Stephen Baskin v Friends Resilience Pty Ltd T/A Friends Resilience
[2018] FWC 1536
•16 MARCH 2018
| [2018] FWC 1536 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections (consent arbitration)
Stephen Baskin
v
Friends Resilience Pty Ltd T/A Friends Resilience
(C2017/3229)
DEPUTY PRESIDENT DEAN | SYDNEY, 16 MARCH 2018 |
Application for costs.
[1] On 24 November 2017 I issued a decision 1 in respect of an application made by Mr Baskin pursuant to s.365 of the Fair Work Act 2009. In that decision (the primary decision) I made a finding that a concluded settlement had been reached between Mr Baskin and Friends Resilience Pty Limited (Friends) and dismissed Mr Baskin’s application.
[2] Friends now seeks an order for costs on an indemnity basis in the sum of $29,479.68 (or in the alternative, on party to party basis, the sum of $12,885.00):
• against Mr Baskin pursuant to ss.375B and 611 of the Act; and
• against Mr Baskin’s representative, Simmons & McCartney (Simmons), pursuant to s.376 of the Act.
[3] Mr Baskin was represented by Simmons, and Friends was represented by King & Wood Mallesons in previous proceedings. Both retained the same representation for the present costs application.
[4] Directions were issued on 8 December 2017 requiring the parties to file written submissions and to advise their views on whether a hearing should be held. The parties filed written submissions and agreed that the costs application be determined ‘on the papers’.
[5] The costs application relies largely on the contention that Mr Baskin instigated the consent arbitration proceedings of his general protections claim despite an earlier settlement being reached at a telephone conciliation conference conducted by a Fair Work Commission Conciliator.
[6] Friends states in its application against Mr Baskin that:
a. he caused those costs to be incurred because of an unreasonable act or omission in connection with the conduct or continuation of the dispute (s.375B);
b. his application was made without reasonable cause (s.611(2)(a)); and
c. it should have been reasonably apparent to him that his application had no reasonable prospects of success (s.611(2)(b)).
[7] Friends states in its application that it seeks costs from Simmons:
a. because it encouraged Mr Baskin to start and/or continue the dispute when it should have been reasonably apparent that Mr Baskin had no reasonable prospect of success (s.376(2)(a)); and
b. because of its unreasonable act or omission in connection with the conduct or continuation of the dispute (s.376(2)(b)).
Relevant legislation
[8] The relevant legislative provisions of the Act provide as follows:
375B Costs orders against parties
(1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:
(a) an application for the FWC to deal with the dispute has been made under section 365; and
(b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute.
(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377.
(3) This section does not limit the FWC’s power to order costs under section 611.
376 Costs orders against lawyers and paid agents
(1) This section applies if:
(a) an application for the FWC to deal with a dispute has been made under section 365 or 372; and
(b) a person who is a party to the dispute has engaged a lawyer or paid agent (the representative) to represent the person in the dispute; and
(c) under section 596, the person is required to seek the FWC’s permission to be represented by the representative.
(2) The FWC may make an order for costs against the representative for costs incurred by the other party to the dispute if the FWC is satisfied that the representative caused those costs to be incurred because:
(a) the representative encouraged the person to start, continue or respond to the dispute and it should have been reasonably apparent that the person had no reasonable prospect of success in the dispute; or
(b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute.
(3) The FWC may make an order under this section only if the other party to the dispute has applied for it in accordance with section 377.
(4) This section does not limit the FWC’s power to order costs under section 611.
611 Costs
(1) A person must bear the person’s own costs in relation to a matter before FWA.
(2) However, FWA may order a person (the first person) to bear some or all of the costs of another person in relation to an application to FWA if:
(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or
(b) FWA is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.
Note: FWA can also order costs under sections 376, 401 and 780.
(3) A person to whom an order for costs applies must not contravene a term of the order.”
[9] The Explanatory Memorandum to the Fair Work Amendment Bill 2013 provides in part that:
58. The power to award costs under new section 375B is not intended to prevent a party from robustly pursuing or defending a general protections dispute before the FWC. Rather, the power is intended to address the small proportion of litigants who pursue or defend disputes in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.
