Page v La Nouvelle Musique (Aus) Pty Ltd

[2014] QIRC 14

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Page v La Nouvelle Musique (Aus) Pty Ltd
[2014] QIRC 014
PARTIES:	Page, Alan Shane
(Appellant)
v
La Nouvelle Musique (Aus) Pty Ltd
(Respondent)
CASE NO:	B/2013/35
PROCEEDING:	Application for unpaid wages
DELIVERED ON:	24 January 2014
HEARING DATE:	10 January 2014
MEMBER:	Industrial Commissioner Neate
ORDERS:	1.  The Respondent is to pay the Appellant for

6.313 hours of unpaid holiday pay.

2.    The Respondent is to pay the Appellant an

amount equal to one day’s pay at the base

rate of pay for work related activity on 25
April 2013.

3.    Such amounts to be paid within 28 days of the date of release of this decision.

CATCHWORDS:	INDUSTRIAL LAW - APPLICATION FOR
UNPAID WAGES – whether Commission has
power to order payment of out of pocket
expenses – calculation of accrued holiday pay –
claim for payment for delays in payment of
wages – whether other employee had ostensible authority to offer such payment – whether such payment is “wages” – claim for payment for
work on public holiday and Saturday.
CASES:	Industrial Relations Act 1999 ss 278, 320(3)
Bettina O'Connor v Electroboard Administration
Pty Ltd (2001) 168 QGIG 90
Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd
(1975) 133 CLR 72
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
APPEARANCES:	Mr A.S. Page, the Applicant, in person
Mr A. Forsyth, for the Respondent.

[1]      Mr Alan Shane Page, applied to the Queensland Industrial Relations Commission ("the Commission") on 12 June 2013 to recover what he contended were unpaid wages and superannuation contributions in relation to his employment by the Respondent, La Nouvelle Musique (Aus) Pty Ltd. Some of the amounts claimed, and the categories of payments, changed between the date of the application and the hearing in the Commission on 10 January 2014. In particular, the superannuation claim is no longer pursued in the Commission.

[2]      At the end of the hearing, the categories and amounts claimed were:

(1) out of pocket expenses for the period 29 April 2013 to 24 May 2013:

$740.02

(2) accrued holiday pay for 9.39 hours: $248.77 less tax

(3)	additional payment of one week's pay as promised due to late payment of
wages over Christmas period:  $1312.64
(4)	payment for working on Anzac Day 2013 and on Saturday 27 April 2013:

$423.04

Total:  $2344.47.

[3]      In relation to the first two categories, the Respondent disputes the amounts claimed but is willing to pay lesser amounts than those claimed.

[4]      However, the Respondent does not concede that it is required to pay anything to Mr Page for the late payment of wages over the Christmas period, or for work done by Mr Page on 25 and 27 April 2013.

Background

[5]      The Respondent is a small company that provides fire training and consultancy services. Mr Adrian Forsyth is its sole director. Mr Forsyth appeared for the Respondent at the hearing.

[6]      Mr Page is a fire safety consultant and trainer. He was employed by the Respondent between Monday 23 January 2012 and Friday 24 May 2013. The terms and conditions of his employment were set out in a written contract dated 24 January 2012 ("the Contract"). Mr Page relies exclusively on the relevant terms of the Contract as the basis for his application for unpaid money.

Out of pocket expenses

[7]      Mr Page was the only Queensland trainer for the Respondent. His work required him to travel throughout Queensland, either by plane or in his own motor vehicle.

[8]      The Contract states:

"The Company will reimburse you for any relevant expenses incurred during the course of your employment contract as per the agreement. Further details may be obtained from your manager".

[9]      Mr Page said that he discussed these matters with his manager, Mr Matt Jones, in the first couple of days of his employment.

[10] The Contract also states:

"As the company pays an allowance of $800 per month towards your personal vehicle, you are responsible to maintain your own vehicle in good working order at all times. An Expense reimbursement provided by the company allows you to purchase fuel; log books must be kept so fuel usage can be record [sic] against kilometers".

