Shaun Maher v Croker Construction (WA) Pty Ltd atf the Croker Unit Trust

[2019] FWC 6447

[2019] FWC 6447

The attached document replaces the document previously issued with the above code on 20 September 2019.

Appearance for the Respondent now correctly reads J Duffy.

Associate to Deputy President Beaumont

Dated 23 September 2019.

[2019] FWC 6447

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shaun Maher
v
Croker Construction (WA) Pty Ltd atf the Croker Unit Trust
(U2019/5974)

DEPUTY PRESIDENT BEAUMONT PERTH, 20 SEPTEMBER 2019

Application for an unfair dismissal remedy – whether application filed within 21 days – extension of time – exceptional circumstances – extension of time granted

[1] Mr Maher applied for an unfair dismissal remedy having been dismissed from Croker Construction (WA) Pty Ltd atf the Croker Unit Trust (Croker) on 29 March 2019. Croker objected to the application on the basis that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with that objection.

[2] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters are not presently relevant.

[3] It is not contested that Mr Maher’s application was made out of time. However, for Mr Maher’s application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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. 1

[4] The issue before me is whether the circumstances are exceptional, and whether it is fair and equitable for an extension to be granted.

Background – some observations

[5] Usually, matters such as these are perhaps run of the mill. An applicant files an application late for an unfair dismissal remedy. The Commission hears from both the applicant and respondent as to whether there are exceptional circumstances that warrant granting an extension of time. Thereafter, the Commission decides whether there are exceptional circumstances and having considered such circumstances, determines whether it is fair and equitable for an extension to be granted.

[6] However, before the background to this matter is set out in full, I have chosen to provide comment. An unusual course, but necessary in my view. Some may consider the comments imprudent, noting this forum may not be the appropriate place to ventilate the issue(s) that arose. And yet, in a system where the conduct of some appears at times to be left unchecked, it remains important to draw attention to it - in an equanimous manner.

[7] The argument before me centres on representative error being the reason for the delay in making the application. Therefore, it is timely to provide comment about that same representative – Unfair Dismissals Direct (UDD).

[8] On 19 August 2019, my Chambers received an email time stamped 4:14PM. The email read:

Dear Deputy President Beaumont,

I refer to the above matter as well as your email of 18 August 2019.

Kindly find attached hereto the applicant’s submission and witness statement in respect of the above-mentioned matter.

Kind regards,

Anouk Heyns

Anouk Heyns
Industrial Relations Advocate
…. W: National Contact 1800 347 647

[9] Attached to the 19 August 2019 email was a witness statement of Mr Maher, attachments to the witness statement, and submissions. The witness statement was unsigned but stated Mr Maher’s name and was dated 19 August 2019.

[10] On 11 September 2019, Chambers received a Form F54 from Anouk Heyns of UDD notifying the Commission that Anouk Heyns was ceasing to act for Mr Maher.

[11] On 12 September 2019, Chambers received an email from Mr Maher which stated:

Hello,

As a result of dismissals direct withdrawal from the case at such short notice (12/09/2019) I am requesting an extension on my submissions as I am currently at work and will not be able to type them up until tonight, also I was under the impression that dismissals direct where typing/submitting they [sic] submissions. I will need a further day or two to ensure they are typed and submitted correctly.

Thank you

Regards

Shaun Maher.

[12] The submissions Mr Maher was referring to were ‘submissions in reply’. In accordance with the extension of time that was granted, Mr Maher filed those submissions on 16 September 2019.

[13] A hearing took place on 19 September 2019. Having granted permission for Croker to be legally represented, Mr Duffy of Gilchrist Connell, appeared on its behalf. Mr Maher was understandably now, a self-represented litigant.

[14] In light of Mr Maher being self-represented, I stepped him through what I had presumed to be his witness statement that had been filed on his behalf on 19 August 2019. Shockingly, Mr Maher gave evidence that he had never seen such witness statement and had not been provided with a copy. I had no reason to disbelieve Mr Maher. There is of course an obligation not to give false or misleading evidence. Nonetheless, what struck me was Mr Maher’s acknowledgement - he had never seen such statement. This did not advantage him. The witness statement provided a chronological account of supposed events that had taken place. It was, after all, meant to have been his evidence. And yet, he had not the opportunity to make use of it, having never received a copy of it, or perused its contents.

[15] I am unable to discern whether UDD simply takes an approach of insouciance regarding such matters or is just utterly incompetent. Whatever the case may be, the late withdrawal of representation, accompanied by filing a witness statement, the contents of which Mr Maher had not seen and did not have a copy, is arguably feckless and egregious.

