Ms Tammy Gill v Rio Tinto Aluminium Limited T/A Rio Tinto Weipa
[2017] FWCFB 4540
•20 SEPTEMBER 2017
| [2017] FWCFB 4540 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Rio Tinto Aluminium Limited T/A Rio Tinto Weipa
(C2017/4230)
DEPUTY PRESIDENT GOSTENCNIK |
|
Appeal against decision [2017] FWC 2903 of Commissioner Hunt at Brisbane on 7 July 2017 in matter number U2016/9988; notice of appeal lodged outside of time prescribed; further period allowed; no arguable case of error; public interest not enlivened; permission to appeal refused.
Introduction
[1] Ms Tammy Gill (Appellant) lodged a Notice of Appeal, for which permission is necessary, against a decision 1 (Decision) of Commissioner Hunt dismissing the Appellant’s application under s.587 of the Fair Work Act 2009 (Act), relating to the Appellant’s application for an unfair dismissal remedy. Prior to her dismissal on 15 July 2016, the Appellant had been employed by Rio Tinto Aluminium Limited t/a Rio Tinto Weipa (Respondent) as a Mine Operator at Rio Tinto’s Weipa Mine. The Appellant commenced employment with the Respondent on 6 August 2007. She was dismissed for reasons that relate to the Appellant’s failure to meet the safety and performance expectations of her role in respect of two incidents occurring on 23 and 24 October 2015.
[2] The Notice of Appeal was lodged by the Appellant on 3 August 2017. The decision the subject of that notice was made on 7 July 2017. Rule 56 of the Fair Work Commission Rules 2013 (FWC Rules 2013) deals with appeals and the time period for instituting appeals. That rule relevantly provides that an appeal must be instituted within 21 days after the date of the decision appealed against. The appeal was instituted six days outside of the time prescribed. Rule 56(2)(c) confers a discretion on the Commission to extend the time within which the appeal is to be lodged.
[3] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound reasons for setting a limit to the time for bringing an appeal. Time limits in relation to the institution of appeals must be treated seriously and should only be extendedwhere there are good reasons for doing so.
[4] The authorities 2 indicate that the following matters are relevant in considering whether to exercise the Commission’s discretion under Rule 56(2)(c):
- whether there is a satisfactory reason for the delay;
- the length of the delay;
- the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
- any prejudice to the respondent if time were extended.
[5] In broad terms, the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal. 3 We consider these matters below.
[6] In support of her application to extend time for the institution of the appeal, the Appellant says that an extension of time to file her appeal should be granted because she lodged the appeal on 3 August 2017, that being, 21 days after a correction to the original decision was issued by the Commissioner. The correction to which the Appellant refers amended [152] of the Decision so that the reference in that paragraph to “s. 587” would read “s. 587 (1) (c)”. The amending document also provided that the “attached document replaces the document previously issued with the above code on 7 July 2017”. The amendment was dated 13 July 2017.
[7] We accept that the notation in the amending document is apt to confuse, suggesting as it does that the whole of the decision issued on 7 July 2017 is replaced by the amending document. This is so even though as is clear from correspondence to the Appellant from the chambers of Deputy President Clancy, dated 26 July 2017 advising that the Commissioner’s decision was made on 7 July 2017 and that if she wished to appeal that decision, rule 56(2)(a) of the FWC Rules 2013 required that she lodged a Notice of Appeal with the Commission within 21 calendar days after the date of the decision. The correspondence advised that such a notice would need to be lodged by Friday, 28 July 2017. The correspondence helpfully attached a form F7, being a Notice of Appeal. This correspondence notwithstanding, we accept in the present circumstances that the Appellant, who was unrepresented, has provided a satisfactory explanation for the delay given the confusing terms of the amending document.
[8] The length of the delay was quite short and the Notice of Appeal was lodged within 21 days of the date the Appellant incorrectly understood to be the date of the decision by reason of the ambiguous notation. There is also no discernible prejudice to the Respondent if an extension of time is granted.
