Paul McKenzie v Department of Defence
[2020] FWC 2308
•4 MAY 2020
| [2020] FWC 2308 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paul McKenzie
v
Department of Defence
(U2019/12524)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 4 MAY 2020 |
Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.
[1] Mr Paul McKenzie (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 11 November 2019 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by the Department of Defence (the Respondent) on 11 November 2015 was unfair.
[2] The Commission wrote to Mr McKenzie on 12 November 2015 advising that his application was received outside the 21 day statutory timeframe in which an unfair dismissal application must be lodged and that a decision to extend the time in which he was allowed to lodge his claim would need to precede a determination of the merits of his application. Mr McKenzie’s application was lodged almost four years outside the 21 day statutory timeframe. The Commission wrote in similar terms to the Respondent. The Commission’s correspondence foreshadowed that Mr McKenzie’s application would be listed for conciliation by one of the Commission’s conciliators. However, conciliation did not proceed as on 20 November 2019 the Respondent wrote to the Commission expressing its preference for the matter to proceed directly to a jurisdictional hearing as the out of time issue was most relevant given its view that a settlement was highly unlikely and that the termination occurred many years ago.
[3] In other developments, on 27 November 2019 Vice President Catanzariti’s chambers wrote to Mr McKenzie setting out among other things the factors which the Commission must have regard to in determining whether there were exceptional circumstances warranting the Commission granting him a further period of time to make his application. That correspondence also asked Mr McKenzie to advise the Commission by 4:00pm on 4 December 2019 if he did not wish to add to the reasons for the delay set out in his application. On 3 December 2019 Mr McKenzie responded forwarding a YouTube video submission to the Commission.
[4] Mr McKenzie’s application was subsequently allocated to the Commission as presently constituted.
[5] The jurisdictional issue was heard on 25 February 2020. At the hearing Mr McKenzie appeared on his own behalf, while Ms Kim Henley, the Respondent’s Deputy Director – Australian Public Service Workplace Relations, appeared for Respondent.
[6] For the reasons outlined below, I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, Mr McKenzie’s application cannot proceed and will be dismissed.
Background
[7] An incident occurred on 21 June 2012 involving Mr McKenzie. Mr McKenzie contends in his application that he was berated and humiliated by one of the Respondent’s senior managers in front of eight other senior managers at a meeting which he was invited to speak at. Mr McKenzie lodged a formal complaint with the Respondent in respect of the incident on 22 June 2012, with revisions made to the complaint on 25 June 2012. The individual concerned later apologised to Mr McKenzie, though his apology appears not to have been provided to Mr McKenzie until several weeks after it was prepared.
[8] On 26 June 2012 Mr McKenzie was absent from work initially on personal leave. Mr McKenzie’s later lodged a workers’ compensation claim as a result of the impact the incident, with that claim subsequently accepted by Comcare (the workers’ compensation insurer for the Australian Government). Unfortunately, Mr McKenzie did not return to work prior to his employment being terminated on 11 November 2015.
[9] In late February 2014 the Respondent referred Mr McKenzie for an independent medical examination. The resulting report, prepared by Dr Richard Burek a Consultant Psychiatrist, proposed that consideration be given to medical retirement as Mr McKenzie’s prognosis was “guarded”. 1 In subsequent developments, Dr Burek’s report was provided to Mr McKenzie’s treating general practitioner, Dr Liao, and the Respondent commenced the medical retirement process.
[10] Other key developments leading up to the termination of Mr McKenzie’s employment are set out below:
• on 5 August 2014 Mr McKenzie’s treating psychologist, Mr John Cameron, commenting on Dr Burek’s report advised the Respondent that he agreed “medical retirement from Defence would be a suitable outcome” to Mr McKenzie’s case; 2
• on 20 August 2014 Dr Liao advised the Respondent that he was “of the opinion that Mr McKenzie should be medically retired” and that he agreed with Dr Burek’s recommendation to “medically retire Mr McKenzie”; 3
• on 5 January 2015 Mr Mark Davey, Mr McKenzie’s uncle, advised the Respondent that he would be acting on Mr McKenzie’s behalf, that he and his wife held Enduring Power of Attorney for Mr McKenzie and that Mr McKenzie would be relocating to Perth; 4
• in early May 2015 Mr McKenzie underwent a further independent medical examination by a Consultant Forensic Psychiatrist, Dr Antonella Ventura, in response to a request from the Commonwealth Superannuation Corporation (ComSuper) for further medical evidence to assist its consideration of the Respondent’s application for an invalidity retirement certificate for Mr McKenzie;
• in her report dated 14 May 2015 Dr Ventura expressed the opinion that “Mr McKenzie is totally and permanently disabled for work within the Australian Public Service”; 5
• on 25 June 2015 Mr McKenzie’s treating doctor, Dr Orna Gabbay, wrote to the Respondent advising that she agreed “totally” with Dr Ventura’s diagnosis regarding Mr McKenzie and that she also agreed with her recommendation for retirement as “Totally & Permanently Disabled”; 6
• on 6 August 2015 a Comcare delegate advised the Respondent that Comcare supported the application for invalidity retirement; 7
• on 28 August 2015 a delegate of ComSuper approved the invalidity retirement of Mr McKenzie and the issue of an Invalidity Retirement Certificate to Mr McKenzie; 8
• the Respondent decided to terminate Mr McKenzie’s employment pursuant to s.29(1) of the Public Service Act 1999 (Cth) (the PS Act) on the grounds of “inability to perform duties because of physical or mental incapacity”;
• on 30 September 2015 Mr Davey emailed Mr McKenzie, with that email copied to the Respondent, stating as follows:
“Hi Paul
I have completed all your retirement papers that are required for Defence. I have listed your retirement state [sic] as close of business 11th November, 2015.
