Ms Lynette Hart v Dominos Pizza Enterprise Ltd t/a Dominos Pizza

[2017] FWC 3268

[2017] FWC 3268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739 - Application to deal with a dispute

Ms Lynette Hart
v
Dominos Pizza Enterprise Ltd t/a Dominos Pizza
(C2017/1114)

DEPUTY PRESIDENT SAMS SYDNEY, 22 JUNE 2017

Alleged dispute about a matter arising under an enterprise agreement – Delivery Driver of the Year Award – applicant wins first prize in 2015 – applicant claims data used in 2016 unreliable and unfair – applicant claimed her concerns were ignored or not addressed – applicant claims she was the 2016 winner and Dominos’ decision should be reversed – allegations of bullying, mental and emotional distress – workers’ compensation claim rejected – jurisdictional objection – award competition not run by applicant’s employer – dispute does not arise under the terms of the Agreement, the NES or the contract of employment - $15,000 prize a discretionary benefit – Commission has no jurisdiction – application dismissed.

[1] Ms Lynette Hart is a casual pizza delivery driver for Dominos Pizza Enterprises Ltd (‘Dominos’). She is employed by Pizza Boss Pty Ltd, the Dominos franchise outlet in Erina, NSW. Her employment terms and conditions are set by the SDA Dominos Pizza Agreement 2009 (the ‘Agreement’). In 2015, Ms Hart was awarded the Delivery Driver of the Year prize, having achieved the highest overall performance score of the 15,000 other drivers throughout Australia and New Zealand. Her prize was a brand new car. She was determined to win the 2016 award (of $15,000) and believed she had a good chance of winning two years in a row.

[2] The conditions of the award are set out in a document provided by Dominos. They are:

• Information listed above forms part of the rules and conditions of the program.



• The program will be in effect from January 2015.



• Management of Dominos Pizza Enterprises Limited reserves the right to alter awards criteria should any market conditions change.



• Prizes listed are indicative only and are subject to change at the discretion of Domino s Pizza Enterprises Limited.



• Where the prize includes a cheque, the prize winner can have this paid as a ‘bonus’ subject to all relevant taxes, or can opt to redeem this as a paid business trip to the value specified.

[3] Awards are made to stores and individual Managers and employees. The employee’s category Ms Hart won has the following conditions:

• To be eligible for the Delivery Driver of the Year Award, the team member must have completed a minimum of 1,000 deliveries in the calendar year.



• It is awarded to the delivery driver who has achieved the highest overall score on the Driver Leader board for the calendar year. To qualify, the driver must not have been involved in any incidents during the year. From January 2016, the data will be as recorded in the GPS system.



• Plaque and prize to the value of $15,000

[4] Throughout the year, drivers can follow their progressive performance and rankings against other drivers. Around May 2016, Ms Hart noticed her ranking on the leader board had slipped by around 100 places. She believed this was due to changes to the GPS system. GPS and is the primary source for tracking efficiency/performance. Ms Hart made a number of complaints to Head Office about her concerns that the GPS system was inaccurately displaying efficiency scores. She claimed her complaints were ignored until it was too late to affect the 2016 results. As it turned out, the 2016 prize was awarded to another driver and he received the $15,000 cash prize. Unsurprisingly, Ms Hart was bitterly disappointed, notwithstanding she came in second and received a $1000 fuel voucher. Ms Hart believed not only that the GPS system inaccurately calculated efficiency scores (presumably affecting her ranking), but also that the driver who won the award was not eligible to enter the competition because:

(a) he was a cyclist and not a driver; and

(b) he did not work the full year, but only commenced in May 2016.

[5] On 1 March, 2017, Ms Hart filed an application, pursuant to s 739 of the Fair Work Act 2009 (‘the Act’), seeking to have the Fair Work Commission (the ‘Commission’) deal with a dispute under the dispute settlement provision of the Agreement. Ms Hart set out what the dispute was about as follows:

(a) Dominos Pizza Enterprises Ltd proposes to pay a performance based bonus of $15,000 to their top driver for 2016. I believe the results to be incorrect as the data collected to determine the top driver is incorrect;

(b) I made Dominos aware of the errors in the system constantly for the past 10 months and they have refused to amend any of the errors to date;

(c) I believe adamantly that should these errors not have occurred, that I would be in first place and receiving the $15000 bonus;

(d) This is not the first time that Dominos have recognized someone else by mistake. It happened twice the previous year, and at that time I was allowed to prove the errors in their data and they did eventually award me first place for the whole of 2015;

(e) Dominos is therefore in breach of the Enterprise Agreement and Dominos Code of Conduct 2010, for not following the correct grievance procedures, for not resolving my grievances and for not ensuring that the records are accurate; and

(f) I have proof to substantiate all my claims as I have a record of the whole years data and my analysis of it.

