Steven Tanyi v Foxtel Management Pty Ltd T/A Foxtel

[2017] FWC 5127

[2017] FWC 5127

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Tanyi
v
Foxtel Management Pty Ltd T/A Foxtel
(U2017/6955)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 6 OCTOBER 2017

Application for an unfair dismissal remedy.

[1] Mr Steven Tanyi was employed by Foxtel Management Pty Ltd from 7 March 2011 until his employment was terminated on 27 June 2017.

[2] Foxtel opposed Mr Tanyi’s application for permission to be represented by a paid agent. This matter was dealt with at a preliminary hearing and I advised the parties that permission was granted. Mr Tanyi has been accused of sexual harassment. These are serious accusations. If he represented himself, he would be required to cross examine the person who accused him of harassment. Mr Tanyi has no experience as an advocate and in those circumstances I am satisfied that it would be unfair not to permit Mr Tanyi to be represented as he could not represent himself effectively. Further, I would exercise my discretion to permit representation as I consider that in cases where a sexual harassment complainant is giving evidence, it is preferable for them not to be cross examined by the alleged perpetrator.

Background and matters not in dispute

[3] Mr Tanyi worked as a technical support consultant in Foxtel’s call centre. Mr Tanyi was also acting caretaker escalation which meant on public holidays he was in charge. He said that work involved rosters and approving breaks.¹

[4] On 1 June 2016, Mr Tanyi and Ms Simone Cannon had a discussion about Mr Tanyi’s participation in inappropriate conversations and innuendo in the work place. There was a record kept of that discussion which Mr Tanyi signed.² Mr Tanyi agreed that the record was an accurate record of the discussion.³

[5] It records that Mr Tanyi acknowledged his participation in inappropriate conversations and innuendo in the workplace; that he agreed that inappropriate subject matter and innuendo had no place in the workplace; that he understood that Foxtel had a zero tolerance policy in relation to inappropriate subject matter and innuendo at the workplace; and that Mr Tanyi was confident that this matter would go no further and that all issues of concern would cease.”⁴

[6] The record notes that Mr Tanyi was advised that this was serious and if further incidents were reported, further action may include written warnings or termination of employment. Mr Tanyi advised that he understood this.⁵

[7] On 10 August 2016, Mr Tanyi received a warning about three incidents. There was a meeting about these incidents and Mr Tanyi signed the formal meeting record.⁶ Mr Tanyi agreed that the record accurately described what occurred at the meeting.⁷

Allegation 1

[8] On 28 July 2016, Mr Tanyi was having a discussion on the floor whereby people were discussing swallowing tablets and he made a comment saying that this particular person ‘must have been a lesbian which is the reason she cannot swallow’.⁸

[9] The record notes that Mr Tanyi said he could not recall saying this but if he did it would have been a joke.

Allegation 2

[10] On 28 July 2016, a couple of people on the floor were eating bananas and Mr Tanyi asked if they “like eating bananas” and “how much could be fit in their mouths.”⁹

[11] The record notes Mr Tanyi said no comment when asked about the allegations and then said that this joke would have been with friends on the floor and that the joke would have been “two-way”.

Allegation 3

[12] On 29 July 2016, Mr Tanyi and a number of other staff were involved in a mutual conversation about a team member’s beard which was observed to have red hair in it. Mr Tanyi then asked this individual, in front of others, “if their downstairs region was the same colour”.¹⁰

[13] The record notes that Mr Tanyi acknowledged this comment and accepted that it was inappropriate.

[14] As a result, Mr Tanyi was given a first and final warning.¹¹ Mr Tanyi was advised that there was “a pattern of behaviour in regards to inappropriate harassment on the floor with other staff.”¹² He was told this conduct was a breach of Foxtel’s Harassment, Sexual Harassment and Bullying Policy and Foxtel’s values. He was advised that he was being given a first and final warning. Mr Tanyi was given a copy of the policy.

[15] Due to an unrelated event in August 2016, all employees were provided with a copy of the Foxtel Code of Conduct¹³, the Performance and Misconduct Policy¹⁴ and the Harassment, Sexual Harassment and Bullying Policy.¹⁵ Mr Tanyi acknowledged receipt of the policies by signing each of the documents.