[16] The question one may ask is how anyone can be at ease filing a witness statement on behalf of a client in circumstances where the client has not seen that which is written, or has not had it read out to them so that they may understand and confirm that it presents his or her account.

[17] It is therefore the case, that the submissions in reply that Mr Maher had prepared in addition to the documents that accompanied those submissions, were tendered into evidence. No objection was taken by Croker to this course, and I thank Mr Duffy, counsel for Croker, for the professionalism displayed.

Background

[18] It was uncontroversial that Mr Maher was dismissed from his employment on 29 March 2019.

[19] Mr Maher gave evidence that he sought the services of a paid industrial agent, UDD, to do all the relevant steps associated with an unfair dismissal claim. 2 On 4 April 2019, Mr Maher stated that he signed a contract with UDD and paid an application fee of $99.00.3 The UDD’s Terms of Engagement4 included in the subject line ‘Maher v The Trustee for the Croker Unit Trust’. There was further acknowledgement of the entity ‘The Trustee for the Croker Unit Trust’ under the header ‘Terms and Conditions and Instructions to Act’.

[20] The UDD’s Terms of Engagement set out the scope of work to be undertaken. It stated:

The scope of work undertaken by Unfair Dismissals Direct on your behalf shall include representing you in an application before the Tribunal (Application), determining the correct Tribunal and the best type of claim to bring for you, preparing and filing the Application on your behalf, reviewing documents provided by yourself and the Employer…. 5

[21] Mr Maher signed UDD’s Terms of Engagement that purported it was an ‘offer’ to represent him before an ‘industrial tribunal’. 6

[22] As events unfolded, Mr Maher gave oral evidence that on or around 21 May 2019, he contacted UDD and requested an update regarding his matter. Mr Maher said that the effect of what he was told was that there was an issue with the filing fee, but it was being sorted out.

[23] Mr Maher said that on 29 May 2019, he was contacted by the Deputy Registrar of the Western Australian Industrial Relations Commission (WAIRC), who invited him to attend a meeting that took place on 30 May 2019 at Level 17, 111 St George’s Terrace, Perth (the WAIRC). 7 According to Mr Mahar, the Deputy Registrar informed him that not only had UDD failed to pay the requisite fee, but had in addition lodged the notice of claim in the wrong jurisdiction.8 Mr Maher was apparently provided with a decision of the WAIRC dismissing his notice of claim, dated 27 May 2019 (WAIRC decision).9 The WAIRC decision cited the respondent as ‘The Trustee for the Croker Unit Trust’.

[24] Having had the meeting with the Deputy Registrar on 30 May 2019 and learning that his notice of claim in that jurisdiction had been dismissed, Mr Maher stated that he lodged an application with the Commission on 30 May 2019.

Mr Maher’s submissions

[25] Essentially, Mr Maher’s argument is that the delay was caused by representative error, specifically, that his representative erroneously filed an application regarding his dismissal in the wrong jurisdiction and thereafter failed to pay the requisite fee. Mr Maher submitted that he placed trust in UDD to take all the relevant steps that were associated with an unfair dismissal claim. As it was, only four to five days after his dismissal he had signed a contract with UDD to represent him in this respect.

Croker’s submissions

[26] Croker acknowledged that Mr Maher had advanced that the reason for the delay was representative error noting particularly, that the representative lodged the application in the WAIRC, failed to pay the WAIRC filing fee, and failed to represent Mr Maher in a manner that was in his best interests.

[27] However, Croker submitted that there was nothing exceptional about lodging the notice of claim in the WAIRC when the application should have been lodged in the Commission. 10 It continued, that the lodging of the application in the WAIRC was certainly not an uncommon occurrence and one that is regularly encountered in unfair dismissal applications.11

[28] Furthermore, Croker submitted that there was no evidence of the following representative errors, which Mr Maher had submitted were the reasons for the delay:

a) it became apparent that the application was lodged in the WAIRC in error because the applicant had been employed by a national system employer and not by a state system employee. Yet, there was no evidence as to when, how or why this fact became apparent (including, for example, whether this was before or after 19 April 2019); and

b) Mr Maher’s application was filed with the WAIRC due to a misconceived view held by UDD. There is no evidence provided as to when, how or why UDD came to this conclusion (including, for example, before or after 19 April 2019).

