 21 days of the event. You also agree that you will be liable for any and all costs for both parties, invoiced directly to you, should any kind of litigation take place as a result of this contract agreed to by both parties, you and I.
Without malice, vexation, argument or merriment. Thank you for your time and assistance offered in this matter.
My very best regards
By:
Latai F Smith
Non-negotiable autograph All Rights Reserved Without Prejudice
UCC1-308(old UCCl-207)
NO assured value, no liability Errors and Omissions Excepted WITHOUT RECOURSE- NON ASSUMPSIT
(Underline added)
The Hearing
At the Hearing the Applicant represented herself, and Ms Rebecca Gall of Counsel represented the Respondent. At the commencement of the Hearing, the correspondence of the Applicant of 15 April 2022, challenging the Representation Decision, was addressed. The Applicant was advised that the Representation Decision would not be revisited, but that as an unrepresented party the Applicant could expect to receive more assistance from the Commission in the conduct of the proceedings than may ordinarily occur. The Applicant was asked whether she understood what had just been said, leading to the following exchange:[1]
MS SMITH: No, I don't understand anything you say. Before we can proceed I've got some questions to ask you. I can't proceed until someone pays the joinder fee. The solicitors have got to go. How many times have I already addressed that to you? I object at how many times and you're being unfair. I'm not going to engage with the lawyers. They owe me $2 million for the joinder first. Isn't this a private contract? This is between myself and the employer. How come the solicitors are here?
THE DEPUTY PRESIDENT: Because I gave them permission to appear.
MS SMITH: Yes, well, how is that fair? Where is the equity in there or fairness? I've sent you questions. I sent you questions and you didn't answer. You're twisting the words. The joinder clearly says in my notices that someone to join my party it means what I say it means, not what the other party thinks or what the lawyer thinks. I will not proceed with the hearing until you address those issues.
THE DEPUTY PRESIDENT: Ms Smith, I have told you the basis upon which permission was granted and that I'm not revisiting my decision. Those reasons were clearly outlined to you in the email from my chambers on 13 April and they go to the matters contained in section 596 of the Act. There is no joinder fee that will be paid to you. We are here to determine your unfair dismissal application.
That being said, one matter I was going to raise with you is as follows: in your correspondence of 5 April, you have noted on a number of occasions that this claim is about your employment contract claim. You say that on three occasions. I understand from reading the materials that you made a claim to the Federal Circuit Court; is that correct?
MS SMITH: I'm not going to answer any of your questions until you answer my questions. This is a private contract. We're not here to address anything other than my contract. Why are you not addressing the joinder? Why are you allowing these solicitors - and who is this counsellor? She hasn't paid - I didn't consent for her. They owe me $2 million each. They're interfering with my case. Why are you allowing them to talk? They haven't paid the joinder fee.
The Hearing continued with the Applicant continually asking for payment of the joinder fee,[2] disputing the Representation decision,[3] and talking over the Commission and the Respondent’s representative.[4]
After 14 minutes of proceedings the Hearing was adjourned. The last exchange before that adjournment was as follows:[5]
THE DEPUTY PRESIDENT: We will stand down until 10.45 at which time I would encourage you, Ms Smith, to return to the conference so that we can hear your unfair dismissal application. I will not revisit the decision on legal representation and I would encourage you to look at particularly section 674 regarding offences in relation to conduct before the Fair Work Commission. I don't want you to stray into an area of your manner of conduct that will have the consequences outlined particularly in that section. The matter is adjourned until - - -
MS SMITH: No, I don't consent - don't agree at all with what you're saying. I will not proceed.
Upon recommencement of the Hearing after the adjournment the Applicant advised she had not read the Act and continued to interrupt the proceedings. In order to hear from the Respondent’s representative, it was necessary to mute the Applicant.
Section 399A Application
The Respondent noted that the Applicant apparently did not wish to proceed with her application and was, therefore, indicating an intention not to attend a hearing by the Commission. The Respondent sought that the Commission dismiss the Application pursuant to s.399A of the Act[6] (the s.399A Application).
