Mr George Tsolacis v St Vincent's Hospital (Melbourne) Limited
[2013] FWC 5221
•31 JULY 2013
| [2013] FWC 5221 [Note: An appeal pursuant to s.604 (C2013/5207) was lodged against this decision - refer to Full Bench decision dated 22 October 2013 [[2013] FWCFB 7040] for result of appeal.] |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr George Tsolacis
v
St Vincent's Hospital (Melbourne) Limited
(U2013/7229)
| COMMISSIONER JOHNS | MELBOURNE, 31 JULY 2013 |
Whether a person was an employee or independent contractor.
Introduction
[1] On 6 May 2013 Mr George Tsolacis (Applicant) made an application under section 394 of the Fair Work Act 2013 (Act) for an unfair dismissal remedy (Application). The respondent is St Vincent’s Hospital (Melbourne) Ltd (Respondent).
[2] A person is only protected from unfair dismissal if “the person is an employee...”. 1
[3] The Respondent lodged a jurisdictional objection to the Application. The Respondent asserted that the Applicant was not an employee, but rather, an independent contractor.
[4] The Applicant rejected the jurisdictional argument. The Applicant said he was a casual employee employed on a regular and systematic basis for more than 6 months and that he had a reasonable expectation of continuing employment with the Respondent.
[5] The Fair Work Commission (Commission) must decide whether the Applicant is protected from unfair dismissal before considering the merits of the Application. 2
[6] The hearing of the jurisdictional objection occurred on 28 June 2013.
[7] At the hearing:
- the Applicant represented himself; and
- the Respondent:
o was represented by Ruth Hutchison, the Respondent’s IR/ER Manager; and
o tendered a witness statement by John Rodriguez (Exhibit “R2”), an engineer employed by the Respondent.
[8] As both advocates were unfamiliar with conducting matters before the Commission it was necessary for the Commission to take a more inquisitorial role than it would otherwise.
Decision
[9] At the conclusion of the hearing the Commission found that the Applicant was not an employee of the Respondent.
[10] It followed that the Applicant was not a person protected from unfair dismissal and his Application was dismissed for want of jurisdiction.
[11] In deciding the matter the Commissioner said:
The commission will issue a decision now. Formal reasons for my decision will follow in time. On 6 May 2013, Mr George Tsolacis made an application under section 394 of the Fair Work Act [2009] for unfair dismissal remedy. The respondent is St Vincent's Hospital (Melbourne) Ltd. A person is only protected from unfair dismissal if the person is an employee. The respondent has lodged a jurisdictional objection to the application. The respondent asserts that the applicant was not an employee, but rather an independent contractor. The applicant rejects the jurisdictional argument. The applicant says he is a casual employee employed on a regular and systematic basis for more than six months and that he had a reasonable expectation of continuing employment with the respondent.
The Fair Work Commission must decide whether the applicant is protected from unfair dismissal before considering the merits of the application. It is appropriate to record at this point in the present matter there is no written agreement between the parties describing the relationship as either a contractor or employee. Had the parties attached a label to their relationship in a written form, it would have been an important consideration, although not finally determinative of the issue. In this regard, the Commission has particular note of the rather laissez faire way in which Mr Rodriguez seems to have run his department.
The applicant has very usefully referred the Commission to a number of authorities, including the Roy Morgan matter, On Call Interpreters and Vabu. There are other relevant authorities which are well established. In deciding this matter, the Commission has had regard to them and the evidence which has been presented by the parties. In particular, the Commission adopts the principles espoused by the Full Bench in the French Accent decision and applies them to the facts in this case.
As the applicant has correctly identified, the exercise to be undertaken requires the Commission to look at the real substance of the relationship in question and to determine whether, considering the totality of the relationship, the degree of [independence] overall is sufficient to establish that the applicant was working on his own behalf or acting as a servant of the respondent. We need to view as a practical matter whether the applicant was running his own business or enterprise. We need to establish whether viewed again, as a practical matter, the applicant was or was not running his own business or enterprise with independence in the conduct of his operations as distinct from operating as a representative of the respondent with little or no independence in the conduct of his operations.