Could you ensure that you return to Matt any security or identification passes and let me know when you have done so …”; 9 and
• on 1 October 2015 Mr McKenzie emailed the Respondent with his email including the following:
“Additionally, it is with a degree of sadness (given the circumstances) that I would like to notify you of the nominated date for the termination of my employment:
Close of Business Wednesday the 11th of November 2015.
Finally, I would also appreciate a written acknowledgement of the above nominated date of termination including all advice regarding any final administration necessary for separation.” 10 (Emphasis as per original)
[11] The Respondent provided Mr McKenzie with a termination letter on 11 November 2015. The letter read as follows:
“NOTICE OF TERMINATION - INABILITY TO PERFORM DUTIES BECAUSE OF PHYSICAL OR MENTAL INCAPACITY
Background
1. You have been absent on continuous personal leave since June 2012 … you were directed to attend and undergo a medical assessment to determine your capacity to continue to work.
2. On 1 May 2015 you were assessed by Dr Antonella Ventura from MLCOA who concluded that you should be retired. Dr Ventura’s assessment has been supported by the Commonwealth Superannuation Corporation.
3. You were advised of Dr Ventura’s recommendation on 25 June 2015 and raised no objections.
Decision
4. I … GIVE NOTICE TO YOU, MR PAUL ALEX MCKENZIE, EXECUTIVE LEVEL 1 that pursuant to section 29(2) of the Public Service Act 1999 I am terminating your employment on the ground referred to in section 29(3)(d) of the Public Service Act 1999 – “inability to perform duties because of physical or mental incapacity”.
Date of Effect
5. This termination will take effect at the expiration of 11 November 2015.
Right of Appeal
6. You should be aware that a decision to terminate employment cannot be reviewed under the Dispute Prevention and Settlement Procedures set out in section 14 of the Defence Enterprise Collective Agreement 2012-2014. You may apply to the Fair Work Commission (FWC) if you believe the termination of your employment to be unfair, or otherwise in contravention of the Fair Work Act 2009. If you decide to do so, you can seek further information from on how to lodge your application with FWC in your capital city, or they can be contacted on 1300 799 675. You should be aware that statutory time limits apply to the lodgement of applications.” 11
[12] As previously mentioned, Mr McKenzie’s unfair dismissal application was received by the Commission on 11 November 2019.
The Statutory framework
[13] Section 394 of the Act provides:
“394 Application for Unfair Dismissal Remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.” (Legislative notes not included)
Whether to allow a further period for the application to be made under s.394(2)
[14] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.
(a) The reason for the delay
[15] In explaining the reason for the delay in his application Mr McKenzie largely outlined the nature of his grievance with the Respondent, stating among other things that “[w]ithout the evidence necessary to substantiate the underhanded and unlawful actions of the Department of Defence and Comcare, my stance (this application) would have been considered baseless.” 12 In his abovementioned YouTube video, Mr McKenzie gave the following reasons for the delay in making his application:
• he was under duress given the conduct and actions of the Respondent’s senior management;
• it had taken him years to gather the evidence to substantiate his unfair dismissal claim;
• to gather information by way of a freedom of information application takes a minimum of 30 days, with an extension often sought by the Respondent; and
• the material provided under freedom of information was often redacted to the point of being completely useless thereby necessitating an application for secondary review.