[6] Ms Hart sought the following relief from the Commission:

(a) that all the errors in my records are amended;

(b) that the scoring system is fair and accurate for everyone; and

(c) that the results of the Employee Award are reassessed based on corrected data and the correct employee is recognized and awarded the $15,000 bonus.

[7] On 17 March 2017, Dominos (or the ‘respondent’) made an application, pursuant to s 587 of the Act, for an order dismissing Ms Hart’s application as beyond the Commission’s jurisdiction. Dominos claims that:

(a) The grievance procedure under cl 29 of the Agreement is limited to disputes arising under the Agreement and the NES.

(b) Ms Hart’s dispute concerns the outcome of a competition run by an entity which is not her employer.

(c) The dispute does not concern a matter arising under the Agreement or the NES as required by the grievance procedure, and therefore the Commission has no jurisdiction to deal with the application.

(d) Further and in the alternative, as Dominos is not Ms Hart’s employer, the dispute is not a matter which pertains to the employment relationship between Ms Hart and her employer and does not relate to Ms Hart’s employment or the terms of her employment.

[8] Notwithstanding Dominos’ jurisdictional objection the Commission convened a telephone conference on 27 March 2017 to explore whether the dispute could be resolved through conciliation. However, no agreement could be reached. The Commission thereafter issued directions for the filing and service of submissions and any evidence relied upon in regards to Dominos’ dismissal application. By consent, the matter was agreed to be determined ‘on the papers’.

Case for Dominos

[9] Dominos submitted that the dispute concerns the outcome of the competition run by the respondent which is not Ms Hart’s employer. Her employer is Pizza Boss Pty Ltd ACN 124228 (‘Pizza Boss’), a franchisee of the respondent.

[10] Dominos sought an order, pursuant to s 587 of the Act, to dismiss Ms Hart’s application on the grounds that:

● the competition was not run by Ms Hart’s employer (Pizza Boss);

● the dispute does not pertain to a matter arising under the NES or the Agreement;

● the dispute does not arise in the context of the employment relationship;

● the Commission has no jurisdiction or power to grant the orders sought by Ms Hart; and

● the $15,000 prize is a discretionary benefit which does not form part of the employment relationship.

[11] Dominos set out the background to Ms Hart’s grievance as follows. The winner of the prize is determined through an assessment of multiple criteria, including:

● the number of deliveries made by the driver;

● efficiency and speed measured through the GPS tracking records; and

● customer feedback.

[12] Dominos expressly rejected Ms Hart’s assertion that the GPS calculations were inaccurate. It referred to the numerous and repetitive exchanges between Ms Hart and the respondent from May 2016 to February 2017, during which various documents she had requested were provided. Dominos conducted multiple internal reviews of the collected data, all of which confirmed that the data and calculations were accurate and consistently applied to all drivers. Dominos put that even if the applicant’s claims about error were correct, it would have made no difference to the outcomes because the methodology was consistently applied to all drivers. In any event, the main reason why Ms Hart did not win first prize, was not the GPS calculations, but the lower customer feedback scores she had achieved compared to the winner.

[13] Dominos submissions set out the terms of cl 29 of the Agreement and the provisions of s 587 of the Act. It was argued that the dispute application was both frivolous and had no reasonable prospects of success. Reliance was had on a decision of Spencer C in which the Commissioner dismissed a dispute application in respect of commission payments which did not form part of the employment contract and that the commission payments in that case, had in any event, been correctly calculated; see: Dowie v Brookwater Realty Pty Ltd [2014] FWC 531 (‘Dowie’) at paras [68] – [86]. Dominos submitted that in this case, the grounds for dismissing the matter were even more compelling. Ms Hart had provided no basis on which she is entitled to the prize, either under the terms of her employment or the Agreement. Further, Dominos submitted that the Commission does not have the jurisdiction to grant the relief sought by Ms Hart; that is the result of the competition be overturned by awarding the first prize to her.

Ms Hart’s Case

[14] Ms Hart submitted that her dispute concerned the bullying and unfair treatment of her over the outcome of the incentive program run by Dominos. The dispute arose due to errors in the GPS monitoring. This resulted in an incorrect outcome. The bulk of her submissions dealt with the competition, the numerous and repetitive complaints she had made about the methodology used, her claims that Dominos ignored her complaints, and her criticism of the winner’s eligibility to enter the competition. While this is a useful guide to what the dispute is about, these submissions do not assist the Commission in answering the jurisdictional objections of the respondent. Accordingly, it is unnecessary to set these submissions out in full.