I have had regard to the evidence before me and, in particular, the exercise to be performed by [the Commission] having regard to paragraph 30 in the French Accent decision which itself had regard to the Brodribb decision and, in particular, the Vabu decision and I thank the applicant for drawing that case to my attention. Not all of the indicia are relevant in this matter nor, as the Full Bench stated in the French Accent matter, is the list exhaustive. However, I have had regard to all of them and the evidence and [they inform my] reasons for decision, I will explain which matters weighed most significantly in my decision-making.
It is the Commission's view that the indicia in this matter points in different directions at [different] times. Sometimes they point to the applicant being an employee, sometimes they point to the applicant being an independent contractor, but this is not a mechanical exercise of running through items on a checklist to see whether they are present in, or absent from, a given situation. The indicia, as I have already said, are not exhaustive nor are there rules as to the weighing to be given to the indicia in the decision-making process, but I put particular weight in this matter on the invoicing that was arranged by the applicant at his instigation and was the manner in which he sought to be paid.
The indicia which I have had regard to give a good view of the relationship between the respondent and the applicant. In this case, the balance is not a fine one. It is distinctly in one direction. Viewed as a practical matter, the Commission is satisfied that the applicant was running his own business. It follows that I find that the applicant was not an employee of the respondent. In this decision, I have found that the applicant was not an employee of the respondent. It follows that the applicant is not a person protected from unfair dismissal and his application is dismissed for want of jurisdiction. An order to this effect and full reasons for my decision will be issued separately.
[12] The Commission now provides reasons for the decision.
The Evidence
[13] Ms Hutchison, Mr Rodriguez and the Applicant each gave evidence. Given that the jurisdictional objection was made by the Respondent, it presented evidence first. The Applicant was allowed to cross-examine both Ms Hutchison and Mr Rodriguez. The Applicant then gave his evidence and was subsequently cross-examined by Ms Hutchinson. The Commission asked questions of all witnesses in order to clarify the evidence before it.
[14] In these reasons for decision the Commission does not seek to set out in detail all the evidence presented in the proceedings. In brief terms, the evidence was to the following effect.
[15] It was the evidence of Ms Hutchison that:
- Employees engaged by the Respondent go onto its payroll system, they receive a contract of employment and are orientated into the organisation. This system also applies to all casual employees whether they are engaged on a systematic basis or on an ad hoc basis; 3
• At no time was the Applicant placed onto the Respondent’s payroll system, he was not issued with any contract of employment, nor did he attend any orientation; 4
• The Applicant was not provided with any formal documentation; 5
- When the Applicant attended at the Respondent’s premises he signed in as a contractor; 6
• When he attended the Applicant completed the “Contractor Access Permit Passes & Keys” documentation 7 and indicated that the “Nature of Works” was “electronic-electromechanical repairs” or “electronic repairs”;
• Although there are no records of the Applicant signing in before around August 2012 8 the Respondent does not dispute that the Applicant likely first attended at an earlier time, but says there was then a gap of about two years before he attended again;
• The Applicant was not paid in respect of work he performed two years ago and the Applicant never sought payment for that time worked; 9
• Many years ago the Respondent contracted out its engineering services and now only employs three or four staff, all the other work is contracted out to contractors who enter into a Maintenance Services Contract. The Applicant also did not enter into a Maintenance Services Contract; 10
• Consequently, the work arrangement with the Applicant was a very loose one “where the applicant would turn up on occasion and if there was any work that was to be done, he either did the work on site or he was allowed to take the work away”; 11
• There was an understanding that the Applicant would be paid after he submitted invoices; 12
• The claim by the Applicant that he was an employee only arose after a dispute with the Respondent’s Finance department over payment of his invoices because they did not bear an Australian Business Number (ABN); 13
• The Applicant prepared, in their entirety, 14 and submitted two invoices to the Respondent both dated 8 February 2013;15
• Payment of the invoices remains outstanding. That is to say, the Applicant has not been paid for any of the work he has done for the Respondent.
