Miss Madeleine Elliott v FT Consulting Pty Ltd
[2023] FWC 1648
•2 AUGUST 2023
| [2023] FWC 1648 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Miss Madeleine Elliott
v
FT Consulting Pty Ltd
(U2023/1708)
| DEPUTY PRESIDENT CROSS | SYDNEY, 2 AUGUST 2023 |
Application for an unfair dismissal remedy – not a specified task contract – valid reason – dismissed pursuant to the terms of the employment contract – dismissal not harsh, unjust or unreasonable - application dismissed
Miss Madeleine Elliott (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy (the Application) in relation to her dismissal from employment with FT Consulting Pty Ltd (the Respondent). The Application was lodged with the Commission on 23 February 2023.
I conducted a directions hearing in this matter on 15 May 2023. At the directions hearing, directions were issued for the filing of materials by the parties (the Directions), and the matter was set down for an in-person hearing on 7 July 2023. The Directions were subsequently varied.
The parties complied with the Directions as varied. In particular:
(a) On 29 May 2023, the Applicant filed an Applicant’s Outline of Submissions and a witness statement;
(b) On 19 June 2023, the Respondent filed an Outline of Submissions and a statement of Ms Florrie Tseng, the Director of the Respondent and the mother of the children cared for by the Applicant; and
(c) On 30 June 2023, the Applicant filed an Applicant’s Outline of Submissions in Reply.
The Application was heard on 7 July 2023 (the Hearing). At the commencement of the Hearing the Applicant asserted that a different entity, other than the Respondent, was her “functional employer”.[1] That different entity was a law firm in which Ms Tseng’s husband was involved. The Applicant raised the issue of correct employer as she was concerned about the existence of the Small Business Fair Dismissal Code.[2]
Up until the Hearing the sole entity identified as the Respondent was FT Consulting Pty Ltd. That entity was the employer party to the Applicant’s Employment Contract and the entity who made all payments to the Applicant. Ultimately the Applicant rejected the opportunity to discontinue proceedings against the Respondent and proceed against the different entity, and the matter proceeded against the Respondent.
Background Facts
The Applicant was first employed as a nanny on a casual basis from around March 2021 to June 2021. The Applicant initially worked 2-3 days a week. Her hourly rate was $30.
On or around April 2021, the Respondent offered the Applicant a full-time position, on the condition that it would cease once the Respondents children begin childcare. The Applicant asked for a salary package of $69,000.00.
On the 7 July 2021, the Respondent and the Applicant entered into an employment contract (‘the Contract’). The Contract included the following terms:
‘Employment dates
Your start date will be 05.07.2021 and ends when the child/children commences childcare. You will be given at least two week’s notice and a new employment contract is to be executed on mutually agreed terms.’
[Emphasis added]
Pay and allowances
Pay
Your pay will be $69,000 per annum, inclusive of superannuation
…
Ending employment
Notice
Dismissal
You are entitled to the following minimum notice periods (or payment in lieu of notice), if we end your employment. This does not apply if we end your employment for serious misconduct.
| Continuous employment with us | Minimum notice period |
| 1 year or less | 1 week |
| More than 1 year to 3 years | 2 weeks |
| More than 3 years to 5 years | 3 weeks |
| More than 5 years | 4 weeks |
You may be entitled to a longer minimum notice period under your award.
You will get an extra week of notice if you're older than 45 years and have worked for us for at least 2 years.
Resignation
You must give us the following minimum notice periods if you resign:
| Continuous employment with us | Minimum notice period |
| 1 year or less | 4 weeks |
| More than 1 year to 3 years | 6 weeks |
| More than 3 years to 5 years | 8 weeks |
| More than 5 years | 12 weeks |
The Respondent asserted that the salary package of $69,000 inclusive of superannuation (or $62,727.27 plus superannuation) was $224.79 above the Award minimum wage per week, equivalent to $11,689.27 above the minimum wage per year for Level 4 relevant Award.
The duties of the Applicant’s position were detailed in the Contract as follows:
‘Duties
You are required to perform the duties described in the attached position description.
We may also assign you other duties, where reasonable for your position, training and experience’
.
