Ms Felicity Klavs v Prestige Painters

[2013] FWC 2485

[2013] FWC 2485

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Felicity Klavs
v
Prestige Painters
(U2012/14250)

COMMISSIONER SIMPSON BRISBANE, 24 MAY 2013

Termination of employment - genuine redundancy - s.394 application dismissed.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Ms Klavs (“the Applicant”) who alleges that the termination of her employment as a painter with Prestige Painting Services Cairns Pty Ltd (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act.

[2] The application was filed on the 17 October 2012 and a conciliation conference was conducted on 12 November 2012 which was not successful in resolving the matter. The matter was allocated to me and listed for Directions 5 March 2013. A further conciliation conference was listed for 8 April 2013 which again was unsuccessful. I issued a decision on 22 April 2013 dismissing an application by the Respondent under section 587. 1

[3] The matter was then listed for hearing on 24 April 2013 in Cairns. The Applicant represented herself and the Respondent was represented by Mr Dean Cameron of the Queensland Master Builders Association Industrial Union of Employers (QMBA). The central issue in the case is whether the Applicant’s termination was a genuine redundancy or whether her dismissal was not a redundancy and was because she made a complaint to the Fair Work Building and Construction (“FWBC”) in connection with living away from home allowances under the Building and Construction General On-site Award 2010 (“the Award”). The Applicant was clear in that she sought a remedy of reinstatement. 2

CONSIDERATION

[4] Section 385 says as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy..” (my emphasis added)

[5] Section 396 says as follows:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy..” (my emphasis added)

[6] As is made clear from the above provisions of the Act I must determine whether the termination of the Applicant was a genuine redundancy before considering the merits.

[7] Section 389 provides as follows:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

Did the Applicant’s employer no longer require the Applicant’s job to be performed by anyone because of operational requirements of the employer’s enterprise?

[8] The Applicant says that at a meeting at the Cairns TAFE College between Mr Richardson and herself which she believed occurred on Friday afternoon 28 September 2012 3 he said to her that he wanted to sack her because of her complaint concerning living away from home allowance, and later he put an offer to her to settle the complaint. She claimed this was said as part of a conversation that lasted for about an hour.4 She later said he probably used the word dismiss rather than sack.5

[9] The Applicant said that after considering the offer over the weekend she advised Mr Richardson on the following Tuesday 2 October that she declined the offer. The Applicant was subsequently dismissed on 10 December. She accepted that after the conversation on the Friday afternoon she returned to work for another hour that day and also worked the next day. 6 She also said she worked on the days after 2 October up to the day of her termination. The Applicant claimed Mr Richardson came to site on 2 October to bring some paint to the job site and pulled her aside and said something to the effect that the dye had been cast.7

[10] The Applicant accepted that another employee Mr James Scott had been made redundant a few days before her. She also accepted that Mr Wayne Dunne and Mr James Furez had also left the employment of the Respondent around this time. 8

[11] The Respondent argued that the redundancy was based on a lack of work in the depressed construction industry in Cairns. The Respondent relied on a range of material to support this claim. The termination letter 9 provided to the Applicant on 10 October 2012 said the following:

“Dear Felicity

Re: Employment

Due to the decrease in work load and the dim prospects of anything forthcoming I am forced to let people go. I have already let 2 people go this week and will be finishing up another person on Friday 12th October 2012.

With regards to yourself I have found you work with Dan Vella. I have spoken with him and he has told me he will take you on. There is not much more I can do other than that.

You will be paid up to and including Wednesday 10th October 2012 along with 2 days notice. Your last day with Prestige Painting Services will be close of business on Wednesday 10th October 2012.

I suggest you contact Dan Vella on Ph 0439 703 533 as soon as possible. It is entirely up to you to pursue the offer and follow up the arrangement I have put in place for you...”

[12] A Profit and Loss Statement for October 2012 10 was tendered indicating the Respondent made a loss of $2,211.29 for that month. Customer sales records for the Respondent for the period 21 September 2012 through to 1 November 2012 indicated a reduction in sales during that period.11 Mr Richardson stated that costs were exceeding income at the time the Applicant was terminated.12

[13] The Respondent also produced two reports described as “roll call reports”, 13 one dated 3 October 2012 and one dated 20 February 2013 that Mr Richardson said itemised jobs and hours in order to do figures on how successfully jobs work.14

[14] The roll calls 15 comparing staffing in the week of 3 October and the week of 20 February 2013 indicated there were 28 employed by the Respondent at the earlier of the two weeks and 15 at the later. It is not contested that Scott James another employee of the Respondent was made redundant on 3 October 2012.16