[16] On 5 June 2017, Mr Tanyi was stood down with pay as a result of allegations of bullying. A meeting to discuss the allegations was held on 8 June 2017. As a result, Mr Tanyi was given a second final warning letter which was signed by Mr Tanyi.¹⁶ It was agreed that this letter was given to Mr Tanyi on 13 June 2017.¹⁷ Mr Tanyi accepted that the letter set out what was discussed in the meeting.¹⁸ No other record of that meeting was before the Commission.

[17] In the letter of warning, the following allegations were made that Mr Tanyi:

Allegation 4

[18] Mr Tanyi displayed rude behaviour to his fellow colleagues, Mr Benjamin Moschini including hand gestures of a sexual nature behind Mr S’s back.¹⁹

[19] In the letter it was said that Mr Tanyi accepted that he had made hand gestures to Mr Moschini but said that this was instigated by Mr Moschini.

Allegation 5

[20] Mr Tanyi communicated with his colleague, Mr S, in the ‘third person’ rather than direct or by name.²⁰

[21] Mr Tanyi accepted that he referred to Mr S in the third person as they avoided talking to each other.

Allegation 6

[22] Mr Tanyi displayed poor tone and attitude when in his caretaking role and used his authority.²¹

[23] Mr Tanyi denied inappropriately using his authority.²²

[24] In addition to receiving the second final warning Mr Tanyi was moved from the caretaker role; denied incentives; his roster was changed to minimise his working with Mr Moschini and Mr S; he was required to apologise to Mr Moschini and Mr S and any other colleague that he may have offended; he was required to have regular meetings with his team leader; and was required to re-read and sign and acknowledge the Code of Conduct.²³

[25] On 23 June 2017, Mr Tanyi was again suspended. He was advised that he was required to maintain confidentiality in relation to the matter. He was required to attend a meeting that day to discuss behaviour in the workplace; the code of conduct; and harassment, sexual harassment and bullying.²⁴

[26] Mr Sam Senior, the Customer Experience Manager-Technical, conducted the meeting with Mr Tanyi. Mr Senior said a number of allegations were put to Mr Tanyi at the meeting.

Allegation 7

[27] Mr Tanyi made sexually inappropriate comments on the floor about a staff member. When they went to the toilet, Mr Tanyi asked where they were going. They asked why and if he wanted a live stream. This was said in a sarcastic or joking way, to which Mr Tanyi replied “only if it is [unnamed staff member].”²⁵

Allegation 8

[28] Mr Tanyi openly discussed his sexuality on the floor despite people directly advising they did not want to discuss it.²⁶

Allegation 9

[29] Mr Tanyi made other people feel uncomfortable through personal space and body language such as reaching across desks intentionally.²⁷

Allegation 10

[30] Mr Tanyi spoke to other employees and presented his warning letter.²⁸

[31] Mr Tanyi initially told Mr Senior that he had no recollection of the events detailed in the allegations/witness statements provided by staff.²⁹ Mr Senior said that Mr Tanyi admitted discussing a specific case with Mr Moschini, including confidential details and outcomes.³⁰ As a result, Mr Tanyi was stood down whilst the matter was investigated.

[32] Mr Tanyi attended another meeting on 27 June 2017.³¹ Mr Senior said that prior to advising Mr Tanyi that his employment would be terminated, he asked him if he had anything else to add. To which Mr Tanyi said no.³²

[33] The termination letter given to Mr Tanyi on 27 June 2017.³³ Mr Tanyi said that the letter was read out to him in the meeting and it had been prepared prior to the meeting.³⁴

[34] The termination letter advised that Mr Tanyi had said he had no recollection of any sexually inappropriate comments about an employee going to the toilet; alleged that there was a personal vendetta against him; understood the outcome of breaching confidentiality could result in being terminated; did not present his warning letter to anyone however others could see it on his desk.

[35] Foxtel terminated Mr Tanyi’s employment on 27 June 2017 and he was paid four weeks in lieu of notice.