The Applicant was responsible for the following:
1.Providing support to Tseng-Ling household
2.Taking care of the child/children’s overall daily needs
3.Creating a safe and stimulating environment for the children
4.Bathing and dressing
5.Changing diapers and potty training, if age-appropriate
6.Children’s laundry
7.Planning meals, preparing food, and/or feeding the children
8.Indoor and outdoor play
9.Educational activities and crafts
10.Reading to the children
11.Organizing bedrooms/toys
12.Maintaining logs for the parents
13.Light housekeeping
14.Alert the parents immediately if there are any issues at home
15.Pet care
16.Transporting and collecting children to childcare or playdates if necessary
17.Administering medicine with parents’ consent, if necessary
18.Day to Day ad hoc tasks
19.First Aid and CPR certifications required
20.Must have a clean driver’s license and reliable transportation
On or around July 2022, the Applicant requested a pay rise. After receiving a Deed of Variation (‘the Deed’) on 6 August 2022, and considering that Deed overnight, on 7 August 2022, the Applicant and the Respondent executed the Deed outlining her pay increase. The Deed of Variation was dated 22 July 2022 and it stipulated the following:
RECITALS
A. The Employer has agreed to utilize the services of the employee and the employee has agreed to provide those services to the employer in the business on the terms set out in this the employment contract entered by the parties dated 7 July 2021 (“Employment Contract”)
THE PARTIES AGREE
1. VARIATION & AMENDMENT TO DEED OF RELEASE AND UNDERTAKING
The employer and employee collectively acknowledge and agree to (despite anything contrary to the Employment Contract) revise the Employment Contract to the following as at 1 August 2022:
Pay: Your pay will be $67, 118.20 plus Superannuation per annum (inclusive of any overtime)
Hours of Work: Your normal hours are 9am-5pm, Mondays to Fridays and it may be varied from time to time as mutually agreed. It is currently mutually agreed that you will be working 38 hours per week and 40 hours a week at least once a month. You may also be required to work reasonable additional hours to perform your duties.
In around December 2022, the Applicant asked for a further pay rise. She requested $80,000 per annum and 4 days per week of work to suit her University schedule. The Applicant advised that she intended on leaving the position in August 2023, when she anticipated obtaining employment using her University qualifications.
Ms Tseng’s eldest child had been enrolled and attending childcare since July 2022, and she had pre-registered her youngest son to attend the childcare centre around October 2022. Previously the childcare centre’s policy was only to accept children when they had turned 12 months old. Ms Tseng did not expect her youngest son to be accepted into childcare but unexpectedly in January 2023, Ms Tseng’s youngest son was accepted into childcare.
On 13 January 2023, Ms Tseng first told the Applicant her youngest son had been accepted into childcare. Ms Tseng and the Applicant then began discussing what a role going forward could look like for the Applicant.[3] Ms Tseng noted that the Applicant had requested $80,000 in December 2022,[4] but advised that she could not afford to pay that amount. The discussion traversed casual/part time possibilities.
The Applicant received her University timetable on 25 January 2023.
The next time that the Applicant and Ms Tseng discussed possible future terms of engagement was 27 January 2023, though the Applicant was kept posted every day as to certain things regarding her future employment.[5] The Applicant was on pre-approved annual leave from 27 January 2023 to 17 February 2023.
In the meeting of 27 January 2023, which was up to two hours long[6] and tense, the Applicant sought what was described as a “redundancy letter” before she could commit to new terms.[7] The Applicant thought she would receive redundancy pay if she was eligible for it.[8]
On 3 February 2023, the Respondent sent the Applicant a letter terminating her employment by registered post and email. That letter was as follows:
Dear Madeleine,
Termination of your employment
I am writing to you about the termination of your employment with FT Consulting Pty Ltd.
Under your fixed term employment contract dated 07 July 2021, your employment ends when the children commence childcare.
I informed you several occasions throughout 2022 regarding the children’s enrolment and we discussed how these changes may affect us, but more importantly, the likely effect on you, including (but not limited to) to working hours.
To reduce the effects of the change, we discussed on 13 January 2023, an alternate arrangement of increasing your hourly rate of about 32 percent but reducing the days when the children are attending school. We clarified your accrued entitlements under the awards in the full-time position remains our legal obligation.
On 23rd January 2023, I wrote to you via WhatsApp, discussing the same but you expressed that the part-time position did not suit you, even with the offer to increase your hourly rate. Our discussion continued up until the 27 January 2023 which you requested that I present you in-person or via registered mail, a notice of termination (redundancy).
On consulting with the Fair Work Commission and at your request, this letter serves as formal notification. Based on your length of service, your notice period is 2 weeks. Therefore your employment will end on 17th February 2023.
You are allowed time off without loss of pay, up to 1 day to seek other employment. You will also be paid accrued entitlements and any outstanding pay, up to and including your last day of employment, this includes superannuation.
If you have been paid annual leave in advance, any amount of annual leave still owing will be deducted from your final pay.
You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at termination payments may give rise to waiting periods for any applicable Centrelink payments. If you need to lodge a claim for payment you should contact Centrelink immediately to find out if there is a waiting period.