[15] The evidence of Mr Richardson was that Mr Conrad relocated from Darwin to Cairns and that a range of other employees who are named on the October list but who do not appear in the February list left of their own accord. It appeared evident that some employees were not made redundant by the Respondent however, if not engaged as permanent weekly employees, take time off on an unpaid basis from time to time to reduce operating costs for the Respondent. 17 Mr Brooker gave evidence concerning a range of employees who had been engaged by the Respondent and left employment with the Respondent of their own accord.18

[16] Three graphs 19 were produced by the Respondent, the first indicating ‘Total Employees On-Site Per Week 26/9/12 to 7/11/12” which claimed the number had fallen from 29 at the start of the period to 12 around 1 November 2012 and back up to 14 by 7 November 2012.

[17] The second, “Total Worker Hours 26/9/12 to 7/11/12” indicated around 1200 hours at the beginning of the period dipping to just over 400 hours around 1 November 2012 climbing back up to over 500 hours around 7 November 2012.

[18] The third graph “Invoiced Sales On All jobs 21 September 2012 to 1 November 2012” again indicated a significant fall from the later part of September to early October with some recovery in early October and a further fall in mid October 2012. The Respondent also tendered records of employee’s weekly time sheets. 20

[19] The Respondent also tendered a document titled “Cairns Watch April 2013” authored by property advisors Herron Todd White, and specifically a graph in that document indicating a decline in building approvals in Cairns. 21

[20] Mr Richardson gave evidence that the downturn in work was very real in Cairns and that was the reason he had sought work in Darwin. 22 He gave evidence that the business has “constricted”, from “...an average of say 30/35 painters to I think at the moment I’m running 11 or 12.”23

[21] The Applicant challenged the proposition that the Respondent was suffering a downturn in Cairns on a number of grounds, including that only James Scott and herself had been let go.

[22] The Applicant raised the case of work performed by the Respondent for Pillow Talk and James Cook University (JCU) and a number of other sites to indicate the Respondent’s employees in Cairns were receiving regular and systematic work. In the case of JCU the Applicant said two employees Mr Johnson and Mr Jones worked at the site for a period of three weeks doing 40 hour weeks. Mr Richardson responded that the point was he didn’t have enough work to continue to employ the Applicant as well. 24 Mr Richardson gave evidence that the work of a painting contractor is intermittent on projects depending on the builder who is in control of the project.25

[23] Mr Robert McNee, who had been employed by the Respondent as a Foreman since 1995 gave evidence that supported the claim that the business was suffering a downturn. He said at times the business has been struggling to place employees from day to day. He said Mr Richardson had raised concerns with employees in early October 2012 that ongoing work was so scarce that they may have to consider working a four day week. 26

[24] Mr McNee also gave evidence about a dinner in Darwin at the Parap Hotel attended by the Applicant, Mr Conrad Brooker, Mr Richardson and himself during which discussions occurred at length concerning the downturn in the industry in Cairns and that some workers may have to be let go. 27 The Applicant agreed she attended the dinner but denied that these discussions occurred.28

[25] Mr Tony Singleton, another employee of the Respondent since June 2009 also gave evidence that Mr Richardson had expressed to staff on numerous occasions that workload was on a downturn, and the Respondent had always informed employees what the next job is or how far away it is. Mr Singleton also said Mr Richardson had informed employees there would be layoffs, and that while he was working in Darwin Mr Richardson had advised that Cairns was slow and he may not be able to keep us all on. 29

[26] Mr John Johnson also gave evidence that Mr Richardson had given advance warning to employees that he was attempting to secure more work but if he could not there would be layoffs. 30

[27] The Applicant denied Mr Richardson had discussed what work was coming up at meetings. 31 Mr Brooker also contradicted the evidence of other employees saying he could not remember discussion of a downturn in work.32

[28] I accept the evidence of the Respondent that the nature of the work of the Respondent can be intermittent and in circumstances during periods where the Respondent has been unsuccessful in winning a given proportion of tenders for work its workforce will necessarily contract. The evidence satisfies me that was in fact occurring at the relevant time when the Applicant was terminated.