[16] At the hearing the reasons given by Mr McKenzie for the delay in lodging his application included that:
• it took him a long time following his dismissal to get some composure and get himself functioning again, later reiterating that it took him a long time to get sufficiently composed to appear before the Commission without becoming “ropable”;
• he was placed into the care of his uncle, Mr Davey, in 2015 and as a result was sent to Western Australia following the break-up of his marriage, adding that he came out of care in 2015;
• following his dismissal, he had no home, no money, no car and no computer;
• he was not relying on the medical side of things as a reason for the delay;
• he was now in the mode of putting his life back together;
• it had taken a fair while for him to recover and assemble the relevant information; and
• as a result of his mental illness he was unable to defend himself until recently.
[17] In short, the Respondent submitted that Mr McKenzie had not provided acceptable reasons for the delay in lodging his application. Beyond this, the Respondent’s submissions can be summarised as follows:
• Mr McKenzie provided no evidence to substantiate the reasons for the delay given in his YouTube submission, highlighting for instance that Mr McKenzie had provided no explanation or evidence to support his contention that he was under duress from the Respondent or any other person following the termination of his employment;
• it was not necessary for Mr McKenzie to seek documents through freedom of information processes to understand the reasons for the termination of his employment, adding that he had all the information necessary to form a view as to whether he should seek a remedy for unfair dismissal;
• Mr McKenzie could have lodged his application notwithstanding that he was awaiting the outcome of any freedom of information applications he had made;
• there was no evidence that the documents received by Mr McKenzie under freedom of information provided a basis for his application which was unknown to him prior to receiving those documents;
• Mr McKenzie made only one freedom of information application with the Respondent between the date of his dismissal and 12 April 2017, adding that Mr McKenzie had provided no reason for the delay over that period;
• Mr McKenzie provided no evidence that he lacked the capacity to make an unfair dismissal application prior to November 2019, noting that Mr McKenzie had not raised this as a reason for the delay; and
• Mr McKenzie lodged 28 freedom of information applications with it over the period November 2015 and November 2019 and between March and August 2018 had acted as a representative for another of the Respondent’s employees in processes related to that employee’s employment with it, adding that these actions demonstrated that Mr McKenzie had sufficient capacity to file his unfair dismissal application before he did.
[18] The Respondent referred to several decisions in its submissions, including the decisions in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (Stogiannidis) 13, Roshan Rodrigo v Mawland Quarantine Station Pty Ltd T/A Q Station14 and Timothy Byrnes v Department of Broadband, Communications and the Digital Economy (Byrnes).15
[19] While Stogiannidis concerned a general protections application which was lodged outside the 21 day statutory timeframe, I note that the factors which the Commission must take into account in deciding to grant an extension of time for a general protections application made out of time are similar to those set out in s.394(3) of the Act. More particularly, the Full Bench in Stogiannidis made the following observations regarding the issue of “reason for the delay”:
“[39] … The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” 16
[20] I respectfully agree with the Full Bench’s observations.
[21] In this case, Mr McKenzie contended among other things that it took some time to get some composure and get himself functioning and that he was unable to defend himself until recently as a result of his mental illness. However, he provided no material, e.g. a doctor’s certificate/statement, to support that contention. Further, the fact that Mr McKenzie assisted another of the Respondent’s employees in an employment related matter suggests that from at least mid-March 2018 17 (the date of his initial email to the Respondent on the employee’s behalf) he had the capacity to lodge an unfair dismissal application.
[22] Mr McKenzie also contended that it had taken him years to gather the evidence to substantiate his unfair dismissal claim and highlighted the time involved in obtaining information via freedom of information. Firstly, I note that Mr McKenzie filed his initial freedom of information request with the Respondent on 15 November 2015 18, i.e. four days after the termination of his employment with the Respondent, with the Respondent stating in its submissions that it provided the publicly available document to Mr McKenzie on 18 November 2015. The document sought by Mr McKenzie was the Defence Instructions (General) – Management and Reporting of Unacceptable Behaviour. According to the log of freedom of information requests received from Mr McKenzie which was produced by the Respondent, Mr McKenzie did not file another freedom of information request until mid-April 2017.19 Mr McKenzie did not provide a reason for this lengthy gap between requests or why he was unable to lodge his unfair dismissal application during this period.
[23] Further, while Mr McKenzie provided voluminous documents to the Commission with his application, some of which appear to have been obtained under freedom of information, many of those documents concern his 2012 complaint. However, in circumstances where Mr McKenzie’s employment was terminated on medical grounds, I note that none of those documents appear to challenge the medical opinions or the ComSuper determination which underpin the Respondent’s decision to terminate his employment. Drawing on the decision in Byrnes, the documents do not appear to disclose anything pertinent to the termination of Mr McKenzie’s employment that was not known to him at the time of the dismissal.