[29] Croker stated that even if there were representative error, which it did not admit, this did not automatically provide a sufficient reason to grant an extension of time. This was because the Commission was required to consider the conduct of the applicant irrespective of the representative error. In this respect, Croker referred to two decisions of the Commission, one where the applicant submitted they were blameless in the representative error which resulted in the claim being pursued in the WAIRC (Gould v AJ Projects Pty Ltd ATF the AJ Watkins Trust T/A Stylit (Gould)), 12 and the other where the applicant erroneously filed proceedings in the WAIRC against the general manager of the respondent company(Welthy v J Factor Holdings Pty Ltd t/as South Beach Hotel (Welthy)).13

[30] Croker advanced that in Gould, the Deputy President found that the applicant had access to several documents which indicated that the respondent was a corporate trustee, including payslips. It followed that the applicant was not blameless as she had failed to instruct her lawyers about the true identity of her employer.

[31] In Welthy, Croker advanced, the applicant gave evidence that he was unsure who employed him, and this was the reason he filed his application in the wrong forum. However, the applicant accepted his employment contract was between him and his employer and that he had been provided with a copy of the National Employment Standards fact sheet. This was in addition to payslips and group certificates being issued by the employer.

[32] In this respect, Croker submitted, amongst other submissions, that the following evidence was relevant to assess Mr Maher’s conduct:

a) Croker’s offer of employment to Mr Maher dated 24 May 2018 (Offer) was on Croker’s letterhead which indicated that the entity was ‘Croker Constructions (WA)) Pty Ltd as trustee for the Croker Unit Trust’;

b) under clause 1 of the Offer Mr Maher’s notice period was indicated as ‘In accordance with the National Employment Standards’. Further, in the annexed contract to the Offer under the clause ‘Terms and Conditions of Employment’ it states ‘Other conditions, if not covered in this document will be as set out in the Fair Work Act 2009, National Employment Standards…’;

c) Mr Maher had signed the Offer on 5 June 2018, thereby indicating that he read and accepted the terms of employment set out within the entire employment contract;

d) Mr Maher’s payslips were on Croker’s letter head which again indicated the employing entity; and

e) the first and final warning letter issued by Croker dated 10 May 2018, and the letter of termination of 2 April 2019, was on Croker’s letter head, which again indicated the employing entity.

Consideration

[33] There is discretion to extend the 21-day period set by the Act for making an application for an unfair dismissal remedy. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion. 14

[34] In the decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty) 15 the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time.16 Whilst Nulty considered the general protection provisions of the Act, its reasoning is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[35] The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 17 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 can be considered exceptional.18

[36] In the recent decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 19 the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 20

[37] At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were ‘exceptional circumstances’.

Reasons for the delay in filing the application

[38] Consideration turns to whether Mr Maher has provided a credible reason for the whole of the period that his application was delayed. 21 The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.22 It does not include the period from the date of the dismissal to the end of the 21-day period. The circumstances from the time of the dismissal, however, are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.23

Representational error

[39] Where representative error is a factor said to have contributed to the delay in making the application, it is accepted that the conduct of the applicant nevertheless is to be examined. 24 In Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service,25 a Full Bench decision that considered an out of time application under s 365 of the Act, but which is relevant for present purposes, it was said by the majority:

Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:

“(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exits where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.

(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”

[40] Mr Maher engaged the services of UDD some four to five days after being dismissed. He did so in circumstances where UDD’s Terms of Engagement set out the scope of work to be undertaken, which relevantly included determining the correct tribunal and the best type of claim to bring for him. Mr Maher was employed with Croker as a drainer in the construction industry. 26 He had acted promptly in obtaining guidance on what to do when dismissed. In the circumstances, I consider that it was not unreasonable for Mr Maher to place trust in a service provider that proffered to determine the type of claim and jurisdiction in which to bring that claim.

[41] Having placed his trust in UDD, evinced by Mr Maher signing the UDD Terms of Engagement, UDD subsequently submitted Mr Maher’s notice of claim for having been harshly, oppressively or unfairly dismissed, in the WAIRC. The decision of Chief Commissioner Scott in the WAIRC Decision stated to the effect that Mr Maher’s application was submitted on 17 April 2019 absent the application fee. I observe that had the application been brought at this time in this jurisdiction for a remedy for unfair dismissal, it would have been made in time. Instead, Mr Maher’s application in this jurisdiction was some 41 days late.