[11]    Mr Page provided copies of printed receipts and invoices for payments made by him in relation to:

(a)	fees for parking his own motor vehicle on various dates between 29 April 2013 and 23 May 2013: total cost of $90.70
(b)	the cost of filling a gas cylinder with LPG on 8 May 2013 for use in hot fire training for a particular building: $27.95
(c)	the cost of purchasing ink for Mr Page's home printer on 7 May 2013: $77.73
(d)	the cost of purchasing fuel for his motor vehicle on various dates between 30 April 2013 and 21 May 2013: total cost of $543.64.

Each amount is noted on Expenses Sheets (Exhibit 1).

[12]   At the hearing, Mr Forsyth agreed that the Respondent was liable to reimburse Mr Page for the cost of parking fees, LPG and ink as identified in the documentary evidence. However, he took issue with the amount claimed by Mr Page for fuel costs on the basis that:

(a)	the out of pocket expenses for these periods (of which fuel costs form the main component) significantly exceeded the fortnightly average for such costs in the preceding 12 months of Mr Page's employment (which, according to Mr Forsyth, were in the range of $200 and $240 per fortnight); and
(b)	Mr Page had not provided evidence to demonstrate that all the fuel costs were related to his employment by the Respondent.

[13]   Mr Page also tendered copies of four pages from his Vehicle Log Book ("the Log Book") (Exhibit 1), and calendar entries showing work commitments for the period Monday 22 April to Friday 24 May 2013 (Exhibit 2). He contended that, when read together, the documents show where he had been on the trips. However, Mr Forsyth was critical of the Log Book entries because they have a "bunch of numbers" but do not identify the number of kilometres between specific sites. These extracts, he contended, did not comply with standard business practices, and it was not possible to ascertain from the extracts whether those expenses were incurred in relation to Mr Page's employment. For that reason, and because the claimed expenses were nearly double the average for Mr Page's expenses over the previous 12 months, there was a dispute between the parties about the amount owed to Mr Page. In reply, Mr Page contended that the cost of fuel had risen.

[14]    Each page of the Log Book has the following headings:

(a)	Date of journey – start date, end date
(b)	Purpose of journey
(c)	Odometer – start, end
(d)	Kilometres travelled – business, private.

[15]    The four pages from the Log Book in evidence contain entries for 41 dates between 4 April and 31 May 2013. All but one of those dates is a week day. There is no entry for 25 April (Anzac Day when Mr Page was travelling to Rockhampton) but there is an entry for Saturday 27 April. The final five dates (from 27 to 31 May inclusive) can be disregarded as falling outside the period during which Mr Page was employed.

[16]   None of the entries records the purpose of a journey. None of the entries refers to private travel. Although 40 entries record a "start" for the odometer reading, only five have an "end" odometer reading. Four entries identify the journey as being for business:

(a)	Friday 12 April	105,988 km to 106,199 km, a distance of 211 km
(b)	Saturday 27 April	108,149 km to 108,347 km, a distance of 198 km
(c)	Friday 10 May	110,636 km to 110,824 km, a distance of 188 km
(d)	Friday 24 May	112,704 km to 112,924 km, a distance of 220 km.

[17]   However, the distances recorded as being for business for those entries were 2556 km, 2148 km, 2417 km and 2103 km respectively. It is difficult to ascertain the basis for those figures, although they are consistent with the total distances travelled in the periods between (rather than on) those dates.

[18]    From the odometer "start" figures, however, it appears that the car was driven on the weekends of 6-7 April (205 km), 20-21 April (188 km), 28 April (198 km) and 4-5 May (175 km) - presumably for private purposes - but was not driven on 13-14 April, 11-12 May or 17-19 May.

[19]   That breakdown of the figures demonstrates that, on the basis of the Log Book entries alone, it cannot be said with certainty and precision how much travel in Mr Page's vehicle was undertaken for business purposes. Even assuming that the odometer readings allow the calculations to be undertaken, some inferences need to be drawn in the absence of any record in the Log Book of the purpose of travel and the distances travelled for those purposes.