[15] In short, Ms Hart believed she was entitled to the first prize of $15,000, as the eventual winner was a bike rider who did not earn the bonus. He was not even qualified to enter the competition. She claimed a random sample of other employees agreed with her view.

[16] Ms Hart submitted that despite her queries and concerns, Dominos failed to address and rectify her ‘workplace hazards’ (the GPS errors) in a timely manner which adversely affected her mentally, emotionally and financially and eventually caused her a psychological workplace injury. She claimed to have been bullied by Dominos. Dominos had acted negligently towards her and all of its 15,000 employees by:

a. Ignoring her emails regarding the errors in the GPS data which affected 15,000 of their employees;

b. Lying. Admitting there were issues with the data in May 2016, and then later denying there were any issues;

c. Unreasonably delaying the rectification of the data for over 6 months;

d. Drip-feeding the applicant useless and irrelevant information over a period of 8 months hoping she would go away;

e. Failing to use logic and common sense to recognise that it was humanly impossible for thousands of drivers to suddenly score a hustle time of less than 20 seconds;

f. Failing to investigate her concerns accurately and in a timely manner;

g. Refusing to continue to communicate with her and investigate her concerns before the award period had even finished;

h. Deliberately and knowingly acting in a manner which they knew would affect her mentally, emotionally and financially; and

i. Ignoring her analysis of the data which proved that their results were incorrect.

[17] Ms Hart included in her evidence a statement by Mr Peter Ryan, Dominos National Learning and Development Manager, which had been made in relation to the insurer’s investigation of Ms Hart’s claim in respect of her alleged workplace injury. She believed this statement was ‘full of lies and defamation and constitutes a further act of bullying’. Ms Hart’s Workcover claim was denied on 1 May 2017. It is currently being reviewed. Ms Hart said she is unable to return to work due to her distress and mental illness.

[18] Finally, Ms Hart maintained that the respondent was in breach of the:

a) Workplace Health and Safety Act;

b) its own Code of Conduct and Grievance Procedures; and

c) its own Equal Opportunity and Anti-Discrimination policies.

[19] She sought to have the Commission take ‘any necessary action to address the issues raised and make any orders possible to rectify and prevent any further psychological harm to the applicant’.

Respondent’s reply

[20] While submitting that most of Ms Hart’s allegations and submissions were not relevant to the jurisdictional questions to be determined by the Commission, Dominos made a number of submissions in reply.

[21] It was said that Ms Hart was not covered by the 2009 Agreement, as it does not cover delivery drivers. In any event, although Ms Hart’s employment was covered by the 2001 Agreement, the grievance procedure under both Agreements was in almost identical terms.

[22] Dominos put that the competition was not limited to motor vehicle drivers. The competition was open to all delivery drivers, regardless of length of service or vehicle used. The only qualification was that the team members had completed a minimum of 1000 deliveries in a calendar year. The 2016 prize winner satisfied all the requirements. Dominos had conducted multiple reviews of the data and had confirmed it was accurate and applied consistently. In any event, irrespective of the GPS data, Ms Hart would not be entitled to the 2016 prize primarily because she had lower customer feedback scores compared to the winner.

[23] Dominos denied liability in respect of Ms Hart’s workers’ compensation claim, because she was never an employee of the respondent. It was noted that her claim has been rejected on the basis that her alleged psychological injury arose from reasonable management action.

CONSIDERATION

[24] Ms Hart lodged a workers’ compensation claim on 17 March 2017, claiming psychological injury in a direct response to the circumstances leading to her failure to win first prize in the 2016 bonus competition. While her injury was acknowledged, it was rejected by the insurer on 1 May 2017, on the basis that ‘the actions of [the applicant’s] employer were reasonable (pursuant to Section 11A of the Worker’s Compensation Act 1987) with respect to the provision of employment benefits (Dominos Driver of the Year Prize)’. I raise this matter because I note that in her original s 739 application, there is no mention at all of her claim of mental injury.

[25] Be that as it may, I accept she is bitterly disappointed at not winning first prize, and that she deeply resents both the process and the outcome. Her numerous and repetitive communications with Dominos is indicative of the level of her disappointment and profound sense of grievance, which I accept has had an effect on her psychological wellbeing. Whether this had been caused by the actions/inactions of the respondent is not for me to say. By lodging her workers’ compensation claim under a separate statutory regime, which does not come within the Commission’s jurisdiction, Ms Hart has chosen the appropriate mechanism for that matter to be dealt with to finality. I note her claim is under review. It would be beyond the Commission’s jurisdiction, and improper for the Commission to ‘second guess’ the processes and possible outcomes under a statutory framework specifically designed for the purposes of addressing her worker’s compensation claim. To the extent that Ms Hart sought to have the Commission take non-specific steps to address her worker’s compensation issues, this is not possible and must be rejected. It is not a consideration arising in the determination of Dominos’ jurisdictional objection to this dispute.