[24] Having regard to the above analysis, I am not satisfied that Mr McKenzie has provided a credible explanation for either part of or the entirety of the delay in lodging his unfair dismissal application. This does not point to the existence of exceptional circumstances.
(b) Whether the first person became aware of the dismissal after it had taken effect
[25] At the hearing Mr McKenzie acknowledged that he was aware that the Respondent was negotiating the termination of his employment with Mr Davey, adding that he was not aware of his dismissal until the termination letter came through on 11 November 2015.
[26] The Respondent submitted that Mr McKenzie was aware for some considerable period prior to the termination of his employment that his employment would be terminated, highlighting Mr McKenzie’s email of 1 October 2015 (see the last dot point paragraph [10] above) to support its contention in this regard.
[27] It is clear from McKenzie’s abovementioned email of 1 October 2015 that at least from that date, if not before, he was aware that his employment was going to cease on 11 November 2015.
[28] This does not point to the existence of exceptional circumstances.
(c) Any action taken by the person to dispute the dismissal
[29] Mr McKenzie submitted that he had to get the facts together to establish exactly what had happened before he could dispute his dismissal, adding that that there was no way he could get things together in 21 days in a matter as complex as this one. Mr McKenzie further submitted that he needed a comprehensive foundation to say this is what happened as he could not dispute his dismissal without evidence. Beyond that, Mr McKenzie stated that he needed to get his life in order before disputing his dismissal and that the state of his mental health and finances and the circumstances which led him to make his application were not capable of being remedied in 21 days.
[30] The Respondent submitted that Mr McKenzie took no steps to dispute his dismissal after his employment ended, adding that this factor weighed against the granting of an extension of time.
[31] There is no material before the Commission indicating that Mr McKenzie took any steps to dispute his dismissal prior to lodging his unfair dismissal application. Given the substantial period of time that has elapsed since Mr McKenzie’s employment with the Respondent ceased, I consider this factor weighs against the grant of an extension of time.
(d) Prejudice to the employer (including prejudice caused by the delay)
[32] Mr McKenzie made no submissions regarding this consideration.
[33] The Respondent submitted that it would suffer prejudice were an extension of time granted in this case because the key decision makers and personnel involved in the dismissal decision were no longer employed by it and given the passage of time witnesses may not be able to recall the factual circumstances.
[34] The Respondent would, in my view, be significantly prejudiced given the substantial period of time that has elapsed since Mr McKenzie’s employment was terminated by it. In particular, the recollection of witnesses, should they be available, of events over four years ago is likely to be significantly impaired as a result of the passage of time. This would impact negatively on the Respondent’s capacity to defend the application.
[35] I therefore consider the issue of prejudice weighs heavily against the grant of an extension of time.
(e) The merits of the application
[36] In his application Mr McKenzie stated inter alia that the termination of his employment was unfair because it was a consequence of him making a complaint of unacceptable behaviour against one of the Respondent’s senior managers. Mr McKenzie also contended that the Respondent “unceremoniously” terminated his employment without his consent, positing that in no way was this fair or legal. Key aspects of Mr McKenzie’s written and oral submissions included that:
• the Respondent and Comcare colluded to bring about his demise;
• the Respondent did not administer the termination of his employment lawfully by failing to secure his consent;
• the Respondent failed to adhere to its own instructions for the management of unacceptable behaviour/bullying;
• the facts speak for themselves in this case;
• when one looked at his case holistically it was an example of government at its absolute worst; and
• the Respondent could not make him unwell and then simply get rid of him, adding that it had a responsibility to him regardless.
[37] In short, the Respondent submitted that Mr McKenzie’s application was without merit because there was a valid reason for the termination of his employment and the dismissal was not otherwise harsh, unjust or unreasonable in the circumstances. Key aspects of the Respondent’s submissions included that:
• it was clear that Mr McKenzie’s employment was terminated because he was totally and permanently incapacitated for work;
• Mr McKenzie’s retirement on invalidity grounds was supported by numerous medical practitioners, including his own treating doctors;
• both elements of clause F22.18 of the Defence Enterprise Collective Agreement 2012-2014 (the Agreement) 20 were met in this case as Mr Davey had, in his capacity as Power of Attorney for Mr McKenzie, consented to Mr McKenzie’s retirement on invalidity grounds and Mr McKenzie had been absent from work from June 2012 until the termination of his employment in November 2015 during which he was in receipt of compensation payments
− by way of background, clause F22.18 of the Agreement provided as follows:
“F22.18 Invalidity retirement. An employee will not, without the employee’s consent, be retired on invalidity grounds before the employee has had access to all their paid Personal leave credits, or a continuous period of at least 52 weeks of their paid Personal leave credits and/or compensation payments, whichever occurs first. Miscellaneous leave for personal illness or injury, as set out in Annex C (Item 12), cannot be used to delay an employee's invalidity retirement from taking effect.”;
• it was accordingly lawful for it to terminate Mr McKenzie’s employment with or without his consent, particularly as s.29 of the PS Act did not require consent; and
• Mr McKenzie was still in receipt of compensation payments.