[16] Under cross-examination by the Applicant, Ms Hutchison conceded that:
- There may have been other attendances at the Respondent’s Engineering department other than the six attendances recorded in the “Contractor Access Permit Passes & Keys” documentation; 16 and
• When, in its Employer’s reply to the Applicant’s original application, the Respondent stated that there was no contract with the Applicant, it meant there was no “written contract”. 17
[17] It was the evidence of Mr Rodriguez that:
- Approximately three years ago the Applicant presented at the Engineering Department seeking work. 18 He was advised there was none available.19
• Approximately 6 months later the Applicant presented at one of the Respondent’s campuses with a flyer advertising his services. The flyer was forwarded to the Engineering Department. 20 The Applicant “just turned up like a hawker.”21 He [Mr Rodriguez] did not contact the Applicant seeking his services.22
• When the Applicant presented himself at the Engineering Department he was told he could not work there because he did not have safety shoes or goggles. The Applicant then returned with safety shoes and goggles. Mr Rodriguez then allowed the Applicant to do some work on repairing “several hand control motors for [hospital beds]”. 23 This was a work “trial of a once-off”.24
- The Applicant advised that his costs were based on ‘piece work’ and not on an hourly rate. 25 There was an argument about what the Applicant wanted to be paid and “after that he never came back again”26 [until about two and half years later].
• The Applicant was not paid for the work he performed after he attended the first time because he never rendered an invoice. 27
• The Applicant was permitted to take away some battery charges to repair 28 although, at the time, he [Mr Rodriguez] was unaware that the Applicant had taken them.29
- The Applicant then disappeared for roughly two and half years and he [Mr Rodriguez] “never heard from him”. 30
• Approximately, two years later the Applicant returned and did some further work in the Engineering department. 31
• He [Mr Rodriguez] told the Applicant that he could not work in the department and all work must be conducted off-site. 32 However, it is clear from the evidence that the Applicant did not comply with this direction and Mr Rodriguez did not insist upon it. It is common ground that the Applicant performed work on site.
• It was explained to the Applicant that when he attended on site he must “report to the front desk, must sign in the contractors’ book, must get his yellow contractors’ jacket”. 33
• When on site the Applicant wore a “contractor ID badge” 34 and, consistent with the instruction given to him by Mr Rodriguez, the Applicant wore a yellow St Vincent’s contractors’ jacket.35
• When the Applicant repaired some hand control motors he told Mr Rodriguez that he was not going to charge the Respondent for that work. 36
• It was the dispute between the Applicant and the Respondent’s Finance department about the requirement for an ABN which resulted in Mr Rodriguez advising the Applicant that there would be no more work for him. 37
• “At no time during this three year period was [the Applicant] contracted to perform work for St Vincent’s. [The Applicant] would just ‘turn up’ looking for work”. 38
• He [Mr Rodriguez] had no authority to employ the Applicant. 39
[18] Under cross-examination by the Applicant, Ms Rodriguez conceded that:
- “Ravi” approved for payment each of the invoices dated 8 February 2013. 40
• Prior to 29 August 2012 there was one other time when the Applicant attended the Engineering department. 41 Importantly, despite being asked to do so by the Commission, the Applicant declined the opportunity to put any other specific dates to Mr Rodriguez that he says he attended the Engineering department outside of the six occasions documented in Exhibit “R3”.42
• The Applicant mainly fixed “control boxes”. 43 This concession followed some confused evidence from Mr Rodriguez about whether the Applicant worked on “hand controllers”, “actuator motors” or “control boxes”. On Mr Rodriguez’s evidence, it seems more than likely that, at various times, the Applicant may have done some work on all three.