Relevant statutory provisions

[26] Section 739 of the Act reads as follows:

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

[27] Section 587 of the Act is relied on by Dominos. It reads:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

The Dispute Settlement Procedure (‘DSP’)

[28] The Agreement’s DSP is found at cl 29. It reads as follows:

29. GRIEVANCE PROCEDURE

29.1 Consistent with the objectives, philosophies and intent of this Agreement, the following procedure shall be utilised to ensure that all Employee grievances are dealt with appropriately:

29.2 In the first instance, the matter shall, wherever possible, be discussed by the concerned Employee and their immediate supervisor with the purpose of achieving a satisfactory outcome.

29.3 If the grievance or dispute is not resolved in the first instance, the Employee or the Employee's representative - may refer the matter to the next higher level of management for discussion. Such discussion should, if possible, take place within 48 hours of the request by the Employee or the employee's representative.

29.4 Should the issue remain unresolved, an official from the Union and a senior representative of the Employer will become involved.

29.5 Either party should not unreasonably delay each stage of the grievance procedure. Should the next level representative of either the Union or Employer not be available for more than 5 working days the matter may be referred to the next level of management or union for resolution.

29.6 Until the matter is determined, all work shall continue in accordance with the status quo that existed prior to the matter in dispute arising, or by other agreed arrangements unless the grievance poses a threat to health or life of the Employee concerned or other Employees. No party shall be prejudiced as to the final settlement by the continuance or deferment of the work in accordance with this subclause.

29.7 If the matter still remains unresolved following the above procedure, either party may refer it to Fair Work Australia for conciliation and/or arbitration. Where this happens and an Employee has been suspended on pay the Union and the Employer must agree on the action to be taken with regards to the suspension.

29.8 An Employee will be given an opportunity to have a union delegate/official present during any counselling or dispute resolution meeting.

29.9 An Employee may be suspended from work on full pay while the grievance or dispute is being resolved.

[29] Although cl 29 is headed ‘Grievance Procedure’ it seems clear that its terms are intended to apply to both individual employee grievances and more wider dispute processes involving parties to the Agreement, including Unions. As there is no other express provision dealing with dispute settlement procedures, and as all enterprise agreements must include a DSP, it may be comfortably accepted that cl 29 applies to disputes and grievances brought by individual employees, pursuant to s 739 of the Act.

[30] More importantly, however, cl 29 is to be read in conjunction with an undertaking provided to Asbury C (as she then was) when the Deputy President approved the Agreement on 25 May 2010; see: [2010] FWAA 3943. That undertaking became a term of the Agreement, pursuant to s 191 of the Act. It reads as follows:

‘On 28 April 2010, the Employer provided an undertaking as follows:

i. Notwithstanding the provisions of the clause 3 of the Agreement, the National Employment Standards (NES) will operate from 1 January 2010 with respect to employees covered by the Agreement;

ii. The grievance procedure in clause 29 of the Agreement is a process by which disputes about matters arising under the Agreement and in relation to the NES will be settled. Employees may be represented at any stage of the grievance procedure;

iii. Clause 50 of the Agreement does not provide an entitlement to enter premises other than in accordance with Part 3-4 of Chapter 3 of the Fair Work Act 2009 (Cth).

These undertakings form part of the Agreement and are contained on the file in relation to this matter.’

[31] Thus, the DSP limits the role of the Commission to determining a dispute only:

(a) about matters arising under the Agreement; and/or

(b) in relation to the NES (s 739(3) of the Act).

[32] With this in mind I now turn to this dispute lodged by Ms Hart against Dominos. The first step is to properly characterise the nature of the dispute. In Schweppes v United Voice 218 IR 251, Jones C (as she then was), said at para [15]:

‘there is no question that FWA must be satisfied, before exercising its powers under s. 739 of the Act, that it has jurisdiction to do so. This will require being satisfied that the alleged dispute can be characterised as falling within the relevant terms of an Agreement . It may also require FWA being satisfied that the clause of the Agreement is a permitted matter within the meaning of the Act.’ (References omitted)

[33] In Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd[2016] FWC 2959, Saunders C helpfully set out the relevant legal principles to be applied when considering the terms of a DSP in an enterprise agreement. I respectfully adopt the Commissioner’s approach, which I set out below:

‘[6] The test under s.739 of the FW Act is whether the dispute settlement procedure in the enterprise agreement “requires or allows” the Commission to deal with the dispute. It is therefore necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it.