I would have preferred to give this to you in person, but as you're currently travelling interstate, I’ve taken the liberty of providing you with a copy via email, as well as accommodating to your request that the original be sent via registered mail. Please feel free to contact me should you have any questions.
Yours sincerely.
Florrie TsengDirector
The Respondent completed a Small Business Fair Dismissal Code document, though it appeared that the document was not completed until around 16 March 2023, when the Form F3 Employer’s Response was completed.[9]
The Applicant asserted that she had not been paid for overtime and annual leave on termination, or correct superannuation. The Respondent noted that it had provided the Applicant’s payslips to her but had not received a calculation of alleged discrepancies. The Applicant nonetheless understood that the issues of alleged underpayments were not before the Commission in these proceedings.[10]
Applicants Submissions
The Applicant summarised her case regarding the unfairness of her dismissal in her submissions at the conclusion of the Hearing as follows:[11]
[Ms Tseng] did not comply with any requirements to consult about the dismissal in the Modern Award Enterprise Agreement or other industrial instrument applied to my employment. [Ms Tseng] did not know what award I was covered by until I told her. [Ms Tseng] never spoke of her legal obligations as my employer outside of ensuring to pay annual leave which still has 76.7 hours outstanding.
…
There was no valid reason for the dismissal related to the employee's capacity or conduct. [Ms Tseng] did not ever express dissatisfaction with my performance to the effect of needing to improve or otherwise be dismissed, and there was no evidence of conduct, of any misconduct in my performance.
I was not previously warned about my performance being unsatisfactory until after the dismissal. …
So I wasn't effectively notified of the reason or given opportunity to respond and I wasn't given any reason why, by [Ms Tseng], as to why she chose to enrol her children in day care instead of continuing with sole person at home care with me.
I wasn't offered a support person during any of these discussions …
Respondents Submissions
The Respondent also summarised its case at the conclusion of the hearing as follows:[12]
So for close to two years [the Applicant] has appeared to be really happy. … Things works out really well for her with her Uni and with what she's doing, and at the time that she requested a pay rise in July 2021 she continues to say the same.
…
Fast forward to December 2022. On the last day before we all had the Christmas holiday she basically came up to me and said that she would like to get another pay rise to 80,000. So this is just six months after she got a pay rise, and she also informed me that she can only work for four days from, I think it was March to June, but as of now she cannot tell me what days that she can work, and also, at the same time, she would like to finish up her employment in August because that's when she said she's going to find a real job. That's what she said.
So there's a lot of things about - I wanted to sort of comment back on what she just said, but I'm not going to. Then, so obviously during the time - I did say that I would come back as soon as possible, but I did not come back with a date. I did say that because obviously I have got to work out how much and what I have got to pay her. What it will look like in August with her payout. I have to take into consideration of that, and then working four days, how would that work, and what if it falls on the day that one of my child goes to day care.
My second child did not get an offer until January and the reason why I did not discuss with [the Applicant] is because the school would not accept unless he was past 12 months - and it's actually listed on the website - but actually accepted him a lot earlier, which is what I wasn't expecting.
…
So then when I realised that she wasn't committing to the casual days, that also gave me a fright because I wasn't sure who was going to be taking care of the kids when they are not going to day care.
So, hence, I was having that conversation on the 27th so we can, okay, decide what was going to happen then, but I think it took a different direction on - focusing on the termination and also the redundancy. So, to me, that felt like she was trying to get a redundancy pay out of me because she also made a comment about that I was meant to pay her up to August this year.
CONSIDERATION
Preliminary Findings
While there were no jurisdictional objections specifically raised by the Respondent to the Applicant’s application being determined by the Commission, I note that the background facts raise issues of whether the Applicant was dismissed at the initiative of the employer or whether the Applicant was employed under a contract for a specified task and terminated at the completion of that task, and whether the dismissal involved the Small Business Fair Dismissal Code.
I am satisfied, however, for the reasons outlined below, that:
(a) the Applicant was dismissed at the initiative of the employer (ss 385(a) 386(1)(a));
(b) her unfair dismissal application was lodged within the 21 day statutory time limitation found at s 394(2) of the Act;
(c) the Applicant is a person protected from unfair dismissal in that:
(i) she had completed the minimum employment period set out in ss 382 and 383 of the Act; and
(ii) her salary was below the high income threshold;
(d) her dismissal was not a case of genuine redundancy (s.385(d)); and
(e) her dismissal was not a case involving the Small Business Fair Dismissal Code (s.385(c)).
Dismissal or Specified Task Contract?