Consideration

Allegation 1

[36] Foxtel did not call any witnesses to this allegation. In his evidence in chief, Mr Tanyi did not accept that he used the word lesbian but admitted that his comment was a “bit risqué”. In cross examination however Mr Tanyi said that “the lesbian joke wasn’t even about anyone that even worked at Foxtel. It was a joke between me and a colleague who asking for a Panadol, which I gave him. It was just, you know, talk between colleagues, really. I just made a risqué joke which he even laughed at the time.”³⁵

[37] Mr Tanyi said that this was nothing unusual and that there was a lot of sexual banter in the workplace. He did not give any specific evidence about this. Mr Heath Durrant, who was a Team Leader, gave evidence that other employees made sexually inappropriate jokes in the workplace.³⁶ However it was his evidence that since he became a Teal Leader in 2014, he did not hear any sexually inappropriate jokes in the workplace.³⁷ Mr Durrant also gave evidence that after an unrelated incident in August 2016, which resulted in all employees being reissued with copies of the policies, that there was less innuendo and banter.³⁸

[38] I am satisfied that Mr Tanyi did make the statement as alleged. His own evidence confirms this. I am therefore satisfied that Allegation 1 is substantiated.

Allegation 2

[39] On 2 August 2016, Mr Moschini sent an email to Mr Daniel Generutti in which he stated “whilst I was trying to work Steve from a distance was making inappropriate jokes in the workplace which was directed towards me.” When asked for more detail Mr Moschini said “making inappropriate jokes about any fruit or food example: whilst I was eating a banana/subway he turned it into a sexual joke across the floor whilst in front of other people, I don’t really know what was said in the other conversations.”³⁹

[40] In cross-examination, in contrast to his witness statement, Mr Moschini conceded that Mr Tanyi’s behaviour was not appropriate⁴⁰ and that his email was accurate.⁴¹

[41] Mr Moschini, in response to Allegation 2, said that the statement was directed to him but he took no offence and he and Steve joke around inside and outside of work. He said they never shared the jokes in a group of people and that he welcomed the jokes. He said Mr Wes Scharhag kept harassing him for information about Mr Tanyi.⁴² In cross-examination, Mr Moschini accepted that other employees could have overheard what was said.⁴³

[42] Mr Tanyi gave evidence that Mr Moschini was walking around eating a banana and he said “you like eating big bananas don’t you Ben.” He accepted that it was a slight innuendo. He said it was a joke between friends. 44

[43] I am satisfied that the Mr Tanyi did make an inappropriate joke of the kind alleged. Such a finding is consistent with Mr Tanyi’s own evidence. I am satisfied that Allegation 2 is substantiated.

Allegation 3

[44] Mr Tanyi does not deny this allegation. He said that the person he was speaking about laughed.

[45] I am satisfied that Mr Tanyi did make this comment. This is consistent with his own evidence. I am satisfied that Allegation 3 is substantiated.

Allegation 4

[46] Mr Tanyi accepted that he made hand wanker gestures towards Mr Moschini but said he did not do it behind Mr Moschini’s back.⁴⁵ He said it was done as joke. In his witness statement he said he did this once or twice.⁴⁶ Mr Moschini said Mr Tanyi never displayed any rude behaviour or made inappropriate hand gestures behind Mr S’s back or to any other work colleagues. Mr Moschini accepted that Mr Tanyi made such gestures to him and he said that this occurred on more than one occasion.⁴⁷

[47] Mr Moschini did not know if Mr S witnessed the gesture but he did tell Mr S about Mr Tanyi’s conduct, but he did not tell him it was directed at him.⁴⁸

[48] Mr Durrant gave evidence in cross-examination that Mr S told him he had never seen the hand gestures as he was told they were happening behind his back.⁴⁹

[49] Mr Tanyi did not accept that this could have caused Mr S to be offended or humiliated because he hadn’t witnessed the Mr Tanyi’s behaviour.⁵⁰

[50] I am satisfied that Mr Tanyi made inappropriate hand gestures to Mr Moschini. I accept it was done at time that Mr S was with Mr Moschini but I am unable find that it was directed at Mr S and done behind his back. I am satisfied that Allegation 4 has only been substantiated in part.

Allegation 5

[51] Mr Tanyi accepted that he said to Mr Moschini and Mr S “people are starting to notice that you and your mate (Anthony) are taking extra breaks.” He did not consider that this was inappropriate.

[52] I am not satisfied that Allegation 5 is substantiated. I am not satisfied that the reference to Mr S as “your mate” is evidence that Mr Tanyi communicated with a colleague in the ‘third person’ rather than directly or by name. The evidence established that Mr Tanyi and Mr S did not get on and Mr Tanyi openly admitted that he did not speak to Mr S but this is not sufficient to support the allegation.