[9] Balanced against this is that we consider, for reasons that will become apparent below that the prospect of the Appellant being granted permission to appeal are very low.
[10] In the circumstances however, and on fine balance, we have decided to allow the Appellant a further period within which to lodge the notice of appeal. We extend the date by which an appeal may be lodged against the Decision to 3 August 2017.
[11] We now turn to consider the permission to appeal application.
The Commissioner’s Decision
[12] The circumstances in which the Commissioner came to consider whether to dismiss the Appellant’s application for an unfair dismissal remedy arose out of a purported settlement agreement that had been made at the conclusion of a member assisted conciliation conference conducted by Commissioner Booth on 6 February 2017. The Appellant was legally represented at the conference. The Appellant disputed that a settlement agreement had been reached and wanted to pursue her unfair dismissal remedy application. On 17 March 2017, the Respondent applied to the Commission for an order dismissing the Appellant’s unfair dismissal remedy application pursuant to s.399A(1)(c) of the Act, or alternatively, under s.587 of the Act.
[13] The Appellant’s solicitor was called to give evidence and was cross-examined by the Appellant. The Commissioner summarised the issue that she had to determine arising out of the evidence before her and the competing contentions of the Appellant and the Respondent as to the existence of a settlement agreement. The Commissioner observed:
“[122] The core of the issue to be determined is did Mr Tiley have valid instructions from Ms Gill to enter into the Settlement Agreement. Ms Gill’s contention is that Mr Tiley did not on three distinct grounds:
● The amount of $18,000 versus Ms Gill’s view that the amount might have been 18 weeks’ pay;
● Ms Gill’s view that Mr Tiley promised her a 24 hour cooling-off period for her benefit; and
● The settlement terms including a notice of discontinuance. 4”
[14] The Commissioner then proceeded to make certain findings. In doing so, the Commissioner expressed a preference for the evidence of the Appellant’s solicitor to that of the Appellant and the reasons for that preference. The Commissioner reasoned as follows:
“[127] I am satisfied Mr Tiley did have Ms Gill’s instructions to make the offer of $18,000. Ms Gill’s evidence that she was not listening when the settlement figures were being discussed and had ‘switched off’ could not have been known to Mr Tiley or to Mr Smyth. I do not accept Ms Gill said to Mr Tiley or to Mr Smyth any words to the effect that she did not have capacity to continue the negotiations. While Ms Gill might have been experiencing a busy, noisy household with young school-age children requesting her attention during parts of the telephone calls she was having with Mr Tiley and Mr Smyth, I do not find Ms Gill informed her representatives that she was without capacity to provide instructions.
[128] Further, I accept Mr Tiley’s evidence that if he considered Ms Gill did not have capacity to enter into a binding agreement, he would have sought to end the MAC. As an experienced practitioner engaged by the CFMEU, and assuming continued engagement by the CFMEU, it would have, in fact been in Mr Tiley’s interests for the application to continue to arbitration due to the legal fees Hall Payne Lawyers could have charged the CFMEU.
[129] With respect to Ms Gill’s assertion that she was assured by Mr Tiley that agreement had been reached on a 24 hour cooling-off period for her benefit, I have determined Ms Gill understood Mr Tiley’s recommendation on this issue.
[130] I am satisfied Ms Gill genuinely believed the reference to the 24 hour period that Mr Tiley was going to discuss with Commissioner Booth to inform the Rio Tinto Party was for her benefit. It is clear there is some room from what Ms Gill understood to be the purpose, and what an experienced solicitor understood to be the purpose of the 24 hour period.
[131] The evidence of Mr Smyth and Mr Tiley is aligned; the purpose of the 24 hour period was to strategically put some pressure on Rio Tinto to convince them that this latest offer of $18,000 was Ms Gill’s lowest offer, and after protracted discussions, the matter should be resolved that afternoon.