• Work was allocated to the Applicant by either Rob Blight or Tony D’Angelo. 44 He [Mr Rodriguez] gave Rob Bright authority to give work to the Applicant.45
• The work undertaken by the Applicant was performed in the Respondent’s workshop. 46
- The Applicant used some of the Respondent’s equipment. 47
- Spare parts were sourced from those in the possession of the Respondent. 48
[19] The Applicant gave evidence on his own behalf. His evidence was that:
- He [the Applicant] approached the Respondent seeking engineering type work. He has 30 years experience and qualifications in electronic repairs. 49
• He [the Applicant] spoke with Mr Rodriguez who advised him that there was work for him at the hospital. 50
• “[A]t all times, he (the Applicant) was a casual employee”. 51
• He [the Applicant] worked for the Respondent for approximately 2 years. 52
• He [the Applicant] attended at the hospital between 15 to 20 times. 53
• Prior to commencement the Applicant and Respondent agreed that:
• the Applicant would supply his personal labour and skills to perform repairs; 54
o payment would be on a “price per item or activity”; 55
o the engagement was as a casual employee and ongoing; 56
o the Applicant would attend the hospital when requested to do so; 57
o payment for work completed would be via invoice generated by the Applicant. 58
- At least 22 items were repaired, 59 over a number of visits. The Applicant repaired about 15 “hand controllers” for free.60
• The visits were not at the Applicant’s initiative. He [the Applicant] was invited to complete more repairs as the need arose. 61 Each time he was called by either Mr Rodriguez “or Robert or Tony to come in and do repairs on whatever was outstanding”.62
• The Respondent directed the Applicant in relation to what to do and also how and when the repairs were to be done. This included controlling items needed to be repaired and, with some repairs, he [the Applicant] was told which faulty components to replace. 63
• The Respondent controlled the hours of the Applicant’s employment. The Applicant was required to attend the workshop. 64
• The work was done at St Vincent’s Hospital. 65
• He [the Applicant] was directed to use the Respondent’s workshop. He was provided with his own workbench and the Respondent provided all the tools. The Respondent provided all the spare parts. In some situations he [the Applicant] used his own tools. 66 However, he bought and supplied his own safety boots.67
• He was not allowed to delegate the work or to sub-contract it out. 68
• The pattern of work was sometimes regular and “sporadic at times”. 69
[20] Under cross-examination by Ms Hutcheson or questioning by the Commissioner, the Applicant conceded that:
- He [the Applicant] had, in the past, also worked for:
o the Alfred Hospital invoicing it for his work; 70
o St Vincent’s Private in December 2012 invoicing it for work; 71
o Eye and Ear Hospital; 72 and
o Heavenly Bedding and Furniture Galore. 73
- The flyer he provided to the Respondent he had also provided to Caritas Christi in Kew advertising what he offered and seeking work. 74
• While working for the Respondent he also performed work for other individuals and other companies. He became an authorised service agent. 75
• The Respondent did not seek to stop the Applicant from working elsewhere. 76
• It was he [the Applicant] who prepared the invoices. 77
• He [the Applicant] presently does electronics works for private individuals. 78
• He [the Applicant] recently performed repair work for an aged care facility that he intends to invoice. 79
• He [the Applicant] describes himself on his invoices as “GT Electronics”, although that is not a registered business name. 80
• He [the Applicant] advertises his services on the internet, he makes contact with people and “develops business relationships in that way”. 81
• He [the Applicant] could have refused to attend when asked to come in to do repairs. 82 It was up to him [the Applicant] whether he wanted to go in or not.83
• There was no specific invoice per visit. All visits were collected together and presented in the invoices of 8 February 2013 84 for the totality of the work performed over the previous two years.85
• He [the Applicant] charges per item based on the complexity of the repair. 86
• After the first time he worked for the Respondent (about two years ago) he took some batteries away to repair 87 although he did not undertake the repairs because he could not agree on a price with Mr Rodriguez.88
- He [the Applicant] did not wear the polo top with the St Vincent’s insignia worn by employees of the Respondent. 89
• Upon attending the hospital he [the Applicant] was required to sign into the contractor book, where a contractor ID and fluorescent jacket with the word “contractor” on the back. 90
• After some time he [the Applicant] was given a job number like other contractors. 91
The law
[21] Under the Act, an “employee” means a “national system employee” 92. The effect of the definition of “national system employee”93 is that a resolution of the jurisdictional objection requires an application of the common law principles applying the distinction between an employee and independent contractor. As the Full Bench stated in Jiang Shen Cia trading as French Accent v Do Rozario (French Accent) it “is a distinction with substantial economic consequences in the modern era”.94
[22] The Applicant drew the Commission’s attention to or relied upon a number of decisions including Roy Mogan Research Pty Ltd v Commissioner of Taxation. 95 The Commission has had regard to those decisions. The Applicant also referred the Commission to Australian Tax Office Tax Ruling 2013/1. The Respondent did not draw the Commission’s attention to any authorities about how employees are to be distinguished from independent contractors.