Allegation 6

[53] Mr Tanyi admitted that he spoke to Mr Moschini in Mr S’s presence about them taking longer than permissible breaks.⁵¹ Mr Moschini acknowledged that this occurred but also acknowledged that he did take extended breaks.⁵²

[54] I am not satisfied that Allegation 6 is substantiated.

Allegation 7

[55] In his witness statement, Mr Tanyi said he did not recall this conversation which he said he had with another employee. He said the allegation was incorrect and he did not make any sexual comments about Mr Kahn Ileri or to Mr Ileri. He said it was Mr Ileri who went to the toilet. He said he did not ask Mr Ileri where he was going and he did not make any comment about live streaming.⁵³

[56] In examination in chief, in response to a question about whether live streaming ever came up, Mr Tanyi said “”it would have been a joke that Madeline would have advised. But in no way was it aimed at Kahn.”

[57] I then advised Mr Tanyi of the need to give evidence about what was said and not what he thought he might have said.

[58] He then said “It went (sic) as Madeline was going to the toilet, I would have said “where are you going?”. She would have said, “I’m going to the toilet. Do you want to live stream it? I would probably have turned around, “No”. Then probably I would have made the slight comment saying, “maybe if it was Kahn.”

[59] He further confirmed that he did say “only if it was Kahn.”⁵⁴

[60] This evidence was confirmed in cross-examination. Mr Tanyi accepted that it was another employee who was going to the toilet and in response to her comment about wanting to live stream he said “no, only if was Kahn.”⁵⁵ Mr Tanyi said Mr Ileri was not present when the comment was made.⁵⁶ He accepted that it would not be appropriate to make such a remark if it was made to Mr Ileri.⁵⁷

[61] When asked why he had made such a comment, given he had been told that “joke or not, it’s not an excuse” he said he was just going along with the other employees joke and it was just him and his “mischievousness.”⁵⁸

[62] Mr Ileri gave evidence that on 19 June 2017 a female staff member got up and Mr Tanyi asked where she was going and she replied “the toilet, why do you need to know? Do you want a live stream? His response was “Only if it is Kahn.” Mr Ileri said that this made him feel disrespected. Mr Ileri was not present when this comment was made. He gave evidence that he was told about it by Madeline.⁵⁹

[63] I am satisfied that this conduct occurred as, despite his earlier denials, Mr Tanyi gave evidence that he did in fact make the statement. I am satisfied that Allegation 7 is substantiated.

Allegation 8

[64] Mr Tanyi said his sexuality was no secret⁶⁰ but it was not the subject of discussion or boasting. Mr Ileri said that Mr Tanyi would tell him about his sexuality at work. Mr Ileri said he was not entirely comfortable discussing that topic in a workplace. He said he told Mr Tanyi “a few times on occasions about his work, about his sexuality, I don’t need to know.”⁶¹ Mr Tanyi denied discussing his sexuality with Mr Ileri.⁶² Mr Durrant gave evidence that when he first met Mr Tanyi at work, Mr Tanyi told him he was gay.⁶³ Mr Tanyi gave evidence in chief that he probably would have mentioned to Mr Durrant that he was gay.⁶⁴ That was the limit of the evidence called by Foxtel to support this allegation.

[65] I am not satisfied on the evidence that Allegation 8, that Mr Tanyi discussed his sexuality on the floor despite people directly advising they did not want to discuss it, is substantiated. While I accept Mr Ileri’s evidence on this matter in preference to Mr Tanyi’s evidence, I am not satisfied that Mr Ileri’s comment was directly advising Mr Tanyi that he did not want to discuss his sexuality.

Allegation 9

[66] Mr Tanyi says he has no recollection of reaching across anyone’s desk but there would have been no sexual element if he had reached across a desk. H said he may have done it to check whether a TV was plugged in.

[67] No evidence was called to support this allegation. While Mr Ileri said he moved desk that was because he felt that he was being constantly watched/looked at by Mr Tanyi.⁶⁵ There is no evidence that Mr Tanyi was aware of this or there is no evidence that any other employees complained about this conduct or that it occurred.

[68] I am not satisfied on the evidence before the Commission that Allegation 9 is substantiated.

Allegation 10

[69] Mr Ileri said that Mr Tanyi showed him confidential paperwork on 12 June 2017 of previous incidents with other colleagues. In cross-examination, Mr Ileri accepted that he may have been shown the letter on 13 June 2017.⁶⁶ Mr Tanyi told him he had received a warning and any discussion of this would lead to termination of his employment. On 15 June 2017, when Mr Ileri said he did not want to know about this information, Mr Tanyi showed him the relevant paragraph from the warning letter.