[29] The Applicant conceded that she had not held a driver’s licence for some time prior to her termination. The Respondent indicated that one of the reasons that the Applicant was selected over other employees for termination was the fact that she did not have a driver’s licence. Mr Richardson gave evidence that the day he visited the Kewarra Beach site the Applicant arrived an hour and half late. 33

[30] He said as the workforce constricted her requirement to be picked up and dropped off did not provide the flexibility required because people had to move around too much. 34 Mr Singleton gave evidence that the Applicant had difficulty getting from job site to job site and relied on others for transport.35

[31] The Respondent also claimed that the Applicant had taken 62 sick days in the last 13 months. Mr Richardson conceded this number could have included holidays. He said the Applicant’s reliability was not an issue. On the basis that there was minimal evidence on this point I will regard it as a neutral issue. 36

[32] Mr Richardson gave evidence that due to how the business was trading he decided to let someone go and selected the Applicant for the reasons set out above. He was aware there may be some sensitivity due to the circumstances of the Applicant having made a complaint. He said the following in his statement:

“..From the outset I believe I have acted in good faith with regards to Felicity. I approached Dean Cameron prior to ask him his advice. My exact words were I know this does not look good considering her action against me but that I genuinely need to let people go. We discussed the issue and he agreed that the downturn in work was common knowledge and as long as I made every effort to find Felicity employment I should do whatever I needed to do to effectively run my business. I did find her employment but she chose for whatever reason not to contact the future employer being Dan Vella.” 37

[33] In his oral evidence besides saying he contacted Mr Cameron Dean at the QMBA, he also said he spoke to his wife who contacted the FWA (to which I understood he was referring to the FWO) and he instructed the QMBA to do the same on his behalf. 38

[34] The termination letter itself dated 10 October 2012 stated:

“Due to decrease in work load and the dim prospects of anything forthcoming I am forced to let people go. I have already let 2 people go this week and will be finishing up another person on Friday 12 October 2012...”

[35] The Applicant took issue with Mr Richardson’s claim that he had “let people go”. There is no dispute that the Respondent did terminate James Scott on 3 October. It became clear in evidence that other employees who left the Respondent’s employment around that time including Geoff Dunne and Jason Furze did so of their own accord rather than at the initiative of the Respondent as the expression, “let go” would imply. However that does not alter the fact that the Respondent’s workforce was shrinking which is consistent with Mr Richardson’s explanation for the Applicant’s termination.

[36] Based on all the evidence that I have referred to above concerning the state of the employer’s business as at 10 October 2012 I am satisfied that the requirements of s.389(1)(a) have been satisfied in that the Respondent no longer required the Applicant’s job to be done by anyone because of changes in the Respondent’s operational requirements.

Did the Respondent comply with any obligations in a modern award or enterprise agreement that applied to the employment to consult about redundancy?

[37] There appeared to be no dispute that the Applicant was covered by the Building and Construction General On-site Award 2010 (the Award). Clause 10 of the Award provides as follows:

“10. Types of employment

10.1 Employees under this award will be employed in one of the following categories:

(a) daily hire employees;

(b) full-time weekly hire employees;

(c) part-time weekly hire employees; or

(d) casual employees.

10.2 At the time of engagement an employer will inform each employee, in writing, of the terms of their engagement and, in particular, whether they are to be daily hire, full-time, part-time or casual employees.”

[38] Clause 11 and 12 of the Award provide as follows:

“11. Daily hire employees

A daily hire employee means a tradesperson or labourer engaged subject to the following provisions:

11.1 One day’s notice of termination of employment will be given on either side or one day’s pay will be paid or forfeited.

11.2 Notice given at or before the usual starting time of any ordinary working day will expire at the completion of that day’s work.

11.3 A tradesperson will be allowed one hour prior to termination to gather, clean, sharpen, pack and transport tools.

11.4 Nothing in this clause will affect the right of an employer to dismiss an employee without notice for misconduct or refusing duty.

12. Full-time weekly hire employment

A full-time employee is an employee who works an average of 38 ordinary hours per week.”

[39] Clause 14 of the Award provides as follows:

14. Casual employment

14.1 A casual employee is one engaged and paid in accordance with the provisions of this clause.

14.2 A casual employee is entitled to all of the applicable rates and conditions of employment prescribed by this award except annual leave, paid personal/carer’s leave, paid community service leave, notice of termination and redundancy benefits.

14.3 An employer, when engaging a person for casual employment, must inform the employee, in writing, that the employee is to be employed as a casual, stating by whom the employee is employed, the job to be performed, the classification level, the actual or likely number of hours to be worked, and the relevant rate of pay.

14.4 A casual employee is entitled to payment for a minimum of four hours’ work per engagement, plus the relevant fares and travel allowance and expenses prescribed by clauses 24-Living away from home-distant work and 25-Fares and travel patterns allowance on each occasion they are required to attend work.