[23] In addition to the decisions that the Applicant relied upon, the relevant authorities are well established. 96 In deciding this matter the Commission has had regard to those decisions also. In particular the Commission adopted the principles espoused by the Full Bench in French Accent and applied them to the facts in this matter.
[24] As the Applicant correctly submitted, the exercise to be undertaken requires the Commission to look at the “real substance of the relationship in question” 97 and to determine, “considering the totality of the relationship”,98 whether:
- “the degree of independence overall is sufficient to establish that [the Applicant was] working on his own behalf rather than acting as the servant of [the Respondent]”; 99
• “viewed as a practical matter [the Applicant was] ... running [his] own business or enterprise”; 100
• “it can be said that, viewed as a practical matter, the [Applicant] was or was not running [his] own business or enterprise with independence in the conduct of [his] operations as distinct from operating as a representative of [the Respondent] with little or no independence in the conduct of [his] operations”. This is particularly so if “the indicia point both ways and do not yield a clear result”. 101
Employee or Contractor Submissions
[25] The Respondent submitted that all the indicators point to the Applicant not being an employee. The Respondent said there was a loose work arrangement,a lack of formality in the relationship and that the Applicant was not engaged as an employee (or a contractor for that matter) under the Respondent’s usual processes and documentation.
[26] The Applicant submitted that he was a casual employee who satisfies the minimum qualifying period of six months. He said he was employed on a regular and systematic basis. He said that the “control test”, the “integration test”, the “delegation test”, the “risk test” and the “profitability test” all point to him being an employee.
Conclusions
[27] The Commission has had regard to the evidence before it and, in particular, to the exercise to be performed having regard to paragraph [30] of the French Accent decision (which had regard to the Brodribb decision and, in particular, the Vabu decision). Not all of the indicia are relevant in this matter, nor, as the Full Bench stated in French Accent, is the list exhaustive.
Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like.
[28] Most of the work was performed in the workshop of the Respondent’s Engineering department. However, at one point some work (battery repairs) was taken home by the Applicant.
[29] Because most of the work was performed at St Vincent’s Hospital there was little flexibility about what jobs were to be undertaken. The Respondent allocated the work. The Respondent indicated what needed to be done and what it wanted fixed. However, once the jobs were allocated the Applicant was left to his own devices. This is to be expected having regard to the skill and experience of the Applicant as an electrical repairer with 30 years experience. He was not micro-managed. His work was not controlled with any sense of precision. The evidence of Mr Rodriguez was that there was a lack of clarity about what work the Applicant was doing. To the extent that the Applicant asserted that the Respondent controlled the manner in which he preformed the work, the Applicant overstated the position.
[30] Further, the Applicant was at liberty to decide when he worked. At all times he was at liberty to reject work from the Respondent. It is irrelevant that, on the Applicant’s evidence, he never rejected work. He conceded that he could have. There was no obligation to work for the Respondent.
Whether the worker performs work for others (or has a genuine and practical entitlement to do so).
[31] The Applicant was working for other private individuals and companies over the same period that he was working for the Respondent. There was no restriction on the Applicant performing other work.
Whether the worker has a separate place of work and or advertises his or her services to the world at large.
[32] Although the Applicant performed most of the work he undertook for the Respondent at the Respondent’s premises, the Applicant has a separate place of work. He performs work there.
[33] The Applicant hands out flyers at various places touting for business. That is how he came to perform some work for the Respondent.
[34] Further, the Applicant advertises his services to the whole world over the internet. In his own words he “develops business relationships in that way”.
[35] The Commission is satisfied that the Applicant runs an electrical repair business and advertises his services to the world at large.
Whether the worker provides and maintains significant tools or equipment.
[36] The evidence is that the Respondent has its own tools and equipment and the Applicant used them when he was working on site in the Respondent’s Engineering department. The Respondent provided him with his own workbench.
[37] However, there is evidence that the Applicant also used his own tools. Further, he bought and supplied for himself safety boots.
Whether the work can be delegated or subcontracted.
