Matt Dain v Sam Bradley & Robert Grant

[2012] FWA 7276

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Matt Dain
v
Sam Bradley & Robert Grant
(C2012/4332)

DEPUTY PRESIDENT BOOTH

SYDNEY, 28 AUGUST 2012

General protections - termination of employment - extension of time - second application - attempt to invoke s.550 of the Act.

[1] In this matter the applicant, Mr Matt Dain, asks the Tribunal to exercise its discretion under s.366 of the Fair Work Act2009 (the Act) to grant an extension of time in relation to the lodgement of an application pursuant to s.365 of the Act concerning his dismissal from employment.

[2] The application was made on 21 June 2012 and was listed on 17 July 2012 at which time a conference was held. The matter was set down for hearing on 7 August 2012 and directions were issued for filing of submissions and witness statements. The hearing proceeded on 7 August and Mr Dain was represented by Mr Boatswain, solicitor and Ms Dinnen of counsel and Mr Bradley and Mr Grant were represented by Mr Selig, solicitor and Mr Shariff of counsel.

Background

[3] Mr Dain was employed by Mark Group Australia Pty Ltd (Mark Group) on 5 December 2011 as a casual telemarketer reporting to the Telemarketing Supervisor, Mr Sam Bradley. The Managing Director Australia/New Zealand of the Mark Group is Mr Robert Grant.

[4] Mr Dain was dismissed on 24 January 2012 and this application (the “second application”) was received by Fair Work Australia on 21 June 2012, 149 days later and 89 days after the date of expiry of the 60 day time limit (s.366 of the Act) being 23 March 2012. This application cites the respondents to the dispute as Mr Sam Bradley and Mr Robert Grant.

[5] Prior to the lodgement of this application Mr Dain lodged another application (“the first application”) in the same terms pursuant to s.365 of the Act, concerning his dismissal from employment with Mark Group, citing the respondent to the dispute as Mark Group Australia Pty Ltd. This application, C2012/2610, was lodged on 9 February 2012. On 17 February 2012 a conference was held before Fair Work Australia (FWA). The conference did not resolve the dispute and accordingly a certificate pursuant to s.369 of the Act was issued by McKenna C on the same day.

[6] On 1 March 2012 Mr Dain commenced proceedings (SYG 456 of 2012) in the Federal Magistrates Court of Australia (FMC) citing the respondents to the action as First Respondent Mark Group Australia Pty Limited, Second Respondent Sam Bradley and Third Respondent Robert Grant. An application to have proceedings against the Second and Third Respondents, Sam Bradley and Robert Grant struck out was successful and the application against them was dismissed for want of jurisdiction on the grounds that they were not cited as respondents in the application before FWA that gave rise to the proceedings in the FMC. The judgement in those proceedings was delivered on the day of the hearing, 5 June 2012 and the action arising from the first application against the First Respondent, Mark Group, is listed for hearing in late 2012.

[7] The rationale that is apparent from the submissions and evidence before me for the lodgement of the second application is that Mr Dain wishes to commence proceedings in the FMC against Mr Sam Bradley and Mr Robert Grant and apply to join those proceedings to SYG 456 of 2012 in order to invoke s.550 of the Act in relation to these individuals.

[8] I note that if I exercise my discretion pursuant to s.366 of the Act to grant the extension of time sought by Mr Dain, a conference pursuant to s.368 of the Act must be conducted and if the dispute is not resolved, pursuant to s.369 of the Act, FWA must issue a certificate to that effect. Only then is Mr Dain at liberty to make a court application.

[9] I must turn my mind to the merit of exercising my discretion to grant an extension of time to Mr Dain for the purpose of FWA dealing with his dispute with Mr Sam Bradley and Mr Robert Grant. It is clear from the evidence and submissions before me as to the reasons for the lodgement of the second application that the dispute is unlikely to be resolved in a conference conducted by FWA. Amongst other things, I have had regard to this in making my decision.

The relevant statutory framework

[10] An application for FWA to deal with a dispute under Part 3-1 - General Protections of the Act must, pursuant to s.366, be made within 60 days after the dismissal took effect or within such further period as FWA allows.

[11] Section 366 reads as follows:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[12] It is important to appreciate the purpose of limitation periods such as that contained in the Act. It is useful to refer to the decision of McHugh J in Brisbane South Regional Health Authority v Taylor 1 where he says:

“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates.”

and

“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.”

and

“In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it.”

and

“The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”

[13] To exercise my discretion in favour of the applicant under s.366(2) of the Act I must be satisfied that there are exceptional circumstances justifying the exercise of that discretion.

