Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
[2015] FWCFB 5906
•30 SEPTEMBER 2015
| [2015] FWCFB 5906 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2015/4782)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY,30 SEPTEMBER 2015 |
Appeal against decision PR568646 of Deputy President Abey at Hobart on 25 June 2015 in B2014/1735
[1] The Tasmanian Water and Sewerage Corporation Pty Ltd (TasWater, the appellant), has sought permission to appeal a decision 1 of Deputy President Abey, made on 25 June 2015. The decision concerned an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Electrical, Energy and Services Division – Tasmanian Divisional Branch (CEPU, the respondent) for a scope order under s.238 of the Fair Work Act 2009 (the FW Act).
[1] The Deputy President granted the scope order in the terms sought by the CEPU.
[2] The appeal was heard in Melbourne with a video link to Hobart on 13 August 2015. The appellant was represented by Mr D Barclay of counsel. The respondent was represented by Mr E White of counsel.
[3] At the conclusion of the hearing we indicated that permission to appeal was refused. These are the reasons for that decision.
Background
[4] TasWater came into being on 1 July 2013 by virtue of the Water and Sewerage Corporation Act 2012 (Water Corporation Act). TasWater replaced and consolidated the resources of four previous separate legislative entities, namely:
- Tasmanian Water and Sewerage Corporation (Northern Region) (Ben Lomond Water);
- Tasmanian Water and Sewerage Corporation (North West Region) (Cradle Mountain Water);
- Tasmanian Water and Sewerage Corporation (Southern Region) (Southern Water); and
- Tasmanian Water and Sewerage Corporation (Common Services) (Onstream).
[5] The appellant had been seeking to bargain for a single enterprise agreement with state wide coverage to replace the three agreements that were in place:
- Tasmanian Water and Sewerage Corporation (Southern Region) Enterprise Agreement 2010-2014;
- Cradle Mountain Water Enterprise Agreement 2010; and
- TasWater (Northern Region) Enterprise Agreement 2013.
[6] Bargaining for a new agreement commenced in April 2014 between the appellant and the CEPU, the Australian Workers’ Union (AWU), the Association of Professional Engineers, Scientists, and Managers (APESMA), the Community and Public Sector Union (CPSU), the Australian Manufacturing Workers’ Union (AMWU), the Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Construction, Forestry, Mining and Energy Union (CFMEU). These unions formed a Single Bargaining Unit (SBU) shortly after negotiations commenced.
[7] Between April and December 2014 there were approximately 24 bargaining meetings. According to the Deputy President, while some progress was made, certain key issues remained in dispute. These were characterised by the Deputy President as being about the protection of existing conditions.
[8] On 17 December 2014 the CEPU sent a ‘Notice of Concerns’ to Ms Garrott, the lead negotiator for TasWater, that indicated that the employee bargaining representatives shared a concern that the bargaining for the proposed agreement was not proceeding fairly or efficiently. This was because:
a) the claims of groups of employees in a particular location, as determined by the existing enterprise agreement, were not being given appropriate consideration;
b) the agreement proposed by TasWater would apply significantly differing impacts on employees’ current terms and conditions of employment, depending on their location of work;
c) as such it was unlikely that a majority of employees would vote to approve the proposed agreement;
d) the proposed agreement was an inefficient exercise of consolidation of disparate terms and conditions of employment;
e) the existing enterprise agreements covered the appropriate employees and the proposed agreement would not cover appropriate employees.
[9] Following a response from TasWater that it intended to continue to pursue a single enterprise agreement, the unions made an application to the Commission for a scope order on 31 December 2014.
[10] The order sought by the unions was to the effect that the employees that were proposed to be covered by a single state-wide agreement would instead be covered by three separate agreements with a scope coinciding with the existing enterprise agreements.
[11] Following an unsuccessful attempt at conciliation, the application was heard by the Deputy President on 14, 15, 18 and 19 May 2015.
The Deputy President’s Decision
[12] In his decision of 25 June 2015 the Deputy President outlined the history of the bargaining process and the evidence concerning union coverage.
[13] DP Abey then turned to consider the application in the light of the relevant legislative provisions, in particular s.238 of the FW Act. The issues in contention arose under s.238 (4). That section provides:
‘When the FWC may make scope order
(4) The FWC may make the scope order if the FWC is satisfied:
(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and
(b) that making the order will promote the fair and efficient conduct of bargaining; and
(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and
(d) it is reasonable in all the circumstances to make the order.’