[38] Because the Applicant performed most of the work on site at St Vincent’s Hospital, as a practical matter, it could not be delegated by him. However, to the extent that work was taken away (like the batteries) he could have delegated or subcontracted this work (although he did not because he returned the batteries when a price could not be agreed on the repair cost).
Whether the putative employer has the right to suspend or dismiss the person engaged.
[39] The Respondent did not have the right to suspend or terminate the Applicant but it could contractually end the working relationship with him.
Whether the putative employer presents the worker to the world at large as an emanation of the business.
[40] The Respondent went to great lengths to ensure that the Applicant was not represented to the world as an emanation of the hospital. The uncontroverted evidence is that the Applicant was required to:
- sign in on the contractors’ register;
- wear a contractor’s tag; and
- wear a florescent or Hi Vis vest with the word “Contractor” on the back of it.
Whether income tax is deducted from remuneration paid to the worker.
[41] During the more than two years of association between the Applicant and the Respondent no remuneration was paid to the Applicant. On 8 February 2013 the Applicant rendered two invoices for payment which (to date) remain outstanding. However, it was always the intention of the Respondent to not deduct income tax from the payment. At no time did the Applicant indicate that income tax ought to be deducted. The real dispute here was about whether the Applicant was required to provide an Australian Business Number and what tax treatment flowed when he did not.
Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.
[42] The Applicant was not to be paid a periodic wage or salary. The Applicant was to be remunerated by reference to the completion of tasks. The invoices for payment were prepared by the Applicant. On them he sought to be paid for “repairs” not by hours of work. The payment system devised by and voluntarily put forward by the Applicant was not consistent with that of casual employment.
Whether the worker is provided with paid holidays or sick leave.
[43] The answer to this question is no. The Applicant said that had he been sick he would have expected to be paid sick leave, but this is inconsistent with the main tenor of his evidence that he was a casual employee. In any case it is clear that during the two or so years of the relationship between the Applicant and the Respondent he was never paid sick leave or annual leave. Nor was there any complaint by him about the non-payment of such leave.
Whether the work involves a profession, trade or distinct calling on the part of the person engaged.
[44] The Applicant holds some post-secondary qualifications. The work undertaken required some skill and experience. The Applicant has been doing this type of work for 30 years.
Whether the worker creates goodwill or saleable assets in the course of his or her work.
[45] Although the Applicant runs his own repair business there was no evidence about whether there was goodwill or a saleable asset.
Whether the worker spends a significant portion of his remuneration on business expenses.
[46] No payment for any work has been made to the Applicant. There was no evidence about what the Applicant spends his remuneration on to further his business.
Summary of the indicia
[47] When assessing the evidence in this matter the following table summarises the factors which support each of the parties’ contentions about whether the Applicant was an independent contractor or an employee.
| More like an employee | More like an independent contractor | |
| Control over manner in which work is performed | P | |
| Flexibility of working hours | P | |
| Place of work | P | P (could take some work home) |
| Outside activity | P | |
| Tools and equipment | P | P (for off-site work) |
| Right to delegate | P (no delegation on-site) | P (could delegate off-site) |
| Right to suspend/terminate | P | |
| Representation to the outside world | P | |
| Tax treatment | P | |
| Basis for payment (periodic, salary, completion of tasks) | P | |
| Entitlement to leave | P | |
| Professional skill | P | |
| Goodwill | No evidence either way | No evidence either way |
| Profitability | No evidence either way | No evidence either way |
[48] As is evident from the above summary, the indicia in this matter point in different directions. Sometimes they point to the Applicant being an employee, sometimes they point to the Applicant being an independent contractor, but this is “not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation”. 102 The indicia are not exhaustive. Nor are there rules as to the weighting to be given to the indicia in the decision making process.103 However, in the present matter the Commission does put particular weight on the manner in which the invoicing was arranged by the Applicant (which was at his instigation) and the manner in which he sought to be paid.
[49] The indicia give a good view of the relationship between the Respondent and the Applicant. In this case the balance is not a fine one. It is distinctly in one direction. Viewed as a practical matter the Commission is satisfied that the Applicant was running his own business.
[50] It follows that the Commission finds that the Applicant was not an employee of the Respondent.
Disposition of the Matter
[51] An order 104 disposing of the matter will be issued separately.
COMMISSIONER
Hearing details:
2013.