[132] I am satisfied Mr Smyth or Mr Tiley initiated a discussion with Ms Gill as to a 24 hour period. Equally I am satisfied Ms Gill did not initiate the discussion of a 24 hour period. Once a 24 hour period had been flagged by Mr Smyth or Mr Tiley, Ms Gill was attracted to this idea, believing it to be for her benefit. I am satisfied there was a communication breakdown between Mr Tiley and Ms Gill at this point in time.
[133] I am, however, satisfied that Mr Tiley held a genuine belief that the instructions from Ms Gill were in agreement with his recommendation; to put the offer of $18,000 to Rio Tinto, and to leave the offer open, if not immediately accepted, for a period of 24 hours.
[134] Further or in the alternative, I accept Rio Tinto’s submission that Mr Tiley had the implied and ostensible authority to enter into the Settlement Agreement on Ms Gill’s behalf.
[135] Ms Gill’s contention that Mr Tiley was not her solicitor for the purposes of the proceedings is misconceived. Hall Payne Lawyers filed a notice of representative commencing to act on her behalf early on in the proceedings and had carriage of Ms Gill’s matter for the purposes of filing her material and participating in the MAC. In cross-examination, Mr Tiley confirmed both Ms Gill and the CFMEU were his clients for the purposes of the proceedings, provided there was no conflict between the two of them.
[136] If Ms Gill had intended for Mr Tiley’s capacity to compromise on the proceedings (by way of making offers of settlement) to be limited or restricted, it was necessary for Ms Gill to have both given that instruction to Mr Tiley and for Mr Tiley to have communicated it to Rio Tinto. There is no evidence that Ms Gill did give Mr Tiley instructions of that kind and even if she did, Rio Tinto was not on notice of such limitation or restriction.
[137] I do not accept Ms Gill’s evidence that upon Mr Tiley recounting the offer put and accepted by the Rio Tinto Party in the presence of Commissioner Booth, Ms Gill was listening and waiting for the reference to the 24 hour cooling-off period. Mr Smyth’s evidence is that he doesn’t recall this occurring, although I note his evidence that he was, during this time, driving from place to place while lawfully one his phone. There is no reference to this event in Mr Tiley’s notes, nor the notes of Ms Mayr or Ms Forrest.
[138] It is Ms Gill’s contention that she suspects Mr Tiley did not actually make a subsequent phone call as she discussed, and that is why there would not be a reference to this being cleared up in Ms Mayr and Ms Forrest’s notes. Ms Gill contends a suspicion over Mr Tiley’s conduct.
[139] While Ms Gill is adamant that she did give this particular instruction to Mr Tiley, and Mr Tiley exited the call with her and Mr Smyth, and then resumed the telephone call to assure her he had acted on her instructions, I do not accept this occurred. I am satisfied that Mr Tiley was of the view a valid settlement had been reached in the tripartite conversation with Commissioner Booth and the Rio Tinto Party. There would be no utility in Mr Tiley seeking a further conference to announce that Ms Gill wanted a 24 hour cooling-off period over the Settlement Agreement just reached.
[140] It is clear that there was no further tripartite discussion, and accordingly Ms Gill effectively asks the Commission to find the following:
● Mr Tiley stated to Ms Gill and Mr Smyth that he will end the call with them, having settled for 18 weeks’ pay (and not $18,000), and make a call to Commissioner Booth and the Rio Tinto Party;
● Mr Tiley did not make such a call; and
● Mr Tiley returned to Ms Gill and Mr Smyth and misrepresented that he had just again spoken with Commissioner Booth and the Rio Tinto Party to obtain for Ms Gill’s benefit a 24 hour cooling-off period over the in-principle agreement reached.
[141] I do not accept Ms Gill’s submission for the following reason. Firstly, Ms Gill was incorrect about Mr Tiley’s report of the settlement amount reached at this very point in time, and accordingly her evidence on these important issues is less than satisfactory. Secondly, while it is true that advocates and skilled advocates before the Commission may sadly not always be truthful in all Commission matters, Mr Tiley has a substantial responsibility to the Commission as a solicitor and as a regular representative before the Commission.