Prior to hearing the s.399A Application, and in an attempt to engage the Applicant, the following exchange occurred:[7]
THE DEPUTY PRESIDENT: I wish to hear your unfair dismissal application. I am available. Everyone is available. Everyone has attended this hearing to hear your unfair dismissal application, Ms Smith.
MS SMITH: This is a private matter between my employer and myself.
THE DEPUTY PRESIDENT: No, it is - - -
MS SMITH: These lawyers sitting in that room have no right to be there.
THE DEPUTY PRESIDENT: It is a public matter.
MS SMITH: This is a private matter about an employment contract. They have no right to be here. I've said that how many times?
THE DEPUTY PRESIDENT: This is your last opportunity, Ms Smith. Do you wish for me to deal with your unfair dismissal application today?
MS SMITH: Without those lawyers. They're not in my party - they're not in my contract.
THE DEPUTY PRESIDENT: The lawyers will remain.
MS SMITH: No, they won't. I do not consent.
THE DEPUTY PRESIDENT: Okay.
MS SMITH: I do not consent for them to be in my case and I will not proceed.
It was thereafter necessary to mute the Applicant in order to allow s.399A of the Act to be read to her, together with a summary of how such an application would relate to the circumstances of her claim and the events of the Hearing. At the conclusion of that explanation the following exchange occurred:[8]
THE DEPUTY PRESIDENT: So I have explained to you the application the respondent will advance if you don't run your unfair dismissal case today. I encourage you to participate so that we can hear your unfair dismissal case. Will you do so?
MS SMITH: No, I will not.
The Respondent made submissions in support of their s.399A Application. The Applicant was then given an opportunity to respond to that application but refused.[9] The Applicant subsequently left the Hearing, and subsequently advised my Associate that she did not wish to engage in the Hearing.[10]
On the day following the Hearing my Chambers received correspondence from the Applicant in the following terms:
“Re: matter number U2021/11332
FOR THE RECORD I asked questions the following questions [sic] to the commissioner,
I sent you three notices of objections on dates 16 December 2021, 6 April 2022 and 15 April 2022.
How can we proceed when you haven’t address the joinder issue?
Why haven’t you dealt with my joinder issue?
Where is my money?
Who’s paying?
Who are all these lawyers? Who’s this counsellor that's another $2million dollars, I can’t move forward because no one has paid yet and until someone pays the fee I am not consenting.
When are you going to make them pay the joinder?
We can’t proceed until this is been [sic] dealt with because it’s the major part of the case. Why did you grant them permission to be legally represented?
Where is the fairness in that part?
What right has a third party got to be intervening in the case, to be representing the employer.
Where is my rights in this contract?
Where is my rights in this hearing?
The session was adjourned and when it recommenced they failed to address my questions and did proceed to mute my ability to speak in the case.
The commissioner is required to answer my questions with fairness and equity as I am the injured party and do not consent to the other party be represented by a person who has unlawfully contracted without paying the required and notified joinder fee.
I am not consenting for this case to be dismissed, there's no ground for it.
The commissioner is required to answer my questions urgently before proceeding in this matter.
In good faith
By: Latai: Smith
All Rights Reserved.”
Consideration
Section 399A of the Act provides as follows:
“399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
....
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”
The Commission has the discretion to dismiss an unfair dismissal application under s.399A of the Act on application by an employer, in circumstances where there has been an unreasonable failure to attend a conference or a hearing held by the Commission in relation to the application, or unreasonable non-compliance with directions of the Commission.
The Explanatory Memorandum to the Fair Work Amendment Bill 2012, which amended the Act to include the provision, said in relation to s.399A applications, that the intention of the provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner…. In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.”[11]
In Adrian Whittaker v Total Harvesting Pty Ltd T/A Total Harvesting[12] (Whittaker), Deputy President Clancy summarised the relevant principles in considering s.399A, drawing on a decision of the Full Bench of the Australian Industrial Relations Commission in Ghalloub v Aon Risk Services Australia Limited[13] (Ghalloub). The Deputy President summarised the relevant principles as follows:
“The role of case management was discussed by the Full Bench of the Australian Industrial Relations Commission in Ghalloub v Aon Risk Services Australia Limited (Ghalloub). In summary, that decision outlined the following principles:
1. the starting point of any consideration of an application to dismiss is that an applicant is entitled to have his or her case heard;
2. directions play an important role in case management;
3. accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;
4. the circumstances of each case is central;
5. a history of non-compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant;
6. continuing non-compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.”