[70] Mr Tanyi, in cross-examination, cannot recall showing Mr Ileri the letter and he didn’t think he had done so.⁶⁷ He said Mr Ileri would have asked him what was going on and there was a discussion.⁶⁸

[71] It is not clear to me how Mr Tanyi could have shown his warning letter to Mr Ileri on 12 June 2017 when it was accepted by the parties that the letter was not given to Mr Tanyi until 13 June 2017. I accept however on Mr Tanyi’s evidence that there was some discussion about the warning letter.

[72] I accept Mr Tanyi did show Mr Ileri the second page of the letter on 15 June 2017. There was no confidential information on page 2 of the letter.

[73] I am not satisfied that Mr Tanyi breached any obligations of confidentiality. Mr Tanyi was required as part of that warning to apologise to Mr S, Mr Moschini and any other colleagues he may have offended. It is difficult to imagine how he could maintain confidentiality whilst doing this. Further, while I accept that an employer can direct an employee not to discuss complaints whilst an investigation is being undertaken, provided this does not limit the employee’s ability to gather evidence necessary to substantiate their version of events, it is not clear to me that an employer has the right to direct an employee not to discuss the matter with other employees once the investigation is concluded. It is difficult to see how the letter provided to Mr Tanyi was Foxtel’s confidential information.

[74] I am not satisfied that Allegation 10 is substantiated.

Was the termination of employment harsh, unjust or unreasonable?

[75] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

[76] Mr Tanyi engaged in an inappropriate pattern of behaviour in the workplace. While not all the allegations made by Foxtel are substantiated, the core complaints that Mr Tanyi behaved in an inappropriate manner on multiple occasions in the workplace was substantiated.

[77] Much of what occurred was not in conflict. Mr Tanyi made clear admissions about his conduct and accepted that it was not appropriate. Mr Tanyi received multiple warnings about his conduct. Whatever criticisms that there may be about the manner in which Foxtel “trained” its employees about their obligations under the policies, Mr Tanyi was taken to specific examples of his conduct and told that it was not acceptable and must not be repeated. It should have been clear to Mr Tanyi that Foxtel would not excuse his behaviour just because he was “joking”. He had tried that excuse before and Foxtel made it clear to him in 2016 and in 2017 that this was not an acceptable excuse.

[78] Mr Tanyi was dismissed because he was unable to change his behaviour. Foxtel was entitled to require its employees meet a certain standard of behaviour. The standard was not unreasonable. Employees are entitled to work in an environment free of sexual innuendo and inappropriate jokes. This was not a case of one strike and you’re out. Mr Tanyi was spoken to; given a first and final warning and then given a second final warning. Two weeks after he received his second final warning, he engaged in the same type of behaviour. It is not an excuse that he was simply responding to another employee’s inappropriate comment. It was also not an excuse that the person he commented about did not hear the comment directly. It was not surprising that the comment was relayed to Mr Ileri and it was not surprising that he was offended.

[79] I am satisfied that there was a valid reason for Mr Tanyi’s dismissal.

s387(b) whether Mr Tanyi was notified of that reason;

[80] It was submitted that Mr Tanyi was not notified of the reasons for his dismissal in clear terms and some of the matters relied upon by Foxtel were not raised with him at all. I am required to determine if Mr Tanyi was notified of the valid reason for his dismissal and in relation to the pattern of behaviour that I have found to be substantiated, he was notified of those reasons.

s387(c) whether Mr Tanyi was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[81] I am satisfied that Mr Tanyi was given an opportunity to respond to the reason related to his conduct. I accept that he was not given an opportunity to respond to some of the allegations relied upon by Foxtel but he was given an opportunity to respond to the key allegations put against him.

s387(d) any unreasonable refusal by the employer to allow Mr Tanyi to have a support person present to assist at any discussions relating to dismissal;

[82] There was no refusal to allow a support person.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mr Tanyi had been warned about that unsatisfactory performance before the dismissal;

[83] The dismissal did not relate to performance but to his conduct so this criteria is not relevant.

s387(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;

s387(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal;

[84] I am satisfied that Mr Tanyi was afforded procedural fairness so these criteria are not a relevant consideration.

s387(h) any other matters that the Fair Work Commission considers relevant.