Melbourne:
June, 28
1 Fair Work Act 2009 (Cth), section 382(a)
2 Section 396.
3 Transcript PN53.
4 Ibid.
5 Ibid.
6 Ibid.
7 Exhibit “R3”.
8 Transcript PN60.
9 Transcript PN91.
10 Transcript PN65.
11 Transcript PN68.
12 Transcript PN80.
13 Transcript PN84.
14 Transcript PN98.
15 Exhibit “R4”.
16 Transcript PN117-122.
17 Transcript PN178.
18 Exhibit “R2”, para [4].
19 Exhibit “R2”, para [5].
20 Exhibit “R2”, para [6].
21 Transcript PN247.
22 Transcript PN272.
23 Exhibit “R2”, para [9].
24 Transcript PN216 and PN225.
25 Exhibit “R2”, para [11] and transcript PN225.
26 Transcript PN240.
27 Transcript PN241.
28 Exhibit “R2”, para [12].
29 Transcript PN218-221.
30 Transcript PN237.
31 Exhibit “R2”, para [13].
32 Exhibit “R2”, para [14].
33 Transcript PN242.
34 Transcript PN267.
35 Transcript PN271.
36 Transcript PN232-233.
37 Exhibit “R2”, para [18]-[27].
38 Exhibit “R2”, para [28]-[29].
39 Transcript PN521.
40 Transcript PN394-407.
41 Transcript PN459
42 Transcript PN474-475.
43 Transcript PN511.
44 Transcript PN531.
45 Transcript PN533.
46 Transcript PN548.
47 Transcript PN549.
48 Transcript PN552.
49 Transcript PN696.
50 Transcript PN740.
51 Exhibit “A1”, page 1, para 1.
52 Exhibit “A1”, page 2, para 1.
53 Transcript PN746.
54 Exhibit “A1”, page 2, para 2.
55 Exhibit “A1”, page 2, para 3.
56 Exhibit “A1”, page 2, para 4.
57 Exhibit “A1”, page 2, para 5.
58 Exhibit “A1”, page 2, para 6.
59 Exhibit “A1”, page 2, para 8.
60 Transcript PN740.
61 Exhibit “A1”, page 4, para [14].
62 Transcript PN740.
63 Exhibit “A1”, page 4, para 6-8 and transcript PN796-797 and PN804.
64 Exhibit “A1”, page 5, para 1.
65 Transcript PN740 and PN746.
66 Exhibit “A1”, page 5, para 4-7 and transcript PN746.
67 Transcript PN740.
68 Exhibit “A1”, page 5, para 8.
69 Exhibit “A1”, page 6, para 7.
70 Transcript PN710-716.
71 Transcript PN717-720 and page 1 of Exhibit “R4”.
72 Transcript PN725.
73 Transcript PN861.
74 Transcript PN830-832.
75 Transcript PN843-844.
76 Transcript PN845.
77 Transcript PN723.
78 Transcript PN728.
79 Transcript PN729-730.
80 Transcript PN731-732.
81 Transcript PN738-739.
82 Transcript PN745.
83 Transcript PN746.
84 Transcript PN754-755.
85 Transcript PN773.
86 Transcript PN779.
87 Transcript PN787-789.
88 Transcript PN795.
89 Transcript PN805.
90 Transcript PN808-813.
91 Transcript PN814.
92 Section 380.
93 Section 13 .
94 [2011] FWA 3003, [23]
95 [2010] FCAFC 52.
96 Jiang Shen Cia trading as French Accent v Do Rozario[2011] FWA 3003 (French Accent), Abdalla v Viewdaze Pty Ltd (2003) 121 IR 215 (Abdalla), Hollis v Vabu Pty Ltd (2001) 207 CLR 21 (Vabu) and Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, (Brodribb),
97 On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No. 3) [2011] FCA 366 [189].
98 Abdalla at [34]
99 Brodribb at [9] per Wilson, Dawson JJ.
100 Vabu at 47
101 Abdalla at paragraph 34(5).
102 Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944.
103 Sammartino v Mayne Nickless Express t/a Wards Skyroad (2000) 98 IR 168 [58].
104 PR539600.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR539602>
1
8
0