[42] Mr Maher gave evidence that he had followed up with UDD to ascertain the status of his application. Yet, it was not until he was contacted by the WAIRC on 29 May 2019, and had the meeting the next day with its Deputy Registrar, he learned that UDD failed to pay the requisite fee and had lodged the notice of claim in the wrong jurisdiction. 27 Mr Maher gave evidence that the Deputy Registrar provided some guidance on how to make an unfair dismissal application in this jurisdiction, and he did so on 30 May 2019. The same day on which the guidance was provided.

[43] Correctly, Croker submitted that even if there were representative error, which it did not admit, this did not automatically provide a sufficient reason to grant an extension of time. The Commission was required to consider the conduct of the applicant irrespective of the representative error.

[44] Croker referred me to the decision of Gould where the Deputy President found that the applicant had access to several documents which indicated that the respondent was a corporate trustee. In Gould, the applicant had responsibility for arranging payslips and preparing documentation on her employer’s letterhead. Mr Maher worked as a drainer. While he may have received payslips, I consider his position dissimilar to that of the applicant in Gould, and clearly his responsibilities were far removed to those of the same applicant.

[45] Further, while documentation provided to Mr Maher during the course of his employment referred to the entity of ‘Croker Constructions (WA) Pt Ltd as trustee for the Croker Unit Trust’, I am of the view that it does not always follow that an applicant should have appreciated that this name indicated that Croker was a constitutional corporation and therefore considered a ‘national system employer’ under the Act. Much turns on the circumstances in each case. In this matter, Mr Maher had engaged UDD to determine the type of claim and the jurisdiction in which to bring the claim. The responsibility therefore rested with UDD to obtain the information it required to make an informed decision on the application to pursue on behalf of its client. There is no evidence before me to show the Mr Maher provided misinformation to UDD. As I have already remarked, it was not unreasonable for Mr Maher to place his trust in UDD to undertake this work.

[46] Mr Hurrell, the Construction Manager at Croker, gave evidence that Mr Maher’s Offer was signed by Mr Maher on 5 June 2018. Under cl 1 of the Offer, Mr Maher’s notice period was indicated as ‘In accordance with the National Employment Standards’. Further, in the annexed contract to the Offer under the clause ‘Terms and Conditions of Employment’ it stated, ‘Other conditions, if not covered in this document will be as set out in the Fair Work Act 2009, National Employment Standards…’.

[47] In the decision of Welthy, the applicant gave evidence that he was unsure who employed him, and this was the reason he filed his application in the wrong forum. However, the applicant accepted his employment contract was between him and his employer and that he had been provided with a copy of the National Employment Standards fact sheet. However, I again reiterate that in this matter, it was not Mr Maher who had lodged the application in the wrong jurisdiction, it was his representative. UDD agreed to provide Mr Maher with a service that included determining the correct jurisdiction in which to bring the claim or application. In my view, a responsibility did not fall upon the shoulders of Mr Maher to second guess or otherwise check that UDD had done its job properly.

[48] I have considered the submissions and evidence of both parties and have concluded that the representative error of UDD was a sufficient reason to explain the entire period of the delay.

[49] I have concluded that Mr Maher was blameless and that the delay was not occasioned by his conduct. While the application for an unfair dismissal remedy was lodged some 41 days out of time, I am satisfied that Mr Maher did not simply leave his matter in the hands of his representative. Regarding the notice of claim in the WAIRC, he made at least one enquiry of his representative concerning where that matter was at. Further, from the evidence it was apparent that this enquiry was made approximately a week before Mr Maher was contacted by the Deputy Registrar of the WAIRC. This placed the time that the enquiry was made, approximately one month after UDD filed the notice of claim in the WAIRC. I do not consider that an enquiry made in that time frame showed a disregard by Mr Maher for that claim. Further, when notified by the Deputy Registrar that the claim or application had been brought in the wrong jurisdiction, Mr Maher acted promptly in filing the relevant application with this Commission.

Whether Mr Maher became aware of the dismissal after it took effect

[50] At all material times from the time Mr Maher was dismissed until the date the unfair dismissal application was made, Mr Maher knew he had been dismissed. I consider this to be a neutral factor.

Action taken to dispute the dismissal

[51] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 28 I have considered all the evidence in this respect, including the lodgement of the notice of claim in the WAIRC.

[52] Croker submitted that it was not aware that Mr Maher had disputed his dismissal until 2 May 2019 (after the last date for Mr Maher to lodge an application in the Commission), when it was contacted by the WAIRC by email to advise that a show cause hearing was listed for 13 May 2019.

[53] Having considered the evidence and submissions of Croker and Mr Maher, I consider it to be a neutral factor.