[14] DP Abey first considered s.238 (4) (a) of the Act concerning good faith bargaining. The good faith bargaining requirement are set out in s. 228 of the FW Act, which states:
‘228 Bargaining representatives must meet the good faith bargaining requirements
(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the agreement.
(2) The good faith bargaining requirements do not require:
(a) a bargaining representative to make concessions during bargaining for the agreement; or
(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.’
[15] At paragraph [78] of his decision the Deputy President found that the requirements of s.228 (1) (a), (b) and (f) had been met and that there was no doubt that the SBU, at all relevant points, were genuinely trying to reach an agreement. He went on to say in paragraph [79] that the focus of the respondent’s evidence and submissions was on s.228 (1) (c), (d) and (f).
[16] In considering the requirements of s.228 (1)(c), (d) and (f) DP Abey discussed the evidence put forward in relation to the conduct of the parties at the bargaining sessions and noted that the bargaining sessions were ‘robust and even at times acrimonious.’ 2 He noted that the SBU’s media releases and newsletters ‘may not have been to the liking of the respondent’ but did not find that they breached the good faith bargaining requirements.3
[17] The Deputy President noted that the SBU provided a number of different logs of claim during the bargaining process but found that:
‘Whilst this undoubtedly causes difficulties and frustration for the respondent, in my experience it is not unusual nor is it proscribed. Bargaining representatives are entitled to modify or refine their position during the course of negotiations. That is the nature of bargaining.’ 4
[18] The Deputy President rejected the proposition that an offer made by the SBU on a non-negotiable basis in July 2014 was contrary to good faith bargaining requirements. 5
[19] The Deputy President then considered whether events in December 2014 constituted a breach of the good faith bargaining requirements. As described earlier in the decision, on 4 December 2014 a bargaining meeting was held at which the SBU presented TasWater with a new proposal in the form of a single enterprise agreement. Further meetings were programmed for later in December. On 8 December 2014 an electronic version of the proposal was emailed to TasWater, allegedly containing an additional 14 items. TasWater then provided a written response, at a bargaining meeting on 11 December 2014, identifying areas of agreement, areas of disagreement, and areas ‘where further negotiation was likely to achieve agreement.’ The SBU expressed disappointment with the response and indicated that it would no longer meet with TasWater on 15 December 2014 ‘but instead would caucus on that day themselves and that the SBU would consider what options were available to them.’ 6
[20] The Deputy President commented:
‘There comes a time in many negotiations where one party or the other chooses to take a step back and consider their position. This is what occurred on 11 December, and in any event, a further meeting was scheduled and occurred on 17 December 2014.
I am similarly unable to conclude that this event was contrary to the good faith bargaining requirements.’ 7
[21] The Deputy President then considered the events immediately before and including the break down in negotiations on 17 December 2014. He found that:
‘On the evidence before me I am satisfied that the negotiations broke down, not because of a failure to reach agreement on say dispute resolution or classification structure, notwithstanding these has been included in the “die in a ditch” list, but rather, failure to reach agreement on a number of key issues which the SBU identified as amounting in a significant reduction in conditions.’
[22] These were:
● On call Allowance (SW Agreement)
● Handling Sewer Matter Allowance (SW Agreement)
● Adverse Working Conditions Allowance (Cradle Mountain Water)
● Job Security clause (Ben Lomond Water).
[23] The Deputy President noted that while a single agreement had been ‘TasWater’s key agenda (and non-negotiable) item from the outset’ 8
‘As early as November 2013 the CEPU expressed reservations as to whether a single agreement was achievable. The potential loss of conditions was at the heart of these concerns.
This position was reflected in the nature of the SBU log of claims presented at the first substantive bargaining meeting on 7 May 2014. In my assessment the SBU members were at best ambivalent towards the concept of a single EA. The SBU was prepared to explore the concept provided members were not disadvantaged; hence the “best of the best” strategy. It was a position akin to the adage, “everyone’s house is for sale, all that needs to be determined is the price”.’ 9
[24] The Deputy President drew attention to an email from one of the union representatives to TasWater in July 2014 emphasising the unions’ position that no employee should lose a single entitlement through the process of combining the four water agreements. ‘If we were to negotiate the agreements separately, this position would have been well understood by those on the employer team…’ 10
[25] The Deputy President was satisfied that TasWater should have had no difficulty in understanding why the SBU had rejected its last offer.