14.5 A casual employee must be paid a casual loading of 25% for ordinary hours as provided for in this award. The casual loading is paid as compensation for annual leave, personal/carer’s leave, community service leave, notice of termination and redundancy benefits and public holidays not worked.

14.6 A casual employee required to work overtime or weekend work will be entitled to the relevant penalty rates prescribed by clauses 36-Overtime, and 37-Penalty rates, provided that:

(a) where the relevant penalty rate is time and a half, the employee must be paid 175% of the hourly rate prescribed for the employee’s classification; and

(b) where the relevant penalty rate is double time, the employee must be paid 225% of the hourly rate prescribed for the employee’s classification.

14.7 A casual employee required to work on a public holiday prescribed by the NES must be paid 275% of the hourly rate prescribed for the employee’s classification.

[40] Section 123 of the Act 2009 provides as follows: (my underlining added).

“Subdivision C—Limits on scope of this Division

123 Limits on scope of this Division

Employees not covered by this Division

(1) This Division does not apply to any of the following employees:

(a) an employee employed for a specified period of time, for a specified task, or for the duration of a specified season;

(b) an employee whose employment is terminated because of serious misconduct;

(c) a casual employee;

(d) an employee (other than an apprentice) to whom a training arrangement applies and whose employment is for a specified period of time or is, for any reason, limited to the duration of the training arrangement;

(e) an employee prescribed by the regulations as an employee to whom this Division does not apply.

(2) Paragraph (1)(a) does not prevent this Division from applying to an employee if a substantial reason for employing the employee as described in that paragraph was to avoid the application of this Division.

Other employees not covered by notice of termination provisions

(3) Subdivision A does not apply to:

(b) a daily hire employee working in the building and construction industry (including working in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures); or

(c) a daily hire employee working in the meat industry in connection with the slaughter of livestock; or

(d) a weekly hire employee working in connection with the meat industry and whose termination of employment is determined solely by seasonal factors; or

(e) an employee prescribed by the regulations as an employee to whom that Subdivision does not apply...”

[41] The Respondent asserted that the Applicant was a casual employee while the Applicant maintained she was a full time permanent employee. It is generally accepted casual employees are engaged by the hour whilst the Award provides for one day's notice of termination of employment in the case of daily hire employees.

[42] There is clear evidence that a number of employees of the Respondent were permanent weekly employees who received paid leave and other entitlements consistent with an engagement of that nature. The nature of the Applicant’s engagement did not fall into a category of full time weekly hire as defined in clause 12 of the Award. The Applicant gave the following evidence:

“...I have worked for Bill on and off and I’ve only ever ceased work because of a shortage of work, never of my own choosing, I have never in the past been offered redeployment to anybody.”  39; and further,

“...I did find it strange that I have been dismissed, let go, probably four or five times over the last four years, and this is the first time ever I have been offered redeployment.” 40

[43] The Applicant said in material attached to her originating application:

“Commonly if things get slow Bill may ask you to have a few days off or even a week or so. This happens with all Prestige Painters, from time to time...”

[44] In other reference material attached to the originating application under a heading “overview” the Applicant said:

“All up throughout my employment with Bill I have been laid off approximately six times, due to shortage of work.”

[45] The Applicant also said in closing submissions that her last working day in Darwin was 7 September 2012 and she arrived back in Cairns on 10 September 2012. She then had time off between 11 September and 20 September before starting back at the Cairns TAFE on Monday 22 September 2012.

[46] Whilst I am satisfied the Applicant’s employment could be regarded as regular and systematic such that she would meet the requirements of s.384 of the Act in order for her to be entitled to bring this application in circumstances where she was a casual, there is no evidence that the Applicant accrued entitlements such as annual leave or personal leave as either a full time weekly hire employee, or daily hire employee would be entitled to do under the Award.

[47] I am satisfied on the basis of the material before me that the engagement was as a casual employee. The history of the employment relationship between the Applicant and Respondent featured stops and starts consistent with the possibility it could be daily hire engagement, however the evidence of the Respondent concerning its understanding, in combination with the method of payment indicates a casual and not a daily hire engagement.

[48] On that basis I have found that the Applicant was not entitled to the notice period that a daily hire employee would be entitled to of one day despite the Applicant paying two days notice. Even if I am wrong and the Applicant was a daily hire employee I am satisfied the Respondent has complied with the consultation requirements to discuss the changes as required by clause 8 of the Award.