In Kirsten Dale v Hatch Pty Ltd,[13] the Full Bench of the Commission considered what constituted a contract of employment for a specified task. It held:
[8] The consideration of Ms Dale’s appeal must start with determining the meaning of the expression “contract of employment … for a specified task” in s.386(2)(a). The ordinary meaning of the word “task” is, as stated in the Decision, a piece of work to be performed or undertaken. That was the meaning assigned to the term in the decision of a Full Bench of the Australian Industrial Relations Commission (AIRC) in Qantas Airways Limited v Fetz. It must be the task of the employee, not the employer, as was pointed out by Wilcox CJ in Drury v BHP Refractories Pty Ltd in relation to the same expression then appearing in reg.30B(1)(b) of the Industrial Relations Regulations:
“The words "for a specified task" qualify the words "contract of employment". The contract of employment must be for a specified task; it must be a contract under which the employee is to carry out a specified task. The words "for a specified task" have nothing to do with the employer's task, or project. This seems clear as a matter of grammar and it makes sense in policy terms. One can understand a view that the protections provided by Division 3 of Part V1A should not be available to people who undertake only a specified task. Especially after the task is completed, it would be anomalous to restrict the employer's right to terminate the contract of employment. Bearing in mind that many projects undertaken by employers continue for many years, while employees come and go, it would be equally anomalous to exclude relief under Part V1A simply because the employee was engaged in connection with a particular project.”
[9] The task must be “specified” - that is, identified in definite terms. In a written contract of employment, it could usually be expected that the task would be identified in express words, although it is not impossible to conceive of a case whereby the task might be specified as a matter of necessary implication. Further, the relevant contract of employment must be “for” the specified task, meaning that it has been entered into for the purpose of the performance and completion of that task.
[10] A critical element in this part of the exception in s.386(2)(a) is, we consider, that the task be sufficiently definite in its nature and delineation such that identification of when the task is completed is not a matter of doubt or speculation or contingency but is clear and predictable. We draw that inference from the fact that s.386(2)(a) requires the termination of employment to occur at the end of the completion of the task, thus requiring it to be identifiable with certainty. The context supports that inference in that the other exceptions contained in s.386(2)(a) - a contract for a specified period terminating at the end of that period, or for the duration of a specified season terminating at the end of the season - likewise involve the termination of employment occurring at an identifiable time or upon an identifiable event.
[Footnotes omitted]
The Contract clearly provides the start date and end date and specifies the end of the contract will occur when the child/children commence childcare. I do not consider, however, that the Contract was for a specified term because:
(a) It foreshadows continued employment, albeit on “mutually agreed terms”; and
(b) The Contract contains a broad and unconditional right of termination under the “Ending Employment” term.[14]
Small Business Fair Dismissal Code?
There are two types of dismissal to which the Small Business Fair Dismissal Code (the Code) applies, being summary dismissal for misconduct and dismissal regarding the capacity or competency to perform their job. The Applicant’s case falls outside those bases for dismissal covered by the Code, and so her dismissal could not involve the Code.
Was the Dismissal Harsh, Unjust or Unreasonable?
The only outstanding issue is whether the Applicant’s dismissal was ‘harsh, unjust or unreasonable,’ and therefore an unfair dismissal. To this end, I must direct attention to s.387 of the Act, dealing with the matters to be taken into account by the Commission in determining whether the dismissal was unfair. It is trite to observe that each of the matters must be considered and a finding made on each of them, including whether they are relevant or not.
Was the Dismissal Harsh, Unjust or Unreasonable?
Section 387 of the Act identifies the matters that the Commission must take into account in deciding whether a dismissal was “harsh, unjust or unreasonable:”
(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
(b) Whether the person was notified of that reason;
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
(g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) Any other matters that the FWC considers relevant.
Whether there was a valid reason for the applicant’s dismissal – s 387(a)
In Rode v Burwood Mitsubishi,[15] a Full Bench of the then Australian Industrial Relations Commission discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and referring to Selvachandran v Peteron Plastics Pty Ltd[16] (Selvachandran). The Full Bench found:
[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).
[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.
The Applicant is correct in her assertion that there was no valid reason for her dismissal related to capacity or conduct. While each party was critical of the conduct of the other in the proceedings, the Respondent did not express dissatisfaction with the Applicant’s performance while she was employed, and it was not a reason for the dismissal.
The reason for the Applicant’s dismissal was clearly foreshadowed in the Contract.
Your start date will be 05.07.2021 and ends when the child/children commences childcare. You will be given at least two week’s notice and a new employment contract is to be executed on mutually agreed terms.’