59. The FWC’s power to award costs under subsection 375B(1) is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission.
60. However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.”
[10] The Explanatory Memorandum to the Fair Work Bill 2008 provides the following with respect to ss.376 and 611:
Clause 376 – Costs orders against lawyers and paid agents
1497. Subclause 376(1) allows FWA to make costs orders against lawyers and paid agents who cause costs to be incurred by another party in relation to an application under clause 365 or clause 372, because they encouraged a person to make the application when it should have been reasonably apparent there were no reasonable prospects of success, or because an act or omission by them in connection with the conduct or continuation of the dispute was unreasonable.
1498. These provisions are designed to deter lawyers and paid agents from encouraging others to make speculative applications, or make applications they know have no reasonable prospects of success.
1499. Subclause 376(1) operates in addition to subclause 611(2). Subclause 611(2) provides FWA with a general power to make costs orders against a person in the following circumstances:
• where a person made an application, or responded to an application, vexatiously or without reasonable cause; or
• where a person made an application, or responded to an application, and it should have been reasonably apparent to the person that their application, or response to an application, had no reasonable prospects of success.
1500. Subclause 376(2) provides that, in order for FWA to make a costs order against a lawyer or paid agent, an application by the person seeking the costs needs to have been made under clause 376.
1501. Subclause 376(3) clarifies that these provisions are not intended to limit FWA‘s power to order costs under clause 611.
Clause 611 – Costs
2353. Subclause 611(1) provides that generally a person must bear their own costs in relation to a matter before FWA.
2354. However, subclause 611(2) provides an exception to this general rule in certain limited circumstances. FWA may order a person to bear some or all of the costs of another person where FWA is satisfied that the person made an application vexatiously or without reasonable cause or the application or response to an application had no reasonable prospects of success.
2355. A note following subclause (2) alerts the reader that FWA also has the power to order costs against lawyers and paid agents under clauses 376, 401 and 780 which deal with termination and unfair dismissal matters.
2356. Subclause 611(3) provides that a person to whom a costs order applies must not contravene a term of the order.
Costs against Mr Baskin
Submissions
[11] Friends submits that an award for costs is justified given Mr Baskin “should never have commenced C2017/3229 [the general protections application] by requesting a certificate and referring the dispute for arbitration, or by a series of unreasonable acts or omissions by proceeding with C2017/3229 [the consent arbitration]”.
[12] In advancing its application, Friends relies on the primary decision and my findings on a number of matters including:
a. a binding agreement had been reached at conciliation 2;
b. an agreement need not be reduced to writing to be binding 3;
c. it was not suggested, nor was any evidence advanced in support of a proposition, that the agreement was only in principle 4 or was not binding unless and until it was reduced to writing5;
d. Mr Baskin changed his mind about the settlement for reasons other than that they did not accurately reflect the terms of settlement 6.
[13] Friends submits that Mr Baskin’s application was ‘plainly untenable’ and the settlement was a ‘textbook Masters v Cameron binding agreement’ and ‘there was no rational basis to argue the settlement was not binding’.
[14] Friends says that “the case for Mr Baskin never got higher than he was never told by the FWC that the agreement was binding. This involved only a negative proposition, rather than a positive reservation of rights in relation to the settlement.”
[15] Friends also relies on the submissions and evidence made during the earlier proceedings leading to the findings of the primary decision that a binding agreement had been reached. It is submitted that the evidence given by Mr Baskin during the earlier proceedings was ‘unfair’ and ‘untruthful’ and that his claim that the ‘superannuation carve-out’ proposed by Friends was a factor behind his decision to renege on the settlement was untrue. It argues that Mr Baskin was not even aware of the proposed ‘carve-out’ when he first decided to renege on the agreement.
[16] Friends’ submits that it should have been apparent to Mr Baskin that his application had no reasonable prospects of success. “When reneging on the settlement, Mr Baskin had the benefit not only of Friends’ view, but of the bipartisan Conciliator who confirmed her view that she agreed with Friends.”