[142] I do not find, on the balance of probabilities that in Mr Tiley’s case, he made the representations to Ms Gill as claimed by her. To do so would require me to determine Mr Tiley had purposely misinformed Ms Gill that he held a further meeting with Commissioner Booth when he knew that not to be true. Again, on the balance of probabilities, I do not find Mr Tiley would have put at risk his practising certificate on this issue in a jurisdiction well-walked by Mr Tiley.
[143] On the third issue as to whether Mr Tiley was satisfied Ms Gill knew the consequences of reaching a settlement agreement with Rio Tinto, I accept Mr Tiley did not canvass with Ms Gill expressly the issue of filing a notice of discontinuance in these proceedings once the settlement had been completed. In questioning by me on this issue, the following exchange occurred:
Cmr: We'll have Mr Tiley say what those terms are, thank you.
…
Mr Tiley: Telephone in FWC with Ian Humphreys. Offer accepted. 18,000 gross to the applicant. Resignation, statement of service, prepare deed to Tiley, usual terms (within 48 hours.) Discontinuance, LMT, mutual terms as to confidentiality, non-disparagement, release and bar.
Ms Gill: Mr Tiley, can you repeat the second last term, please?
Mr Tiley: Discontinuance?
Ms Gill: That was never discussed with me, was it?
Mr Tiley: The - all of the discussions that occurred in conciliation on the 6th were premised on attempting to reach an agreement which would see the proceeding discontinued by you, so yes.
Ms Gill: I disagree: it was never mentioned and the first time I became aware of it was during these statements. You didn't state that before when I queried you before and yet you stated it now, checking your notes and I thought that would be part of - as you state - usual terms of agreed settlement. There's a bit of inconsistency there?
Mr Tiley: I didn't state discontinuance being a usual term of settlement because self-evidently any settlement would come with discontinuance, a fact of which I'm comfortable you were well aware on 6 February based on our discussions and the instructions that you provided to me.
[144] I do not accept Ms Gill would have been blind to the consequences of reaching an agreement with Rio Tinto to resolve the application. Ms Gill is not a young, naïve woman with relative inexperience in the workplace. I do appreciate Ms Gill did not have much time with Mr Smyth and Mr Tiley prior to the commencement of the MAC, but it would have abundantly clear to Ms Gill that should she reach an agreement with Rio Tinto on an amount to resolve the unfair dismissal application, the application would need to be withdrawn. She could not reasonably expect to be offered a substantial amount a short time out from a three-day hearing without the application being withdrawn by her on reaching agreement as to the settlement terms.
[145] I am satisfied all other ‘usual’ terms that were ultimately reached including the requirement for confidentiality and non-disparagement were sufficiently explained to Ms Gill and she agreed to these terms as part of the offers made by Mr Tiley on her behalf. 5 ” [Endnotes omitted]
[15] Next the Commissioner proceeded to set out her conclusions having regard to the findings of fact that she had earlier made as follows:
“[146] In Masters v Cameron the High Court held that when parties reach agreement on terms of a contractual nature and agree that the negotiations will be dealt with by a formal contract, that the case may belong to any of three categories:
(1) the parties have agreed on all terms and intend to be immediately bound to perform those terms “but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect”; or
(2) the parties have agreed on all terms and intend no departure from or addition to that which their agreed terms express or imply, “but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document”; or
(3) the parties do not intend “to make a concluded bargain at all, unless and until they execute a formal contract.”
[147] In the first two categories above the High Court held there was a binding contract.
[148] I find the Settlement Agreement was properly made between Ms Gill and Rio Tinto, and the Settlement Agreement falls within the umbrella of the first category described in Masters v Cameron. Accordingly, a binding settlement agreement was reached at the conclusion of the MAC.