[7] The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”

[8] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction. Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.

[9] It is also important to note that the character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute. However, the relief sought may cast light on the true nature of the dispute in some cases.

[10] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant in such circumstances will depend on the limitation in s.739(5) of the FW Act and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the Enterprise Agreement to which the dispute relates.’ (Footnotes omitted)

[34] In my view, there is little doubt that the proper characterisation of this dispute is Ms Hart’s claim that she should be awarded the 2016 prize, because she had lodged a grievance that Dominos had applied incorrect data to her scores and the eventual winner was ineligible to be included in the bonus competition.

[35] Dominos submitted that as it is not the employer of Ms Hart, her grievance about a competition run by Dominos, and not her direct employer, cannot pertain to the employment relationship. This argument raises the emerging and controversial issue as to the relationship between a franchisor and its franchisees and the nature of that relationship as it bears on employees of the franchisee. Ms Hart, of course could not have been eligible to participate in a Dominos run competition (not could anyone else), unless she was a driver delivering products produced and supplied under the Dominos label and banner; albeit by a franchisee company. In addition, the Agreement (it is not relevant, for present purposes, if the applicable Agreement is the 2001 or the 2009 Agreement) is deemed to cover Dominos, its franchisees (the employers), the Union and all the employees of the employers (cl 4). However, with some sense of relief, it is unnecessary for me to determine the employer identity question, as I am satisfied Ms Hart’s application should be dismissed on other, more compelling grounds.

[36] It is obvious that the NES does not include any reference to incentive schemes, let alone minimum standards or conditions relevant to such schemes. It is also apparent that there is no clause or reference to a policy dealing with incentive or productivity schemes in either the 2001 or the 2009 Agreements. In my view, in order for s 739 of the Act to be enlivened, there would need to be a reference to a specific clause in the Agreement empowering the Commission to deal with, at the very least, incentive schemes generally or specifically. No such clause exists. Incentive schemes are not mentioned in the respondent’s Code of Conduct or Anti-Discrimination and Equal Employment policies. They too, are not relevant. In addition, the Act’s requirements on employers to keep accurate records (s 535), does not extend to discretionary incentive competitions. There can be no argument that the competition, its rules, eligibility, methodology and outcomes sit outside any Act, industrial instrument, contract of employment or Company Policy and operate at the respondent’s absolute discretion. This means that Dominos could decide to discontinue the competition, at its discretion, and arguably, at any time. To further illustrate the discretionary nature of the competition, the rules include conditions that no award may be made in any of the categories where there is no one eligible and prizes are ‘indicative only and are subject to change at the discretion of Dominos’.

[37] The fact the DSP can only be invoked if the matter in dispute is in relation to the NES or a matter arising under the Agreement and no such connection exists, is sufficient to determine this application by dismissing it for want of jurisdiction. However, I would add for completeness, that in my view, there is no contractual term, implied or otherwise, with Ms Hart or any other of its 15,000 drivers, which requires Dominos to alter or change the competition, its methodology or its final outcomes, which is susceptible to challenge by eligible employees under the Agreement. Ms Hart’s allegation that Dominos had breached the Grievance Procedure in the Agreement amounts to no more than a claim that unless Dominos agreed with her, the Grievance Procedure had been breached. This is a misconception on her part. Moreover, there is nothing to suggest that the competition is mandatory for all Drivers. It may be safely assumed that the vast majority of Drivers work to the best of their ability and are not focussed - let alone obsessed - with where they are progressively positioned on the leader board and where they might end up at the end of the competition.

[38] When viewed in this light, it is incomprehensible that a dispute about a discretionary employer sponsored competition is capable of being characterised as a dispute about the NES, or is a matter arising under the Agreement. In short, the dispute is not about a matter which enlivens s 739 of the Act.

[39] Even if I am wrong about this conclusion, I do not consider the Commission is vested with the jurisdiction or power to grant the relief sought by Ms Hart; to overturn the result of the competition by ordering that Ms Hart is the winner of the 2016 competition. This would be a bizarre and entirely inappropriate outcome. In addition, assuming the Commission had the requisite jurisdiction, having reviewed all the material filed in this matter, I would dismiss the application on its merits.

[40] I order accordingly.

DEPUTY PRESIDENT

Final written submissions:

For the applicant, 17 May 2017.

For the respondent, 23 May 2017.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR593766>