[17] It is contended that “this was a clear case of buyer’s regret, Mr Baskin having decided on reflection that the settlement was not as good as what he would have liked, and did not take into account some matters he wished he had raised. These are not matters which provide a rational basis for reneging on a binding settlement.”
[18] Further, “Mr Baskin sought to buttress his position with a range of arguments as to why the settlement was not binding. The obvious reality is that the dispute was about whether there was an intention to be bound when the verbal agreement was reached.”
[19] Friends’ submits that it was “obliged to deal with arguments in Mr Baskin’s written submissions (or in correspondence) which made no sense and/or were contrary to unchallenged authority.” It is submitted that arguments adduced by Mr Baskin were implausible on the following bases:
a. be amended, so as to reflect the terms of the settlement. The FWC so found, in accordance with unchallenged authority.”
b. Mr Baskin falsely claimed that there was no consideration as the settlement sum had not been paid. “Again, this advanced a proposition which failed to have proper regard to Friends being ready, willing and able to proceed. There can be no dispute that Friends had taken that position in writing.”
c. Mr Baskin referred to the settlement being ‘unjust’ as if that consideration had the capacity to undo a binding settlement. As the FWC found in the primary decision that the settlement terms were in fact the terms offered by Mr Baskin and accepted by Friends: “That sequence precludes argument about whether the settlement is unjust. That Mr Baskin was legally represented at all times is entirely conclusive.”
d. Mr Baskin’s proposition that the agreement reached at the conference was only ‘without prejudice’ one was a misapprehension of the nature of ‘without prejudice’ communications.
[20] Friends relies upon a number of matters which it claimed demonstrate unreasonable conduct of Mr Baskin in pressing the arbitration:
a. When the issue of the camera was raised as a basis for reneging on the settlement, Friends’ representative wrote an email ‘expressing an openness to discuss an alternative solution’ in order to resolve the impasse. No response was received to that email.
b. Despite claiming that Friends had amended or departed from the verbal agreement, Mr Baskin made no attempt to propose a form of words which accurately reflected the terms of settlement reached. It was unreasonable to react by reneging on the settlement rather than articulating a more consistently worded document.
c. “While these may have been the flights of fancy of Mr Baskin’s lawyers, a party is bound by the conduct of the case. Mr Baskin cannot take the advantage of his advice, yet disown the outcome if it proves unfavourable. If the outcome is to cause Friends to incur unnecessary costs, Mr Baskin is responsible.”
d. Mr Baskin was given ‘fair and clear notice’ that he would be pursued for costs. Both parties were legally represented throughout the proceedings and Mr Baskin knew that unreasonable conduct would cause additional costs.
[21] Friends further refers to matters which it submits warrant discretionary consideration in favour of an order. In particular, it is submitted that:
a. While it is true that costs are the exception, and not the rule in the FWC, this is based on the general objects under the Act: including to act informally, and to minimise a party’s costs of participation.
b. Those objects are also served by the FWC’s institutional practice of hosting conciliation conference by telephone which allows parties to appear without attending the FWC.
c. One of the consequences of this practice is that almost all settlements in conference are achieved verbally, with a view to being later documented. This opens the door to disputes about exactly what was agreed and whether the written document matches those terms. But this is not such a case, and Mr Baskin could not point to one matter on which the parties held different views. This submission is supported by the finding in the primary decision.
d. For a party to renege on a settlement clearly reached, and to require the other party to take steps to have the claim dismissed, and to incur disproportionate costs has consequences beyond inconvenience to the other party. It undermines the very system the FWC uses to resolve disputes efficiently and cost-effectively in accordance with the objects of the Act.
Submissions in reply – Mr Baskin
[22] Submissions made by Simmons on behalf of Mr Baskin contend that the costs application should be dismissed. It is submitted that:
a. there was no unreasonable act or omission in connection with the conduct or continuation of the dispute;
b. Mr Baskin’s claim was made with reasonable cause;
c. it was not apparent that the claim had no reasonable prospects of success; and
d. the cost application is vexatious.