[14] The term ‘exceptional circumstances’ has been helpfully summarised by a recent Full Bench of FWA. In Nulty v Blue Star the Full Bench said:

“In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 2

and

“A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended”. 3

[15] In determining whether there are exceptional circumstances I must take into account all the circumstances, including the matters listed in s.366(2)(a)-(e) of the Act, apply them to the case presented by the applicant and weigh them up in coming to a conclusion.

Consideration

[16] I will deal with each of those matters in turn.

(a) the reason for the delay

[17] In essence Mr Dain submits that he only became aware that he would need to make an application citing Mr Sam Bradley and Mr Robert Grant as respondents to an application to FWA upon receipt of the decision of FM Raphael on 5 June 2012 and proceeded soon thereafter to make the application.

[18] He further submits that he was not aware until that date of the time limit for the making of such an application.

[19] He says his ignorance of the time limitation was because he was not “legally represented” nor did he see any reference to any time limitation when researching his rights following his dismissal in January 2012 or making his application in February 2012.

[20] Mr Bradley and Mr Grant contest this submission. They submit that from 20 March 2012 (3 days before the expiry of the time limit for lodging the second application) Mr Dain was on notice via correspondence from solicitors for the Mark Group about the problem with his application and he could have rectified it.

[21] Further, that the problem with his application was the subject of a directions hearing before the FMC on 26 March 2012 at which time FM Raphael questioned him about his legal representation and exhorted him to think very carefully. I agree with these submissions.

[22] I find that Mr Dain had the opportunity to make another application to FWA within time and that he chose not to do so.

[23] A relevant authority in this regard is Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Active Tree Services Pty Ltd 4. In this matter the Full Bench upheld the decision at first instance of Cloghan C to refuse an application for extension of time in circumstances that have some parallel with the circumstances of this case. The Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) had made an application pursuant to s.365 of the Act in respect of three members, a conference was held but the dispute was not resolved and a s.369 certificate was issued. The CEPU then made a general protections court application pursuant to s.539 of the Act to the FMC. Active Tree Services Pty Ltd successfully objected to the content of the application on the grounds that it contained contentions that had not been the subject of the dispute before FWA. The CEPU made a second application to FWA which contained the contentions struck out by the FMC. This application was out of time and an application for an extension of time was refused. In upholding the decision at first instance the Full Bench quoted from the decision at first instance as follows:

“With regard to the reason for the delay, I find no merit in the Applicant not being prepared to reconsider its position on or about 19 November 2010 in light of the Employer’s response to the Court Application. At that time, I find it clear and unambiguous that the Employer made it known to the CEPU that the principal reason why these Employees were chosen for redundancy related to the matrix, and that it would challenge the jurisdiction of the Federal Magistrates Court to hear and determine matters relating to the Matrix Allegations.” 5

[24] Mr Bradley and Mr Grant, citing amongst other things exchanges between Mr Dain and FM Raphael at the FMC directions hearing along with an affirmative statement in an email to Mr Selig refute Mr Dain’s contention that he was not legally represented. It is uncontested that he consulted an industrial barrister before the time of lodgement of the first application and engaged a solicitor to prepare his application to the FMC.

[25] Mr Dain says that for financial reasons he took piecemeal legal advice and while intending to have a lawyer in court, as expressed in the email, he could not afford one. He explains his comments before the FMC as arising from confusion and pressure.

[26] He says that whilst obtaining the piecemeal legal advice neither of the lawyers told him about the 60 day time limit for lodgement of applications.

[27] Mr Dain makes no case in relation to representational error and I am invited by Mr Shariff to draw a Jones v Dunkel inference. 6

[28] I do not go that far, however, I find it implausible that presented with the factual circumstances pertaining to Mr Dain, a barrister-at- law and a solicitor of the Supreme Court of NSW would fail to advise him as to the relevant time limitation.

[29] Furthermore, Mr Dain’s evidence in relation to these matters was unconvincing and gave the impression of having been rehearsed.

[30] In any event I find that it is not necessary to draw a firm conclusion on his credit in this regard as the authority on this question is that ignorance of the law is no excuse. Lack of knowledge of a time limitation has been rejected by this Tribunal as a ground for the exercise of the Tribunal’s discretion.