[38] Having regard to the background set out earlier in this decision, it is clear that the various medical opinions regarding Mr McKenzie prior to the termination of his employment were universally of the view that he should be medically retired from his employment with the Respondent. Significantly, Mr McKenzie’s treating psychologist, Mr Cameron, and his treating doctors, Drs Liao and Gabbay, all supported this outcome. Further, I note that the Respondent’s application that Mr McKenzie be retired on medical grounds was independently assessed and approved by ComSuper in accordance with the Public Sector Superannuation Scheme Trust Deed and the Superannuation Act 1990 (Cth). 21 As to Mr McKenzie’s submission that his employment was terminated without his consent, the material before the Commission points to the requirements of clause F22.18 of the Agreement having been satisfied, particularly as Mr Davey had Power of Attorney for Mr McKenzie. I note also Mr McKenzie does not appear to challenge any of the medical opinions or ComSuper’s decision in this case. Against that background, the merits of Mr McKenzie’s application do not appear compelling.
[39] As such, I consider this factor weighs against an extension of time being granted.
(f) Fairness as between the person and other persons in a similar position
[40] At the hearing Mr McKenzie referred to the bullying he had witnessed while employed by the Respondent and posited that “to speak up was to be shot down” in the Respondent’s workplace.
[41] The Respondent contended that this consideration was not relevant in this case.
[42] While I note Mr McKenzie’s contentions and without in any way expressing a view as to their substance, they are simply not relevant to this element of s.394(3) of the Act. Accordingly, I consider this factor to be a neutral consideration.
Conclusion
[43] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group (Nulty) 22in the following way:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 23
[44] Mr McKenzie clearly continues to be significantly aggrieved by the Respondent’s handling of his 2012 complaint and his subsequent treatment at the hands of the Respondent. However, in circumstances where his unfair dismissal application was received by the Commission exactly four years after his employment with the Respondent ceased what the Commission needs to decide in the first instance is whether there are exceptional circumstances warranting the Commission granting Mr McKenzie a further period to make his application. The delay in Mr McKenzie filing his unfair dismissal is undoubtedly a very substantial period. As can be seen from the above consideration of the factors set out in s.394(3) of the Act, none of those factors point to the existence of exceptional circumstances in this case. To the contrary, all but one of those factors weigh against such a finding, with the remaining factor being a neutral consideration. More importantly, those factors, when considered together, do not point to the existence of exceptional circumstances.
[45] As such, having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I find that there are no exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy. Accordingly, Mr McKenzie’s application cannot proceed and will be dismissed. An order to that effect will be issued with this decision.
Appearances:
P. McKenzie on his own behalf.
K. Henley for the Respondent.
Hearing details:
Canberra.
2020:
February 25.
Printed by authority of the Commonwealth Government Printer
<PR718771>
1 Respondent’s outline of submissions to jurisdictional objection and material on which it may rely at Document 6 of Annexure 1
2 Ibid at Document 16 of Annexure 1
3 Ibid at Document 17 of Annexure 1
4 Ibid at Document 22 of Annexure 1
5 Ibid at Document 24 of Annexure 1
6 Ibid at Document 31 of Annexure 1
7 Ibid at Document 26 of Annexure 1
8 Ibid at Document 28 of Annexure 1
9 Ibid at Document 29 of Annexure 1
10 Ibid at Document 9 of Annexure 1
11 Ibid at Document 30 of Annexure 1
12 Form F2 Unfair dismissal application at Item 1.5
13 [2018] FWCFB 901
14 [2014] FWC 5766
15 [2012] FWA 7744
16 [2018] FWCFB 901 at [39]
17 See Respondent’s outline of submissions to jurisdictional objection and material on which it may rely at Document 3 of Annexure 1
18 Ibid at Document 2 of Annexure 1
19 Ibid
20 AE893129
21 Respondent’s outline of submissions to jurisdictional objection and material on which it may rely at Document 28 of Annexure 1
22 (2011) 203 IR 1
23 Ibid at [13]
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