[23] The submissions advanced by Simmons can be summarised as follows:
a. Mr Baskin did not initiate proceedings to either harass, embarrass or to gain collateral advantage and his claim was not made vexatiously.
b. Mr Baskin sought to be paid money that he was entitled to including the right to superannuation.
c. the settlement terms drafted barred Mr Baskin from making a claim for the recovery of his professional camera and his superannuation entitlements.
d. In dismissing Mr Baskin’s Claim, the Commission makes no reference to him acting ‘vexatiously’.
[24] Simmons says that the costs application is vexatious and exorbitant. It raises issues as to the costs claimed by Friends. Simmons further submits that Friends has additional resources compared to Mr Baskin and has attempted to take advantage of this imbalance.
[25] As to the term ‘without reasonable cause’, Simmons relies on the decision in Church v Eastern Health t/a Eastern Health Great Health and Wellbeing 7where the Full Bench cited Wilcox J in Kanan v Australian Postal and Telecommunications Union8:
“One way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospects of success. If success depends upon the resolution in the applicant’s favour of one or more arguable points of law, it is inappropriate to stigmatise the proceedings as being ‘without reasonable cause’. But where, on the applicant’s own version of the facts it is clear that the proceeding must fail, it may be properly said that the proceeding lacks a reasonable cause.”
[26] Simmons argues that at no time did the Conciliator advise that any agreement reached at conciliation was binding and no terms of settlement were provided before or during the conciliation conference. The primary decision identified various arguable points of law and therefore it is inappropriate to stigmatise this matter as being ‘without reasonable cause’.
[27] With respect to the question of whether it should have been ‘reasonably apparent that the application had no reasonable prospect of success’, Simmons relies on the decision in Baker v Salva Resources Pty Ltd 9 (Baker)as authority for the proposition that the test is an objective one and such a finding “should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.”
[28] Simmons submits that s.368(3)(b) provides that “if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.” Simmons notes that the Commission did not advise the parties when issuing the s.368(3) certificate that Mr Baskin’s claim would not have a reasonable prospect of success.
[29] Simmons lastly submits that the costs application should be dismissed and an order should be made that Friends pay Mr Baskin the costs of this application.
Submissions in reply - Friends
[30] In its reply, Friends dealt comprehensively with the submissions made by Simmons on behalf of Mr Baskin.
[31] I have considered all of the matters raised in Friends’ submissions in reply, but it is not necessary to set them all out here. However, as highlighted in Friends’ submissions in reply, Simmons made no submissions in relation to the claim for costs against it under s.376. Friends submitted that accordingly, there was no basis to resist an order for costs against Simmons under that section.
Consideration – application against Mr Baskin
[32] Section 611(1) of the Act makes it clear that parties in proceedings before the Commission must bear their own costs. The Act provides exceptions where the Commission may order costs against a party if it is satisfied that circumstances specified in s.611(2) exist. The power to award costs should be exercised with caution and only in a clear case 10.
s.611(2)(a) Whether Mr Baskin’s application was made vexatiously or without reasonable cause?
Vexatious
[33] The test for determining whether an application is made vexatiously is to consider whether the predominant or genuine purpose in instituting proceedings is to harass or embarrass the other party, or to gain a collateral advantage. 11
[34] Friends does not contend that Mr Baskin made the application vexatiously.
[35] On the material before me, I am satisfied and find that Mr Baskin’s application was not made vexatiously.
Without reasonable cause
[36] The expression ‘without reasonable cause’ within the meaning of s.611(2)(a) was considered in Church and the following propositions were either made or approved by the Full Bench:
• A party cannot be said to have made an application ‘without reasonable cause’, within the meaning of s 611(2)(a), simply because his or her argument proves unsuccessful. The test is not whether the application might have been successful, but whether the application should not have been made. 12
• One way of testing whether a proceeding is instituted ‘without reasonable cause’ is to ask whether upon the facts known to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. 13
• The test imposed by the expression ‘without reasonable cause’ is similar to that adopted for summary judgment, that is, ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’ or ‘discloses a case which the Court is satisfied cannot succeed’. 14
[37] I accept that Mr Baskin held a genuine belief, although wrong, that the verbal agreement reached at the telephone conference was made on an in-principle basis and would not have binding effect until it was executed in written form.