The sixth principle outlined in Whittaker directs focus on the circumstances of the Respondent, which are undoubtedly a relevant consideration arising from the objects of the Act. As the Full Bench observed in Viavattene v Health Care Australia[14] (Viavattene):
“… It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).”
Section 381 of the Act provides:
“Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i)the needs of business (including small business); and
(ii)the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i)are quick, flexible and informal; and
(ii)address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.
Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.” (Emphasis added)
(a) Unreasonable Failure to Attend a Hearing or Comply with a Direction
The Directions provided that the unfair dismissal application (the Application) was to be heard on 19 April 2022. Each party had filed significant amounts of materials, and the Commission had prepared and distributed a Digital Court Book of some 734 pages. All that was required at the Hearing was for each party to present their respective cases.
The Applicant simply refused to present her case, and so failed to comply with the Direction that the matter would be heard on 19 April 2022, and/or failed to meaningfully attend the Hearing.
Insofar as the Applicant objected to the Representation Decision, she was repeatedly advised that decision would not be revisited, and that she should proceed with her Application. However, it seems clear from the correspondence before and after the Hearing on 15 and 20 April 2022, and what the Applicant said at the Hearing, that the Applicant’s key concern was being paid $2,000,000, or multiples of that figure, before she would run her Application.
Whatever the basis of her actions, the Applicant quite clearly failed to meaningfully attend a hearing and/or comply with a direction. In fact, by her discourteous actions, the Applicant sought to disrupt the proceeding so they could not occur, over clear warnings regarding the consequences of her actions.
(b) Should the Applicant’s Unfair Dismissal Application be Dismissed
I note that the starting point of any consideration of a s.399A application is that the Applicant is entitled to have her case heard, and I am willing to assume for the purposes of determining this s.399A application that the Applicant has an arguable case in her Application.
The events of the Hearing, however, disclose an obdurate refusal by the Applicant to follow directions of this Commission and advance her claim. The Applicant was provided with numerous opportunities to present her case, which was at an apparently completed level of preparation, but refused to do so. As Deane J said in Sullivan v Department of Transport:[15]
“…it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes on the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.” (emphasis in original)
Justice Kirby made an observation to similar effect in Allesch v Maunz[16] regarding proceedings in the Family Court of Australia, but equally apposite to proceedings before the Commission, when he observed:
“It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made…
…it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. …
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment.”
In what I consider to be the extreme circumstances of this case, it is appropriate that I exercise my discretion to dismiss the Applicant’s unfair dismissal application pursuant to s.399A of the Act as sought by the Respondent.
Conclusion
For the reasons outlined above, I have decided to grant the application by the Respondent and dismiss the Applicant’s s.394 Application pursuant to s.399A(1)(b) of the Act.
An order dismissing the application will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
R Gall of Counsel for the Respondent.
L Smith on her on behalf.
Hearing details:
2022.
Sydney (via Videoconference):
April 19.
[1] Transcript PN 10 to 15.
[2] Transcript PN 21, 27, 58, 92.
[3] Transcript PN 41, 49.
[4] Transcript PN 17, 19, 44, 46, 56, 60 to 76, 91.
[5] Transcript PN 93 and 94.
[6] Transcript PN 108.
[7] Transcript PN 121 to 132.
[8] Transcript PN 155 and 156.
[9] Transcript PN 177 to 191.
[10] Transcript PN 211 and 215.
[11] Explanatory Memorandum, Fair Work Amendment Bill 2012 [161]-[163].
[12] [2018] FWC 1583, at [24]; See also Ingui v MSS Security Pty Ltd[2018] FWC 2201, decision of Masson DP.
[13] Print PR956665, 21 March 2005, Giudice J, Hamilton DP and Larkin C.
[14] [2013] FWCFB 2532, at [39].
[15] (1978) 20 ALR 323 at 343.
[16] (2000) 203 CLR 172. at [35], [38]-[40].
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