[Emphasis added]
It was always the intention of the parties that the employment would end when the children commenced daycare. In the Application, at Question 3.1, the Applicant stated:
My employer secretly enrolled her children in daycare 3 or more days a week effective immediately, which meant there was no longer full-time work for me as their nanny. She says I was dismissed for asking for a raise.
The Applicant clearly understood that, as was foreshadowed in the Contract, the children commencing daycare meant there was no full-time work for her. I reject the suggestion that Ms Tseng “secretly” enrolled her children and accept that the acceptance of her second son into childcare at less than 12 months of age came as a surprise to her. Once aware of that accepted enrolment Ms Tseng promptly advised the Applicant.
I find that the Respondent had a valid reason to dismiss the Applicant, being the entirely unremarkable event foreshadowed 18 months prior and included in the Contract, of the Respondent’s children attending childcare. I further reject any suggestion that any fault lies with the Respondent for not agreeing to terms for further employment. It is clear that the Applicant strenuously resisted negotiation until she received a “redundancy letter”, and the Applicant never moved from her position that she should be paid $80,000, a significant pay increase, and only have to work four days a week. No terms for further employment could be mutually agreed.
Section 387(b) – Notification of the reason for the dismissal
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, in plain and clear terms. In Crozier v Palazzo Corporation Pty Ltd the Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:[17]
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
While the Respondent did not provide the Applicant with an opportunity to respond to the reason for dismissal before sending the termination letter, that failure must be viewed in light of the facts that:
(a) The Applicant was absent from the workplace on annual leave;
(b) There had been numerous incidences of the Applicant and Ms Tseng discussing the change in circumstances regarding daycare and the consequences of that change; and
(c) The Contract had already recorded the possible reason for termination and the facts that would substantiate that reason. It was clearly not a surprise to the Applicant.
The Applicant contended Ms Tseng did not comply with any requirements to consult about the dismissal in the industrial instrument that applied to her employment, though she failed to identify the instrument to which she was referring. Nonetheless, I note that between 13 and 27 January there was constant communication between the parties traversing the Applicant’s possible future terms of employment and the terms upon which employment could continue. I do not consider that there was any failure to consult. Rather, there was constant and daily consultation.
Although the Respondent did not provide the Applicant with an opportunity to respond to the reason for dismissal before sending the termination letter, for the above reasons I do not consider that any weight should be accorded to that factor.
Section 387(c) – Opportunity to respond to any reason
The Applicant was not terminated for capacity or conduct, and this consideration is not a relevant to the circumstances.
Section 387(d) – Unreasonable refusal by the employer of a support person
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person. As no request for the presence of a support person was made, this is not a consideration that can be accorded any weight.
Section 387(e) – Unsatisfactory performance
The dismissal was not for unsatisfactory performance, and this is not a relevant consideration.
Sections 387(f) and 387(g) – The size of the employer’s enterprise/human resources
The Respondent is a very small employer, whose only employee was the Applicant. The Respondent did not have access to dedicated human resource managers.
There is no evidence before me, and nor did either party contend, that the Respondent’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.
Section 387(h) – Other relevant matters
I have noted and taken account of the submissions of both parties but consider that no issues relevant to my consideration arise under this factor.
Conclusion
I have made findings in relation to all matters specified in s 387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable, and therefore an unfair dismissal.
I have found the Respondent had valid reasons for the dismissal of the Applicant. While I found the Respondent did not provide the Applicant with an opportunity to respond to the reason for dismissal before sending the termination letter, I note that I have accorded no weight to that factor due to the unusual circumstances of this matter. Further, no other factors were accorded weight.
I therefore do not find that the dismissal of the Applicant was harsh, unjust or unreasonable.
The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Elliott, M (the Applicant)
Tseng, F (the Respondent)
Hearing details:
10:00AM on 7 July 2023.
Sydney.
In-person.
[1] Transcript PN 55.
[2] Transcript PN 80.
[3] Transcript PN 206.
[4] Transcript PN 213.
[5] Transcript PN 220.
[6] Transcript PN 275.
[7] Transcript PN 233, 237, 252, 266, 273, 281, 284 and 288.
[8] Transcript PN 288.
[9] Transcript PN 494.
[10] Transcript PN 302 to 309.
[11] Transcript PN 554.
[12] Transcript PN 580, 584 to 608.
[13] [2016] FWCFB 922.
[14] See Kirsten Dale v Hatch Pty Ltd [2016] FWCFB 922 at [22] to [24].
[15] Print R4471, at [18] and [19].
[16] (1995) 62 IR 371
[17] (2000) 98 IR 137, at [73].
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