[31] In Anthony Inguanti v TRUenergy Gas Storage Pty Ltd the Full Bench said:

“A lack of knowledge of legal rights has generally not been regarded by FWA as sufficient for the tribunal to be satisfied as to exceptional circumstances for the purposes of s.394(1) of the FW Act.” 7

[32] In Purvi Sudani and Ashishkumar Sudani v Healthwise Management (AUST) Pty Ltd T/A Health Wise Pharmacies the Full Bench said:

“Mrs Sudani’s reason for the delay in making her application is that she is a relatively new immigrant to Australia from a country where such employee protection does not exist and she was unaware that she could make an application for relief in respect of the termination of her employment. We are not persuaded this is an acceptable explanation for her delay in making her application.” 8

[33] Section 366(2)(a) of the Act is in identical terms to s.394(3)(a) of the Act. In Nulty v Blue Star the Full Bench said:

“Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.” 9

[34] I adopt the reasoning of these cases. It follows that even if I were to accept Mr Dain’s evidence at its highest I am not satisfied that his reasons for delay in lodging the second application contribute positively to the exercise of my discretion in his favour.

(b) any action taken by the person to dispute the dismissal

[35] It is uncontested that Mr Dain disputed his dismissal as he sought out an industrial barrister (to obtain advice about a breach of contract action), researched his rights in the internet, lodged the first application and followed with an application to the FMC. Mr Bradley and Mr Grant were notice from at least 1 March 2012 that Mr Dain had a dispute with them. There is no contribution one way or the other to the exercise of my discretion in these circumstances.

(c) prejudice to the employer (including prejudice caused by the delay)

[36] Mr Dain submits that there is no prejudice to Mr Bradley or Mr Dain from this application beyond what ordinarily arises when an application is pursued. He says he has a legitimate claim against Mr Bradley and Mr Grant and is entitled to pursue it.

[37] Mr Bradley and Mr Grant on the other hand protest that they are required to expend time and money on a matter without merit; in circumstances where comments pertaining to the intention to cause legal costs have been made; where some claims have already been met and an offer has been made, and where a case is already on foot in the FMC that addresses the dispute the subject of the second application.

[38] In relation to costs Mr Dain says it follows from an application that there are costs and in any event this is a separate matter to be addressed in a cost argument subsequent to the case being heard and determined.

[39] It is relevant to the question of prejudice to the employer that the evidence shows that Mr Dain wrote to Mr Selig on 12 April 2012 and to Mr Grant on 20 June 2012 in emotive terms evincing an intention to cause the respondents to incur legal costs. In his email of 20 June to Mr Grant, Mr Dain wrote:

“I am confident that I can rack up another $35,000 in legal costs for Mark Group Australia” and “ i hope you are starting to understand how this game works ...even if you obtain a costs order against me ....in the jurisdiction that we are fighting this case ...you are only entitled to a scale of costs”

[40] This is explained by Ms Dinnen of counsel as follows:

“....The tribunal needs to bear in mind, in considering those communications, the evidence that my client has given about them; that he felt pressured from the legal team. He wanted to identify issues and to address things with the manager without the legal team, because he didn’t think the lawyers were going to pass on his information. He has obviously provided that communication without any legal assistance or legal advice because, just on the face of it, it is obvious that no legal advice has been given in the provision of that letter.

It is only relevant, in my submission, to the question of costs if the applicant loses this application for jurisdiction. It is not relevant to whether there are exceptional circumstances for the granting of leave. There’s nothing in the Act that precludes the granting of leave in circumstances where the respondent believes that proceedings are brought vexaciously.” 10

[41] I disagree. Whilst I conclude that Mr Dain does want to have his day in court with Mr Bradley and Mr Grant, I regard his conduct as reprehensible. This is not an irrelevant factor in drawing conclusions about the prejudice that would be visited upon the employer should I grant his application for an extension of time.

[42] The evidence before me shows that Mr Dain’s claim for monies arising from his employment (amounting to $4,752) has been paid and his claim for a payment of $45,338 for six months pay and commissions and $15,000 for emotional stress have been met with an unconditional offer of $10,000 that has been rejected. This, in the light of my assessment of the merit of his case considered below, is also not irrelevant to a consideration of the financial prejudice likely to be suffered by the employer should I grant the extension of time.

[43] I find that the employer would be prejudiced and this factor weighs against a finding in favour of Mr Dain.