Conclusion
[149] I am not satisfied the Settlement Agreement was concluded. Accordingly I decline to dismiss the Application pursuant to s.399(A)(1)(c).
[150] I am satisfied there should be no deviation from the principle determined in Thomas v Symbion Health. I am satisfied the present matter before the Commission has no reasonable prospects of success because the parties have entered into the Settlement Agreement.
[151] In accordance with the Settlement Agreement, payment of $18,000 gross [less relevant taxation] should be payable by Rio Tinto to Ms Gill within 7 days of this decision. 6” [Endnotes omitted]
Appeal grounds and public interest
[16] The grounds of appeal stated in the Appellant’s Notice of Appeal are as follows:
1. the Decision contains significant errors of fact;
2. the Appellant’s evidence and material appears to have been overlooked by the member at first instance;
3. the legal principles applied appear disharmonious compared to other decisions of similar matters;
4. unreliable, inconsistent witness and affidavits relied upon;
5. bias; and
6. unsubstantiated decision.
[17] These grounds of appeal receive elaboration in the Annexure filed with the Notice of Appeal and in the written submissions filed by the Appellant in support of her application for permission to appeal.
[18] The Appellant does not raise any matters in her Notice of Appeal that concern public interest, although as is apparent from the following extract from the transcript during the hearing of the Appellant’s application for permission to appeal, the Appellant maintains that because the decision, the subject of the appeal, was one made pursuant to s.587 of the Act, the limitation in s.400 of the Act that applies to unfair dismissal related appeals does not apply in this case:
“DEPUTY PRESIDENT GOSTENCNIK: Ms Gill, as I understand your submission on this point, you say that the provision in section 400 which prevents the Commission from granting permission to appeal, unless it's satisfied that it is in the public interest to do so, doesn't apply here because this was not a decision in relation to an unfair dismissal matter, but rather, one which engaged with another part of the Act in which section 587 appears. That's the thrust of that submission. Is that right?
MS GILL: Thanks for that. That sounds correct, yes.
DEPUTY PRESIDENT GOSTENCNIK: Whether it sounds correct, is not really relevant. Is that the point that you're making?
MS GILL: Yes, when I was reading the information sheet and stuff, it kept stating, as it states here - I had it this morning - an appeal from an unfair dismissal decision (this is paragraph 2 from directions) but I - if the decision wasn't - well from where I'm standing, the decision wasn't from an unfair dismissal hearing matter, it was a different matter altogether. I wasn't relying on that to have permission. I was more so relying on the question of fact from the information sheet. Appeal made on a question of fact. 7”
Consideration
[19] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 8 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[20] Notwithstanding the Appellant’s submission noted above, this appeal is one to which s.400 of the Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[21] The decision that is the subject of the Notice of Appeal is a decision dismissing an application for an unfair dismissal remedy, that is, an application for an order under Division 4 of Part 3 – 2 of the Act. Section 399A of the Act contains a power to “dismiss an application for an order under Division 4 . . .” but it is not the only source of power under which an application for such an order may be dismissed. As the note immediately underneath s.399A(1) makes clear “. . . another source of power of the FWC to dismiss applications for orders under Division 4 . . .” is to be found in s.587 of the Act. Thus, although s.587, the source of the power that was exercised, is to be found elsewhere (as is the case with many other procedural and substantive powers that might be exercised in the course of an unfair dismissal remedy application hearing) the decision that is the subject of this appeal, was a decision to dismiss the application for an order under Division 4 of Part 3 – 2 of the Act and was thus a decision under that Part for the purposes of s.400(1).
[22] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 9 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.10 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 11
[23] It will rarely be appropriate to grant permission to appeal unless an arguable case of appellable error is demonstrated. This is so because an appeal cannot succeed in the absence of appellable error. 12 However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.13
[24] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 14
[25] We are not persuaded that any of the grounds of appeal on which the Appellant relies raise any issue of importance or general application nor do any of those grounds disclose an arguable case of error. Our reasons for this conclusion follow below.