[49] I am of this view as there was considerable evidence to the effect that Mr Richardson had been raising with employees the prospect of layoffs for some time before the terminations in early October, including that of the Applicant. This conclusion is supported by the evidence of Mr Richardson, Mr McNee, Mr Singleton and Mr Johnson. To the extent that there was inconsistency between the evidence of these four witnesses and the Applicant and Mr Brooker on whether the layoffs were discussed with employees I think it is more probable that the evidence of the witnesses for the Respondent is correct as their evidence was clear and consistent on the point, whereas Mr Brooker stated he could not recall such discussions and the Applicant was alone in assertively contradicting the claim.

[50] Further the Respondent took active steps in keeping with the intent of clause 8 of the Award by attempting to mitigate the adverse effects of termination on the Applicant by speaking to Mr Dan Vella who is also a painting contractor in the Cairns area. Mr Richardson advised Mr Vella that he had an employee he had to let go and asked him if he was hiring employees at that time to which Mr Vella replied yes. Mr Richardson said he advised Mr Vella the Applicant was a good worker and he claimed he said to Mr Vella “I will let her know and it will be up to her to contact you.” 41

[51] Mr Richardson said at the time he gave the Applicant the termination letter he said the following in the context of the Applicant’s complaint to the FWBC:

“I suggested to you at that stage, if I were you I wouldn’t mention anything to Dan Vella because I don’t think any employer would want to know this information as it may scare them off and that is what I said.” 42

[52] While the Applicant interpreted this to mean Mr Richardson did not want to continue to employ her because of the complaint, it could just as equally have been a case of Mr Richardson attempting to prevent the Applicant from raising an issue with Mr Vella that may cause him to hesitate about offering employment to the Applicant.

[53] Mr Richardson gave evidence that the nature of his relationship with Mr Vella was that even though they competed against each other in the contract painting industry in Cairns, if either had employees who may no longer be able to be employed they would contact each other to see if they have available work at that time. 43 Mr Vella confirmed this was the case.44 Mr John Johnson also gave evidence that it was his experience that Mr Richardson tried to find employment for employees he had to let go.45

[54] Mr Vella gave evidence that his company had operated since 2007 in the Cairns area and currently engaged 15 employees. His evidence was consistent with that of Mr Richardson in that he said Mr Richardson approached him on 8 October 2012 and requested if he could offer a start to a number of experienced painters and he referred to the Applicant by name. Mr Vella said Mr Richardson only made positive comments about the Applicant and was genuinely seeking employment for her and other staff. He said the Applicant had never contacted him. He said he commenced a number of staff in mid-October 2012 who remained engaged by him and he would have employed the Applicant had she contacted him. 46

[55] Mr Vella also confirmed he wrote correspondence dated 12 December 2012 concerning his conversation with Mr Richardson on 8 October 2012 47 and sent email correspondence to the QMBA on 16 April advising that his company had 13 painters working for the company, 9 on PAYG arrangements and the others as contractors.48

[56] Mr Vella said that it was his preference to engage painters on PAYG. His starting hourly rate was $26. 49 The Applicant accepted that Mr Richardson told her on 10 October that he had arranged for her to work with Mr Dan Vella and the telephone number for Mr Vella was on the termination letter.50

[57] The Applicant said she did not contact Mr Vella because she was not consulted about it beforehand, and also she thought she would have to work as a contractor and not an employee. 51 She later accepted that this was only an assumption on her part.52 The Applicant agreed she received correspondence53 from the QMBA54 dated 13 December 2012 attaching correspondence from Mr Vella.55 The QMBA correspondence asserted to the Applicant that, among other things, she had not acted reasonably in seeking to mitigate her loss including not accepting the alternative employment offered to her. She also accepted that it had been clarified to her more recently that the Vellacorp offer of employment was for PAYG work but she still did not seek to contact Vellacorp.56

[58] The Applicant made the point in closing submissions that when work had not been available in the past no attempts to find alternative work with another employer had been made by the Respondent. She believed the reason the Respondent contacted Mr Vella on this occasion was motivated by the possibility of her bringing an unfair dismissal application. The Applicant accepted she was paid two days in lieu of notice. 57

[59] It may well be the case that Mr Richardson did go to greater lengths to attempt to mitigate the effects of the termination on the Applicant out of a fear that she may seek to contest her termination on the basis that she believed it was connected to her complaint to the FWBC. However whether that is the case or not, I am satisfied that the Respondent complied with its obligations under the Award that applied to the Applicant’s employment to consult about her termination.