[38] Whilst Mr Baskin may have misconceived that his application could be adjudicated absent any binding agreement, this does not itself demonstrate that his application was made without reasonable cause.
[39] The concepts of a binding agreement at a telephone conference are often understood differently by parties. The issue of whether a settlement agreement is enforceable has been considered by the Commission in various matters and returned different outcomes 15. I accept that there were issues of fact and law that were arguable and it was open for Mr Baskin to test the validity of the agreement, despite the fact that he did not succeed as a result.
[40] Mr Baskin’s misconception as to the validity of the agreement is plausible in my view. It is not peculiar for any person to take a different view from the opposing party and the conciliator (in the present case, a staff member of the Commission). It should be noted that Mr Baskin has never received the settlement monies that were agreed at the conference.
[41] My ultimate decision in dismissing Mr Baskin’s application was made after a consideration of the evidence adduced by the parties in the proceedings. My findings cannot be relied upon as propositions that it was manifestly groundless and obviously untenable for Mr Baskin to continue his application.
[42] I do not accept Friends’ submission that the email of 5 June 2017 from Friends’ representative displayed an ‘openness’ on its part to discuss an alternative solution. The email ended by the phrase “... are you guys saying that the deal (which you say wasn’t a deal) can be done provided Friends kick in some money for a lost or damaged camera?” did not in my view genuinely call for any response. In fact, little effort was shown by either party in making further attempts to resolve the dispute in respect of the settlement.
[43] In my view, the circumstances of this matter do not support a finding that Mr Baskin made the application ‘without reasonable cause’.
s.611(2)(b) Whether it should have been reasonably apparent to Mr Baskin that his application had no reasonable prospect of success?
[44] As to the question of whether it should have been reasonably apparent that the application had no reasonable prospects of success, the Full Bench in Baker v Salva Resources Pty Ltd 16 said:
‘[10] The concepts within s.611(2)(b) “should have been reasonably apparent” and “had no reasonable prospect of success” have been well traversed:
“should have been reasonably apparent” must be objectively determined. It imports an objective test, directed to a belief formed on an objective basis, rather than a subjective test; and
a conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.” 17 (citations omitted)
[45] I am mindful of the cautious approach that the Commission should take in awarding costs.
[46] Taking into account the principles guided by the authorities cited and having considered the facts and circumstances of the present matter, I am not persuaded that, when viewed objectively, Mr Baskin continued his application in circumstances where it should have been reasonably apparent to him that the application had no reasonable prospect of success.
[47] I am not satisfied that the Commission’s power under s.611(2) of the Act has been enlivened and accordingly I decline to award costs against Mr Baskin under s.611.
[48] I note that had Mr Baskin instigated these proceedings after an agreement had been executed, and settlement monies paid to him, it is highly likely that I would have come to a different conclusion as to liability for costs.
s.375B – whether Mr Baskin caused costs incurred by the Applicant because of an unreasonable act or omission in connection with the conduct or continuation of the dispute?
[49] It is clear that the power to award costs against a party under s.375B can only be enlivened if the Commission is satisfied that the act or omission by the party was ‘unreasonable’. What is an unreasonable act or omission will depend on the facts and circumstances of the particular case but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.
[50] In Rahman v Commonwealth of Australia as represented by the Australian Taxation Office 18, Driver J considered costs under the Act and said: “A finding of an unreasonable act or omission must be the exception rather than the rule. It follows that a reasonably high bar needs to be set for a party alleging an unreasonable act or omission.”
[51] On the material before me, I am not satisfied that any unreasonable act or omission by Mr Baskin has been identified in connection with the conduct or continuation of the dispute. On that basis, the power to award costs under s.375B is not enlivened and I so find.