[20]    The calendar entries provide some assistance. The fuel purchase receipts show that purchases were made on Tuesday 30 April, Thursday 2 May, Monday 6 May, Tuesday 8 May, Friday 10 May, Tuesday 14 May, Friday 17 May, and Tuesday 21 May (twice). The calendar shows that Mr Page had work commitments on those dates at places as far apart as Maroochydore, Kallangur, various locations in Brisbane, Robina, Varsity Lakes and Byron Bay. For example, the purchase on Monday 6 May was for 39 litres. It followed a weekend when, apparently, the car was driven 175 km. But the purchase was at 2.54 pm on a day when (using the odometer reading for 6 and 7 May) upwards of 292 km were travelled. According to the calendar, Mr Page had two sessions that day, one in Burpengary and the other at Narangba Village. Thus, it can be inferred that most, if not all of the fuel purchased, was for work-related purposes.

[21]   The Commission would not have undertaken the preceding analysis had the Log Book entries been more complete or there was greater particularity in that aspect of Mr Page's evidence. If that analysis and the inferences drawn are reasonably accurate, the overall impression drawn is that at least most of the fuel was purchased for work-related purposes. On that basis, the amount that Mr Page is entitled to as reimbursement for the purchase of fuel for his motor vehicle is adjusted down to $500.00.

[22]   For completeness, I note that Mr Forsyth contended that the amount for expenses Mr Page had claimed at the end of his term of employment with the Respondent was $419.22, and that the claim for additional expenses to a total of $740.02 was not made until the application to the Commission in June 2013. Mr Page disputes that and contends that all his claims for out of pocket expenses (in the sums of $419.22 and $320.80) were made at the end of his term of employment, but that Mr Forsyth did not deal with them until a later date. In support of his contention, Mr Page relies on an email from Mr Tony Connelly to Mr Page dated Saturday, 25 May 2013 (Exhibit 6) that stated:

"Subject: Pay

Shane,

Adrian did not get a chance to read your expenses until today, he will work it out on Monday, so you are aware, your contract states all income will be paid on or before your pay cycle, which for you is on Thursday. All amounts will be paid on or before this date

Regards

Tony Connelly

Director".

[23]    That email message does not specify which expenses Mr Forsyth was to read and, in particular, does not allow the Commission to conclude that the total sum of the expenses claimed at that date was $419.22 or $740.02.

[24]    Mr Page also relies on three emails between Mr Connelly and him on 28 May 2013 (Exhibit 7). However, to the extent that they are relevant to this issue, they only establish that:

(a) Mr Page asked Mr Forsyth when he could expect payment of "expenses

for the period ending 16/5/13"

(b)	Mr Page asserted to Mr Connelly that his contract ceased on Friday 24 May 2013 and "all monies owing" should have been paid within 48 hours of ceasing work; and
(c)	Mr Connelly invited Mr Page to read his email from Saturday re "expenses" being paid on or before Thursday following the end of the period.

[25]    Those email messages do not allow the Commission to conclude what was the total sum of the expenses claimed at that date.

[26]    As it happens, there is no need to resolve that issue. Mr Page is either entitled or not to reimbursement for the expenses he claims. At the hearing, Mr Forsyth conceded that the Respondent was liable to reimburse Mr Page for his out of pocket expenses in relation to the costs of parking his private vehicle, filling a gas cylinder with LPG and purchasing printing ink. The only issue was the cost of fuel for Mr Page's car for work-related purposes.

[27]    On the basis of the evidence before the Commission, I find that Mr Page is entitled to be reimbursed for expenses totalling $696.38, comprising $90.70 for parking fees, $27.95 for LPG, $77.73 for ink, and $500.00 for fuel for his motor vehicle.

[28]    Although neither party raised the issue, there is a question whether the Commission can order such a payment.

[29] Mr Page's application was made under s 278 of the Industrial Relations Act 1999

("the Act"). That section lists the matters in respect of which an application may be

made to the Commission for an order for payment. Those matters include "an

employee's unpaid wages" (s 278(1)(a)). The definition of "wages" includes

amounts payable to an employee for work performed, or to be performed, by the

employee; a public holiday; leave the employee is entitled to; or termination of

employment. The definition also includes a salary, or an amount payable from

wages for the employee, with the employee's written consent (Schedule 5). There is

authority for the view that a payment made as reimbursement is not within the

1

ordinary concept of "wages".

[30] Section 278 does not refer to an application for reimbursement of expenses incurred by an employee in the course of their employment.