[26] The first two grounds of appeal appear to us to do no more than take issue with the Commissioner’s finding of fact and make a bare allegation that some of the Commissioner’s findings were erroneous or were significant errors of fact. The complaint in substance is a complaint that the Commissioner preferred the evidence of the Appellant’s solicitor as to the settlement to that given by the Appellant. Nothing in the Appellant’s submissions persuade us that there is an arguable case of appellable error in relation to the factual findings made by the Commissioner.
[27] As to the remaining grounds of appeal, the Appellant’s Notice of Appeal and her outline of submissions are unclear, inconsistent and in parts difficult to follow. The errors alleged by the Appellant do not provide a reason for permission to appeal to be granted. She has not identified any evidence before the Commission which was not considered by the Commissioner nor has she identified how the legal principles applied appear disharmonious compared to other decisions of similar matters.
[28] The Appellant argues that witness statements and affidavits which were relied upon by the Commissioner were 'unreliable' and 'inconsistent', but does not explain how this is so and it seems that this complaint is no more than a contention that the witness statements and affidavits do not accord with her own version of events. It seems clear to us that in the Appellant’s Notice of Appeal and her outline of submissions she continues to reiterate her account of events but does not explain how the Commissioner fell in error. That the Appellant does not agree with the conclusions reached by the Commissioner does not amount to an arguable case of appellable error.
[29] The Appellant contends that the Commissioner was biased against her because she is not a solicitor. As is apparent from the Commissioner’s analysis of the evidence reproduced above, the Commissioner gave considerable detail as to why the specific evidence adduced by and arguments of the Appellant were not accepted. The Appellant does not explain why she says that the Commissioner’s ultimate acceptance of the solicitor’s evidence in preference to that of the Appellant was erroneous.
[30] The public interest is not engaged simply because the Appellant disagrees with the decision at first instance. Such a disagreement without more will not provide a proper basis for the grant of permission to appeal.
[31] On the material before us, we are not persuaded that the matters set out in the grounds of appeal raise an arguable case of error in the Commissioner’s exercise of her discretion, of the kind discussed in House v King. 15 We also do not consider that an arguable case has been made out that the Commissioner's conclusion was unreasonable, manifested by any injustice or counter-intuitive. Nor are we persuaded that the appeal raises issues of importance or general application or that there is a need for Full Bench guidance on any matter raised. Therefore, we do not consider that there is any basis that would justify the grant of permission to appeal in the public interest or otherwise. In accordance with s.400(1) of the Act, permission to appeal is refused. However, even if s.400(1) did not mandate that result we would not for the reasons stated above, grant permission to appeal in this case.
Conclusion
[32] For the reasons given permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Ms T Gill, appearingon her own behalf.
Mr I Humphreys, Solicitorfor Rio Tinto Aluminium Limited t/a Rio Tinto Weipa.
Hearing details:
2017.
Melbourne via VC to Brisbane and Weipa Magistrate’s Court.
6 September.
1 [2017] FWC 2903.
2 See for example Fox v Kangan TAFE Print S0253, 25 October 1999 at [36];Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; Dundovich v P&O Ports, Print PR923358, 8 October 2002 per; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338; Jobs Australia v Eland[2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410.
3 Jobs Australia v Eland[2014] FWCFB 4822; Farnhill v Australian Business Academy Pty Ltd [2016] FWFBC 3410.
4 [2017] FWC 2903 at [1] – [2]
5 ibid at [127] – [145]
6 ibid at [145] – [151]
7 transcript PN 44 – PN 47
8 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
9 (2011) 192 FCR 78 at [43]
10 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
11 [2010] FWAFB 5343, 197 IR 266 at [27]
12 Wan v AIRC (2001) 116 FCR 481 at [30]
13 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
14 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
15 (1936) 55 CLR 499
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