(d) the merits of the application

[44] Mr Dain’s submission is best summed up in the words of his counsel in her reply. She says:

“The merits of the application in relation to the first respondent, I don’t think are in question, because that matter has already been conciliated and sent on to the Federal Magistrates Court. What we’re talking about here in relation to the merits, are the merits as against the second and third respondents. The evidence of their involvement, in my submission, as provided in the affidavit of the applicant and as provided in his application, identifies that there is a prima facie case that they were involved, or accessorily involved, in the contraventions perpetrated by the first respondent.

Now, on the actual final determination of the proceedings, there may not be sufficient evidence to warrant a finding of their accessorial involvement or accessorial knowledge, but that has to wait until a final hearing and the full extent of the evidence to be put on in relation those issues before such a determination can be made. All that is required here is a prima facie case that they were involved. The rest of the issues are determined at a later stage.” 11

[45] The affidavits of Mr Dain reveal the following in relation to his engagement, the course of his 7 weeks of employment and his dismissal:

he was employed on 5 December 2011 in the position of a telemarketer on a casual basis;

his role was to contact potential customers of Mark Group by phone and make appointments for Technical Solar Advisors (TSAs) to visit and quote for the sale of solar power roof panels;

his remuneration was salary plus commission with the commission being related to both the appointments he made and the conversation by the TSAs of quotes into sales;

during the course of his 7 weeks of employment he claims that the commission structure he was offered at the outset was changed unacceptably, the TSAs were not performing adequately and on some nights he was constrained in the number of appointments he could make;

he claims he brought this to the attention of Mr Grant and Mr Bradley;

he claims his dismissal occurred because of this; and

he submits that this conduct constitutes conduct prohibited by Part 3-1- General Protections of the Act. \

[46] The proceedings before me did not address the merits of Mr Dain’s case save for the outline of the circumstances in his two applications and the content of his affidavits.

[47] Indeed as outlined above, Ms Dinnen submitted that it was not necessary to say more than was in Mr Dain’s applications and affidavits and that a prima facie case had been made out in relation to the second application sufficient to enliven s.550 of the Act.

[48] Mr Shariff for Mr Bradley and Mr Grant submitted that there has to be more evidence relevant to the second application. He submitted that to invoke s.550 of the Act there has to be accessorial knowledge and accessorial conduct and Mr Dain needs to have at least suggested how it is that Mr Bradley and Mr Grant attract the provisions of s.550. Mr Shariff further submitted that s.550 is not a deeming provision. Therefore, it does not follow that because a person or persons held office in a company at the time of an alleged offence that they attract the provisions of s.550. I agree.

[49] The decision of Cameron FM in Fair Work Ombudsman v Centennial Financial Services & Ors 12 is instructive. FM Cameron is considering s.728(2)(a) of the Workplace Relations Act1996 that is the forerunner to s.550 of the current Act and is in substantially the same terms.

[50] At paragraph 226 he says:

“In Australian Competition & Consumer Commission v IMB Group Pty Ltd[2003] FCAFC 17, speaking of s.728’s equivalent provision in the Trade Practices Act 1974, the Full Court of the Federal Court said:

● For a person to be involved in a contravention within the meaning of s.75B(1)(c) of the Act, a person must be an intentional participant in the contravention, the necessary intent being based upon knowledge of the essential elements of the contravention: see Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 at 670. Thus, while it is not necessary to establish that the individual Respondents had knowledge that there was a contravention of a provision of Pt V of the Act, it is necessary to demonstrate that each individual Respondent had knowledge of each of the essential elements of the contravention.

● In order to establish whether any of the individual Respondents was involved in a contravention, it is necessary to examine the state of mind of each of them separately in relation to each alleged contravention. ...

● It is not necessary to establish any subjective element in relation to a contravention of Pt V of the Act. A contravention may be committed unintentionally. That is to say, a person may contravene a provision of Pt V even though that person does not have knowledge of all of the essential elements that constitute the contravention. However, before any accessorial liability will arise, it is necessary to establish the subjective element of knowledge of each of the essential elements of the contravention. That knowledge may be constructive in the sense that it may be possible to show wilful blindness in relation to the elements of a contravention. However, absent a finding of wilful blindness, it is necessary to establish actual knowledge on the part of a person to whom it is sought to sheet home accessorial liability in respect of a contravention of Pt V. (at [133]-[135]).” 13

[51] This is significant because the degree of merit in the second application is a matter I need to take into consideration when deciding whether to grant an extension of time. The merit of an application is rarely a binary proposition - none or complete, and my finding can only go to the decision I have to make, not the outcome of the application itself. Greater merit weighs in favour of an extension of time and lesser merit weighs against an extension of time.