Prejudice to the employer

[54] I cannot identify any particular prejudice that Croker would accrue if an extension of time were to be granted. In its submissions Croker stated that it had suffered general prejudice in having to respond to, and deal with, an unfair dismissal application lodged 41 days outside the time limited prescribed by s 394(2) of the Act.

[55] I am unpersuaded that Croker would suffer prejudice and therefore I consider this to be a neutral factor in the present case.

Merits of the application

[56] The nature of the matter is such that consideration must be given to whether the application was made within the time period required in s 394(2) and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.

[57] In Kornicki v Telstra-Network Technology Group,  29 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said:

If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit. 30

[58] Concerning the substantive application, the merits have not been fully tested. This is not out of the ordinary. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to the applicant to lodge his application. 31

[59] The factual contentions and the merits of the application more generally would need to be scrutinised, including under cross-examination, if an extension of time were granted and the matter proceeded. I note that Croker has alleged varied misconduct by Mr Maher over a period of three to four months. However, I am unable to assess the merits as there are factual disputes between the parties that are untested.

[60] It follows that I consider this criterion to be neutral.

Fairness between the person and other persons in a similar position

[61] The Deputy President in Morphett v Pearcedale Egg Farm, 32 considered this criterion and said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission. 33

[62] While Croker has drawn my attention to various authorities on this factor, I am satisfied that the issue of fairness as between Mr Maher and other persons in a similar position is not a relevant consideration in the circumstances of this particular matter, and is therefore a neutral factor in determining whether to grant an extension of time.

Conclusion

[63] The criteria in s 394(3) of the Act have been carefully considered. I consider, based on the material provided, that there was a satisfactory reason advanced as to why the application was not lodged within the statutory time limit. While I consider that the other factors are neutral on balance, I am satisfied that there are exceptional circumstances warranting an extension of time for Mr Maher’s application to be made.

[64] I have concluded that Mr Maher’s circumstances were out of the ordinary course, unusual, special or uncommon. The totality of the evidence is sufficient to ground such a finding.

[65] Further, where exceptional circumstances are found, consideration turns to whether it is fair and equitable that time should be extended. I have concluded this to be the case and that an extension of time should be granted. I therefore allow Mr Maher to lodge an unfair dismissal application within a further period ending 30 May 2019.

[66] The application will be remitted to the unfair dismissal case management team and dealt with in the usual way.

DEPUTY PRESIDENT

Appearances:

S. Maher, Applicant.

J. Duffy of Gilchrist Connell for the Respondent.

Hearing details:

2019

Telephone

September 19

Printed by authority of the Commonwealth Government Printer

<PR712450>

 1   Fair Work Act 2009 (Cth) s 394(3).

 2   Applicant’s Submissions [1(a)].

 3 Applicant’s Submissions [1].

 4   Exhibit A3.

 5   Exhibit A2.

 6   Exhibit A2.

 7   Applicant’s Submissions [1(c)].

 8   Applicant’s Submissions [1(d)].

 9   Shaun Maher v The Trustee for the Croker Unit Trust [2019] WAIRC 00245.

 10   Robertson v Zeugma Electrical & Communication Services Pty Ltd[2010] FWA 4525; Legros v David Morris Pty Ltd as the Trustee for the Gustose Unit Trust t/as The Pantry Door[2010] FWA 4417.

 11   Legros v David Morris Pty Ltd as the Trustee for the Gustose Unit Trust t/as The Pantry Door[2010] FWA 4417.

 12   Gould v AJ Projects Pty Ltd ATF the AJ Watkins Trust T/A Stylit[2015] FWC 3059.

 13   Welthy v J Factor Holdings Pty Ltd t/as South Beach Hotel[2016] FWC 1978.

 14   Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989 [20].

 15   [2011] FWAFB 975.

 16 Ibid [15].

 17 Ibid [13].

 18   Ibid.

 19   [2018] FWCFB 901.

 20 Ibid [38].

 21   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 408-9.

 22   Biliana Henderson v Hoban Recruitment Pty Ltd T/A HOBAN Recruitment[2016] FWC 5041 [10].

 23   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 [29] – [31].

 24   Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service[2011] FWAFB 466.

 25   [2011] FWAFB 466.

 26   Witness Statement of Brendan Hurrell [1.3]-[1.4].

 27   Applicant’s Submissions [1(d)].

 28   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

 29   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 30   Ibid.

 31   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Ms Kristen Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.

 32   [2015] FWC 8885.

 33 Ibid [29].