Costs against Simmons
Submissions
[52] Friends submitted that based on all the matters it raised in connection with Mr Baskin, Simmons should not have taken the following actions/steps on behalf of Mr Baskin:
• attempted to reopen the binding agreement and to advance new claims;
• maintained a position that a binding settlement had not been reached on contrary to the views of both Friends and the Fair Work Conciliator;
• sought to amend the verbal agreement reached at conference;
• maintained a position that there was no consideration for a binding agreement and that there was no certainty of terms;
• maintained that an agreement cannot be made in conference as the conference is without prejudice;
• maintained that a settlement may be avoided if it is in some way unjust;
• prepared Mr Baskin’s statement so as to lead evidence on a matter capable of being established from their own records, that superannuation was a matter motivating him when reneging on the settlement;
• ignored the email from Friends representative querying Mr Baskin’s position in relation to settlement and failed to make Mr Baskin aware of this email; and
• failed to raise concerns with the terms of the draft settlement document by suggesting alternate terms be proposed.
[53] Friends relies on matters that occurred after the primary decision was issued to which it submitted that I should consider in exercising my discretion in awarding costs. Those matters include details of correspondence between Simmons and Friends’ representative over the issue of Mr Baskin’s settlement payment.
[54] I have considered those matters raised and do not consider it necessary to set out in great detail here.
Submissions in reply
[55] Simmons made no submissions in reply to the application under s.376.
[56] Friends submitted that if costs are awarded against Mr Baskin, there is no basis to resist an order under s.376. Costs orders should be made against Mr Baskin and Simmons jointly and severally.
Consideration – application against Simmons
[57] Section 376(2)(a) provides power to the Commission to award costs against a lawyer only if it is satisfied that the lawyer ‘encouraged’ a person to start, continue or respond to the dispute when it should have been reasonably apparent that there were no reasonable prospects of success.
[58] There is no evidence that Simmons encouraged Mr Baskin to start, continue or respond to the dispute and I therefore find that s.376(2)(a) is not enlivened.
[59] What is left to be determined is the question whether Simmons has displayed any unreasonable act or omission in connection with the conduct or continuation of the dispute (s.376(2)(b)).
[60] A solicitor is reasonably justified in initiating proceedings even in a case where the supporting evidence is weak but arguable. 19
[61] The power to order costs against a lawyer is a power that must be exercised with care and discretion and only in clear cases. 20
[62] In Levick v Deputy Commissioner of Taxation 21, the Full Court of the Federal Court said:
“… What constitutes unreasonable conduct must depend upon the circumstances of the case; no comprehensive definition is possible. In the context of instituting or maintaining a proceeding or defence, … unreasonable conduct must be more than acting on behalf of a client who has little or no prospect of success. There must be something akin to abuse of process; that is, using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success.”
[63] I do not consider the present case is one which I should exercise my discretion to award costs against a legal practitioner.
Other matters
[64] A submission was made by Simmons that I should order Friends to pay costs to Mr Baskin in respect of the costs application. In the absence of any such application before me, it is not necessary for me to consider this submission, however, had such an application been made I would not have ordered costs, for many of the reasons set out in this decision.
[65] The parties have also made submissions as to whether I should award costs on an indemnity basis. Given my findings above that the power to award costs is not enlivened, it is not necessary for me to deal with the parties’ submission in that regard.
Conclusion
[66] For the above reasons, the application for costs must be dismissed. An order to that effect will issue with this decision.
DEPUTY PRESIDENT
1 [2017] FWC 5410.
2 Ibid at [51].
3 Ibid.
4 Ibid at [53].
5 Ibid at [54].
6 Ibid at [23] and [56].
7 [2014] FWCFB 810.
8 [1992] FWC 539.
9 [2012] FWAFB 6323.
10 See [2014] FWCFB 810 at [27].
11 Nilsen v Loyal Orange Trust [1997] IRCA 267.
12 [2014] FWCFB 810 at [30].
13 Ibid, citing Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257.
14 Ibid at [33].
15 See Curtis v Darwin City Council[2012] FWA 5224 and [2012] FWAFB 8021; Singh v Sydney Trains[2017] FWC 4015 and [2017] FWCFB 4562 and Nissanka v Are You Cool Enough Refrigeration Contractors Pty Ltd T/A AYCE Refrigeration[2017] FWC 5692.
16 [2011] FWAFB 4014.
17 Ibid at [10].
18 [2013] FCCA 388.
19 Ashby v Slipper [2014] FCAFC 15.
20 Ridehalgh v Horsefield [1994] Ch 205 at 229.
21 [2000] FCA 674.
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