[52] Mr Dain’s first application is not without arguable merit, as commented upon by FM Raphael in his decision 14 although he will have to overcome the hurdle of whether he has a workplace right at all, given it would appear that he is not covered by a workplace instrument. Mr Shariff, who is also acting for Mark Group in the first application, has indicated his intention to raise the authority of Barnett v Territory Insurance Office15 where it was held that a contract of employment is not a workplace instrument for the purposes of s.341 of the Act. If that hurdle can be overcome the onus of proof reverses and passes to the Mark Group to show that their decision to dismiss Mr Dain was not at all related to his complaints to management about his commission structure and remuneration potential. Mr Shariff submitted that Mark Group believed Mr Dain had abandoned his employment and evidence in support of that contention was the existence of an email from Mr Dain indicating that he would not undertake any further appointment work for the Mark Group until his concerns were addressed.16

[53] However all of this goes to the merit of the first application which is not before me. I have to form a view about the merit of the second application and that can only mean I have to be persuaded that there is evidence to support an allegation that accessorial knowledge and conduct was present in Mr Bradley and Mr Grant. I cannot do so on the material before me.

[54] Decisions of FWA provide guidance on the application of merit to the determination of requests for an extension of time. In a line of authority arising from the decision by Drake SDP at first instance in Edward George Warrell v Bacto Laboratories Pty Ltd 17 the merit of the application was a significant factor in the refusal of the extension of time. Drake SDP’s decision was confirmed by two subsequent Full Bench decisions.18

[55] It follows that I am not satisfied that the merit of Mr Dain’s second application contributes positively to the exercise of my discretion in his favour.

e) fairness as between the person and other persons in a like position

[56] A comparison between Mr Dain and other persons is not relevant in this matter. It has not been submitted by either party that there are other persons in a like position to Mr Dain. Comparative fairness was addressed in Ballarat Truck Centre Pty Ltd v Melissa Kerr where the Full Bench said:

“It appears to be clear that s.366(2)(e) of the Act should be limited to a comparison of persons who have also had their employment terminated and are thus capable of lodging a s.365 application. A time limit for the lodgement of an application under Part 3-1 of the Act is only provided for with respect to s.365 applications. The Act imposes no time constraints on other applications available under Part 3-1. It follows that the consideration stipulated in s.366(2)(e) of the Act requires a comparison between people who are capable of bringing a s.365 application. Further, as Mr Follett submitted, if s.366(2)(e) allowed for a comparison to a person who had not been dismissed, then, as the Act imposes no time constraints on other applications under Part 3-1, that comparison would always produce comparative unfairness and it could hardly be seen to be indicative of whether there are exceptional circumstances for which a further period of time could be granted.” 19

[57] There is no contribution one way or the other to the exercise of my discretion in his favour from these circumstances.

Other circumstances

[58] I have also had regard to the fact that the applicant is not left without recourse to pursue his substantive case. The first application is listed in the FMC. He is not going to be deprived of his right to run his case if I decline his application for an extension of time.

Conclusion

[59] I have weighed Mr Dain’s circumstances, including in relation to each of the matters contained in s.366(2)(a)–(e) carefully and on balance I am not satisfied that there are exceptional circumstances justifying the exercise of discretion to grant him an extension of time. The application is dismissed.

Costs

[60] In their written submissions Mr Bradley and Mr Grant indicate that they wish to be heard on the question of costs. If they wish to pursue this matter they are to advise my Chambers and Mr Dain by 4 September 2012. In such case, written submissions are to be provided by 11 September 2012 with submissions in reply to be provided by Mr Dain by 25 September 2012. Any such application will be determined on the papers.

DEPUTY PRESIDENT

Appearances:

D Dinnen, of Counsel, with S Boatswain, Eakin McCaffery Cox, for Mr Matt Dain

Y Shariff, of Counsel, with G Selig, Mark Diamond & Associates, for Mr Sam Bradley and Mr Robert Grant

Hearing details:

2012.
Sydney:
7 August.

1 Brisbane South Regional Health Authority v Taylor (1996) CLR 541

2 [2011] FWAFB 975 at [13]

3 Ibid at [15]

4 [2011] FWAFB 8446

5 [2011] FWA 5418 at [45]

6 Jones v Dunkel 101 CLR 298