Was it reasonable in all the circumstances for the person to be redeployed within, (a) the employer’s enterprise; or (b) the enterprise of an associated entity of the employer ?

[60] There was no compelling evidence led to suggest any redeployment options were available within the employer’s enterprise or any associated entity of the employer. The evidence that was led would indicate no such options were available. On that basis I am satisfied the termination was not genuine redundancy for any reason related to s.389(2).

CONCLUSION

[61] As stated above, having concluded that this is a case of genuine redundancy I am unable to go on to consider the merits of the Applicant’s case. The Applicant has always asserted that her termination was because of her complaint to the FWBC. I agree with the submission of the Respondent and its reference to the Fair Work Bill 2008 Explanatory Memorandum for the purpose of its argument that in circumstances where genuine redundancy can be established the reasons for selection cannot be pressed to continue to argue a termination was unfair. The Explanatory Memorandum includes at paragraph 1553 the following:

“1553 Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.”

[62] While the Applicant would no doubt have preferred this decision deal with her contention regarding her complaint to the FWBC I do not intend to do so in the circumstances. I note however during the conduct of the case the Respondent provided evidence concerning its reasons for selecting the Applicant that could equally have answered her claims had I been required to do deal with them. For all of the reasons set out above the application must be dismissed and I order accordingly.

COMMISSIONER

Appearances:

Ms Klavs appeared on her own behalf.

Mr D Cameron for the Respondent.

Hearing details:

2013.

Cairns:

24 April.

 1   PR535890

 2   Transcript dated 24 April 2013 at PN1187.

 3   Transcript dated 24 April 2013 at PN983.

 4   Transcript dated 24 April 2013 at PN978.

 5   Transcript dated 24 April 2013 at PN993.

 6   Transcript dated 24 April 2013 at PN1007-1008.

 7   Transcript dated 24 April 2013 at PN1014.

 8  Transcript dated 24 April 2013 at PN972.

 9   Exhibit 2.

 10   Exhibit 3.

 11   Exhibit 5.

 12   Exhibit 447.

 13   Exhibit 6.

 14   Transcript dated 24 April 2013 at PN235.

 15   Exhibit 6.

 16   Transcript dated 24 April 2013 at PN340.

 17   Transcript dated 24 April 2013 at PN475-496.

 18   Transcript dated 24 April 2013 at PN1218-1232.

 19   Exhibit 7.

 20   Exhibit 8.

 21   Exhibit 9.

 22   Transcript dated 24 April 2013 at PN267.

 23   Transcript dated 24 April 2013 at PN352.

 24   Transcript dated 24 April 2013 at PN384.

 25   Transcript dated 24 April 2013 at PN291.

 26   Exhibit 10 at paragraph 3.

 27   Transcript dated 24 April 2013 at PN933-936.

 28   Transcript dated 24 April 2013 at PN1034.

 29   Exhibit 12 at paragraph 3.

 30   Exhibit 13 at paragraph 3.

 31  Transcript dated 24 April 2013 at PN1035.

 32   Transcript dated 24 April 2013 at PN1237.

 33   Transcript dated 24 April 2013 at PN345 and PN500.

 34   Transcript dated 24 April 2013 at PN500.

 35   Exhibit 12 at paragraph 4.

 36   Transcript dated 24 April 2013 at PN311.

 37   Exhibit 1 at paragraph 2.

 38   Transcript dated 24 April 2013 at PN546-560.

 39   Transcript dated 24 April 2013 at PN1171.

 40   Transcript dated 24 April 2013 at PN1177.

 41   Transcript dated 24 April 2013 at PN302.

 42   Transcript dated 24 April 2013 at PN315.

 43   Transcript dated 24 April 2013 at PN466-471.

 44   Transcript dated 24 April 2013 at PN831-832.

 45   Exhibit 13 at paragraph 4 and Transcript dated 24 April 2013 at PN743.

 46   Exhibit 14 and Transcript dated 24 April 2013 at PN835-844.

 47   Exhibit 15.

 48   Exhibit 16.

 49   Transcript dated 24 April 2013 at PN846-848.

 50   Transcript dated 24 April 2013 at PN1080-1082.

 51   Transcript dated 24 April 2013 at PN1089-1090.

 52   Transcript dated 24 April 2013 at PN1093 and at PN1105.

 53   Transcript dated 24 April 2013 at PN1155-1156.

 54   Exhibit 18.

 55   Exhibit 15.

 56   Transcript dated 24 April 2013 at PN1183.

 57   Transcript dated 24 April 2013 at PN1097.

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