[31]   There was no issue that the Respondent was liable under the Contract to reimburse Mr Page for a range of expenses of the types described earlier. The only issue was how much the Respondent should pay to Mr Page for expenses he incurred in the final four weeks of his employment by the Respondent.

[32] In light of the findings set out earlier, the Respondent should pay to Mr Page the sum of $696.38. That decision is recorded because, although it appears that the Commission has no power to make an order to that effect, s 320(3) of the Act provides that, generally speaking, the Commission is to be governed in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately concerned.

Accrued holiday pay

[33]    Mr Page claims that he is entitled to accrued holiday pay for 9.39 hours, in the sum of $248.77 less tax. He makes that calculation by reference to two pay slips (Exhibit 1). The first, for the pay period ending 12 May 2013 includes in relation to Holiday Leave Accrual: Hours 6.15, YTD 97.24. The second, for the pay period ending 26 May 2013 includes in relation to Holiday Leave Accrual: Hours 6.15, YTD 9.39.

[34]    The Respondent contends that it is liable to pay accrued holiday pay for 6.313 hours. Mr Forsyth gave evidence that Mr Page's leave entitlements had been audited. From a total of 212.313 hours of accrued leave for 69 weeks of work, 206 hours of leave had been taken by the pay period ending 29 May 2013, leaving 6.313 hours outstanding (see Exhibit 5).

[35]   I accept Mr Forsyth's explanation of how the outstanding leave entitlement is to be calculated and I find that Mr Page is entitled to be paid for 6.313 days.

Underpayment of wages for one week

[36]   In his affidavit sworn on 19 December 2013, Mr Page states "One extra week pay was offered by Company Director Tony Connelly and accepted".

[37]   The basis for the claim for an extra week's pay is an email message sent by Mr Tony Connelly to Mr Page and Mr Scott Fraser (the Respondent's trainer for Victoria and New South Wales) at 6:14 pm on Saturday 19 January 2013 (Exhibit 2). The full text of the email is:

"Subject: Pay and sorry

Guys,

We have all been affected this week re pays.

As the manager I would like to apologize, and as a small token of my appreciate

[sic] I would like to offer you both an extra week paid annual.

Regards

Tony".

[38]    According to Mr Page, they were not paid on a regular basis during the three week holiday period, and Mr Page incurred debts because of dishonoured cheques and dishonoured payments. This caused a lot of stress, and prompted the offer by Mr Connelly.

[39]   Mr Page said that he accepted the offer verbally in a telephone conversation with Mr Connelly a couple of days later. There was no evidence before the Commission of any written record of that acceptance. Mr Page was not paid the sum claimed for that one week period.

[40]   The Respondent contends that it is not liable to pay that sum because Mr Connelly was not authorised to make financial promises on behalf of the Respondent (Exhibit 5).

[41]   There was some evidence from Mr Page and Mr Forsyth about the role performed by Mr Connolly during the relevant period of Mr Page's employment. According to Mr Page, Mr Connelly was the sales manager based in Brisbane. Mr Page contacted him (or the training co-coordinator) daily and reported any problems. If something came up that "needed someone with more authority", Mr Page spoke to Mr Connelly.

[42]    In the email of 19 January 2013, Mr Connelly referred to himself as "the manager", yet Mr Page's affidavit of 19 December 2013 describes Mr Connelly as "Company Director". According to Mr Page, Mr Connelly said he was a director of the respondent. However, when Mr Page did a search of the ASIC records he discovered that Mr Connelly was not a director of the Respondent.

[43]   It is apparent from three emails from Mr Connelly to Mr Page dated 25 and 28 May 2013 (Exhibit 7) that on those occasions Mr Connelly described himself as "Director". One of the emails dated 28 May 2013 was copied to Mr Forsyth. However, those emails were sent well after the date of the purported offer, and after

the expiration of Mr Page’s employment.

[44]   Mr Forsyth gave evidence that he is, and has been since its inception in 2010, the sole director of the Respondent, and that only he is authorised to make an offer of one week's pay. Mr Forsyth said that he had "limited interaction" with the business and was not aware of any offer to Mr Page and Mr Fraser. He described Mr Connelly as a contractor consultant to the business, who is not an employee of the Respondent. Mr Connelly was engaged by the Respondent to be a sales consultant but had been the operations manager since the start of 2013. He is responsible for the day-to-day delivery of training and basic client management.