[85] It was submitted that Mr Tanyi was not treated in a good and considerate manner. The evidence does not support this submission. Mr Tanyi was not singled out. Complaints were made against him and Foxtel was required to investigate those complaints. Mr Tanyi made admissions in relation to the core allegations. Mr Tanyi was not dismissed immediately. Foxtel did not act on the first and final warning and dismiss Mr Tanyi the next time he repeated the behaviour. He was given another chance. However, he failed to take advantage of the opportunity and he continued with his inappropriate “jokes”.

[86] It was submitted that the training provided to employees in relation to the policies was inadequate and I agree. An employer needs to do more than hand a copy of the policy to employees and obtain their signature. Had that been all that had occurred in this case, I may have reached a different conclusion. But here the records of meeting show that Mr Tanyi understood that his conduct was not accepted and must change. He was taken to specific examples of his inappropriate conduct and he was told it must not be repeated. He also knew that if his behaviour did not change he would be subjected to further disciplinary action, including dismissal. In the first and final warning, he was given clear expectations. This was repeated when he received his second final warning. He was clearly told to “cease jokes, comments, advances, gestures of any kind that may offend another person.”⁶⁹ He did not.

[87] It was submitted that there were comments and gestures made by other employees. Whilst inconsistent treatment may result in a finding that a dismissal was unfair, there was no evidence that there were any employees with a record similar to Mr Tanyi that were treated more leniently.

Conclusion

[88] Foxtel had a valid reason for the dismissal and Mr Tanyi was afforded procedural fairness. I have considered whether the dismissal was harsh, unjust or unreasonable in all the circumstances.

[89] A dismissal may be:

• harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;

• unjust, because the employee was not guilty of the misconduct on which the employer acted; and/or

• unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer." ⁷⁰

[90] The dismissal was not unjust or unreasonable as I have found that Mr Tanyi did engage in the substantive conduct alleged by Foxtel. It was not harsh as it was not a disproportionate response to Mr Tanyi’s inability to change his behaviour in the workplace and there was no evidence to support a finding it was harsh because of the consequences for Mr Tanyi’s personal or economic situation.

[91] Mr Tanyi’s application for an unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

G. Dircks for the Applicant.

T. Hudson for the Respondent.

Hearing details:

2017.

Melbourne:

14 September.

1 Exhibit A1 at [1] and [5]

2 Exhibit R4

3 Transcript PN 160

4 Exhibit R4

5 Transcript PN 162

6 Exhibit R5

7 Transcript PN 188

8 Exhibit R5

9 Ibid

10 Ibid

11 Ibid

12 Ibid

13 Exhibit R2

14 Exhibit R3

15 Exhibit R1

16 Exhibit R6

17 Transcript PN 217-218

18 Ibid PN 221

19 Exhibit R6

20 Ibid

21 Ibid

22 Ibid

23 Ibid

24 Exhibit R7

25 Exhibit R8

26 Ibid

27 Ibid

28 Ibid

29 Exhibit R11 at [26]

30 Ibid at [28]

31 Transcript PN 347

32 Exhibit R11 at [33]

33 Exhibit R8

34 Transcript PN 397

35 Ibid PN 237

36 Exhibit R9 at [7]

37 Transcript PN 628

38 Ibid PN 682-683

39 Exhibit A4

40 Transcript PN 476

41 Ibid PN 477

42 Exhibit A3 at [1]

43 Transcript PN 472

 44   Exhibit A1 at [13]

45 Ibid at [21]

46 Ibid at [20]

47 Transcript PN 484-488

48 Ibid PN 485-493

49 Ibid PN 661

50 Ibid PN 240

51 Exhibit A1 at [20]-[24]

52 Transcript PN 453

53 Exhibit A1 at [33]-[35]

54 Transcript PN 47-53

55 Ibid PN 316

56 Ibid PN 324

57 Ibid

58 Ibid PN 325-326

59 Ibid PN 840-842

60 Ibid PN 60

61 Ibid PN 822

62 Ibid PN 54

63 Exhibit R9 at [9]

64 Transcript PN 57

65 Exhibit R10 at [5]

66 Transcript PN 818

67 Ibid PN 340

68 Ibid PN 45

69 Exhibit R6

70 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-468 per McHugh and Gummow JJ.

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