[45]   In summary, the evidence before the Commission establishes that, at the relevant time, Mr Connelly was the Respondent's operations manager. His role was to ensure that training was delivered and clients were happy. Mr Page had regular contact with him, usually on a daily basis, in relation to operational delivery matters. In some respects, Mr Page reported to Mr Connelly. However, Mr Forsyth was the sole director of the Respondent and only he could authorise additional payments of the type outlined in Mr Connelly's email of 19 January 2013. Mr Forsyth did not make any offer of extra pay to Mr Page. Nor did he agree to an offer being made on behalf of the Respondent. He first became aware of it when Mr Page drew it to his attention after the Respondent had paid Mr Page his holiday pay and Mr Page said he was owed money for another week.

[46]    On that basis I find that Mr Connelly was not actually authorised to make the offer set out in his email to Mr Page and Mr Fraser on 19 January 2013. That finding does not necessarily dispose of Mr Page's claim. It might be that if Mr Connelly had ostensible authority to make that offer and Mr Page accepted the offer, the Respondent could not resile from paying the amount claimed.

[47]   The parties were not legally represented at the hearing, and no submissions were made by the parties in relation to whether Mr Connelly had ostensible authority to make the offer. It is appropriate, however, to set out the broad legal principles relevant to circumstances such as these to ascertain whether Mr Page has a legal basis for his claim, despite Mr Connelly having no actual authority to make the offer on which Mr Page relies.

[48]    In essence, even if Mr Connelly made actual representations of his authority to make

the offer on behalf of the Respondent, it is necessary to look at the conduct of the

principal or a person to whom Mr Forsyth had actually delegated authority to

ascertain whether it can be inferred that Mr Connelly's actual representation of

authority is correct. Such representations could be made by the principal either by a

previous course of dealing or by putting the agent in a position or by allowing him to

act in a position from which it can be inferred that his actual representation of

2

authority in himself is in fact correct. Whether the representation is general, or

related specifically to the particular transaction, it must come from the principal.

3

The company's conduct must be the source of the representation.

[49]    There is no evidence before the Commission that in January 2013:

(a)	Mr Connelly held himself out as a director of the Respondent, or
(b)	Mr Forsyth or the Respondent had represented that Mr Connelly in his role as operations manager had authority to make the offer purportedly made in the email of 19 January 2013 (or offers of that nature) which, if accepted, the Respondent would honour.

[50]   Hence, I am not satisfied that Mr Connelly had ostensible authority to make the offer which Mr Page seeks to have enforced. Consequently, that component of Mr Page's claim must fail.

[51]   It might also be concluded that, although Mr Page's application sought an "additional one weeks pay as promised due to late payment of wages over the Christmas period", the amount claimed by him cannot be characterised as "wages" or salary. The proposed payment was not for work performed or to be performed by Mr Page. Rather, it was an ex gratia payment apparently offered as recompense for the inconvenience and distress caused to two employees as a result of the delay in payments to them by the Respondent over the Christmas period. The amount offered was to be calculated by reference to the ordinary rate for the relevant employee for a week, but was not itself "wages". Hence, there appears to be no power under s 278 of the Act for the Commission to order payment of that amount. However, as that point was not raised by the Respondent and was not the subject of submissions, it is not necessary to express a concluded view in relation to the characterisation of the purported offer.

Payment for working on 25 and 27 April 2013

[52]   Mr Page stated that he travelled to Rockhampton for work-related purposes on Anzac Day 2013 and that he did work as part of his employment on the following Saturday. Accordingly, Mr Page claims payment for working on those two days.

[53]    The bases for that claim are the paragraphs of the Contract that state:

"You will be entitled to (20) twenty working days holiday annually (in addition

to all statutory holidays) …"

and

"Statutory Holidays

Public holidays are observed in accordance with your State legislation."

[54]    The Respondent resists the claim for payment for those two days by relying on the following paragraph in the Contract:

"HOURS OF DUTY

You will be required to work the hours as agreed to satisfactorily perform your duties. The hours of work at the Company are normally 40 hours per week however your salary and commissions take into account the fact that you may have to work additional hours for which no overtime shall be payable. Your nominal start and finishing times will be advised to you by your Manager".

[55]   The Contract does not specify the days of the week on which duties will be performed. According to Mr Page, the hours of business were 8.00 am until 5.00 pm on a normal business day. On those occasions when he would return home at around 7.00 pm from work elsewhere, the "no overtime" provision applied. In his submission, however, that provision did not apply to days that were not normal working days.

[56]    Mr Forsyth suggested that there were a "handful of times" throughout the course of their employment when Mr Page and other employees would work late or on weekends, and normally they would take some time off in lieu. He stated that most trainers would struggle to work 40 hours each week.

[57]    Mr Forsyth referred to "blank days" in Mr Page's training calendar for the previous 12 months, and contended that the periods for which Mr Page seeks payment in these proceedings was "compensated more than enough in the last 12 months". On this point, Mr Page said that the calendar entries were incomplete at least to the extent that when he started at 11.00 am he also had to get out reports and other things to take with him as part of the morning work.

[58]   Mr Page tendered copies of his fortnightly time sheets for the pay periods ending 12 May 2013 and 26 May 2013 (Exhibit 1). Those documents record his start and finishing times on each weekday as 0800 and 1700 respectively. According to Mr Page, each timesheet was completed in "the way it's always been done", recording only Monday to Friday and never public holidays or weekends. Consequently, the timesheets do no more than indicate that Mr Page worked the total number of hours each week required by the Contract. They do not necessarily reflect the work done on any particular day.

[59]   The calendar entries for the period Monday 22 April 2013 to Friday 24 May 2013 (Exhibit 2) show scheduled fire training appointments at various times of day on week days and unallocated periods before, between and after such appointments. On the basis that 0800 until 1700 were the ordinary hours of work, the calendar entries, read alone, indicate that on some days Mr Page started work late and finished early. In particular, the entry for:

(a)	25 April 2013 has, in handwriting "Travel to Rockhampton";
(b)	26 April 2013 records events training scheduled from 8.00 am until 11.00 am; and
(c)	27 April 2013 records a scheduled event in Brisbane from 8.00 am until 9.00 am, followed by "Pick up Taringa Manual from office" from 9.30 am until 10.30 am.

There are no other work related events listed for any of those days.

[60]    Mr Forsyth acknowledged that Mr Page flew to Rockhampton on Anzac Day so that he would be able to conduct training the following day. Mr Page's oral evidence indicates that he returned to Brisbane on 26 April.

[61]    Although he is claiming payment for two days in lieu, Mr Page said that he worked only on Saturday morning. That is consistent with his statutory declaration of 27 July 2013 in which Mr Page deposed that he conducted a training session in Brisbane on the morning of 27 April then attended Mr Connelly's home to collect a manual for delivery the following Monday.

[62]    On the basis of the evidence before the Commission I find that Mr Page:

(a) travelled in relation to his work on a public holiday; and

(b) worked on the morning of Saturday 27 April 2013 between 8:00 am and 10:30 am.

[63]   Having regard to the flexible working hours contemplated by the Contract, the information contained in the calendar extracts, and the oral evidence of Mr Page and Mr Forsyth, I am satisfied that the hours of work-related activity on the morning of 27 April should be offset against time not worked on normal working days. However, Mr Page is entitled to be paid for travelling to Rockhampton on Anzac Day.

[64]    Consequently, the Respondent is ordered to pay to Mr Page an amount equal to one day's pay at the base rate of pay for work related activity on 25 April 2013.

Order and observation

[65]    Having regard to the findings set out in these reasons for decision, the Commission orders the Respondent to pay the Applicant, Alan Shane Page:

(a) for 6.313 hours of unpaid holiday pay; and

(b) an amount equal to one day's pay at the base rate of pay for work related activity on 25 April 2013.

[66]    For the reasons given above, the Commission notes that the Respondent should pay the Appellant the sum of $696.38 in relation to cost of pocket expenses incurred by him, consistently with the Contract, in the course of his employment by the Respondent.

[67]    Such amounts to be paid within 28 days of the date of release of this decision.

1
Bettina O’Connor v Electroboard Administration Pty Ltd (2001) 168 QGIG 90.
2

Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR

72 at 78, 80 per Gibbs, Mason and Jacobs JJ.
3

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 [36] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.