‘Whilst it may have been prudent for the SBU to spell out in detail the perceived shortcomings of the TasWater position and what was required to retrieve the position, I accept that it would have been stating the obvious. I conclude that the SBU could and should have responded in a more considered manner as envisaged by the Act. I also acknowledge that the SBU felt strongly that an impasse had been reached and decisive action was required.’ 11
[26] The Deputy President concluded:
‘On balance I am satisfied that the CEPU/SBU has met and continues to meet the requirements of good faith bargaining.’ 12
[27] The Deputy President next considered s.238 (4) (b): whether the issuing of an order would promote fair and efficient conduct of bargaining.
[28] He first considered the issue of ‘efficiency’. In terms of the impact on the resources of the bargaining parties he found there were clearly ‘winners and losers’. 13
[29] The Deputy President however then looked at the likelihood of reaching agreement as a measure of efficiency. Here he noted that ‘no progress towards a single EA has been made in the past six months.’ 14
[30] He stated:
‘On the evidence before the Commission, I conclude that, absent a fundamental change or circuit breaker, the likelihood of reaching agreement in the foreseeable future is remote.’ 15
[31] On the basis of the evidence he found that the ‘root cause’ of the failure to reach an agreement on the key points of difference was to be found in the bargaining process itself and that it was difficult to see how the same failure would manifest under a three regional model EA. 16
[32] In his decision DP Abey found:
‘Whilst of course there can be no guarantee that the grant of the scope order would result in agreement/s being reached, based on the foregoing discussion, I consider it a far more likely outcome than would be the position if the single EA scope is persisted with.
Based on this, coupled with the neutrality of the ‘resources’ discussion, I am satisfied that the scope order sought would, if granted, promote a more efficient conduct of bargaining than the alternative.’
[33] The Deputy President then turned to the issue of ‘fairness’. He noted:
‘At the heart of this dispute is the view held by the SBU members that individuals and groups of employees will be disadvantaged in terms of loss of conditions of employment.’ He considered that this view was ‘not without justification’. 17
[34] He considered the unions concern that under a single EA model a majority of employees could ‘out vote’ those employees in a single region and concluded:
‘The scope order sought by the applicant will largely eliminate the ability a sectional groups to be outvoted by others who have no particular interest in the issue which the former sector seeks to protect.’ 18
[35] The Deputy President concluded:
‘I am satisfied that the scope order will create a situation whereby bargaining is fairer than under the single EA model.
It follows therefore that on balance, I am satisfied that the making of the order will promote the fair and efficient conduct of bargaining consistent with s.238 (4) (b).’ 19
[36] In relation to s.238 (4) (c) the Deputy President noted that TasWater conceded that the three regional agreement scope was fairly chosen.
[37] In considering s.238(4)(d) - whether it was reasonable in all the circumstances to make the scope order the Deputy President considered the views both of the employees and the employer. He concluded that:
‘… the views of employees and that of TasWater are evenly balanced, and that this application should not be decided on this criterion.
There is however one compelling factor which tips the balance in favour of granting the application.
The status quo in terms of industrial instruments is three regional EAs. It is TasWater that seeks to alter the status quo and as such bears the onus of convincing the SBU and employees as to the validity of this position. The respondent has failed to do so.
As I understand the position of the SBU, they now seek to roll over existing agreements with a wage increase consistent with prevailing industrial standards. This is hardly an outrageous position and one which is comfortably within the financial bargaining parameters of TasWater, although I recognise that it does not meet the strategic objectives of the respondent.
I propose to grant the scope application in the terms sought.’ 20
The Appeal
[38] Under s.604 of the FW Act, appeals require the permission of the Commission. There are two bases in s.604 for granting permission to appeal. If the Commission is satisfied that it is in the public interest to grant permission it must do so. Otherwise the conventional considerations for granting permission apply: if there is sufficient doubt about a decision to warrant its reconsideration or an injustice may result if permission is not granted. 21
[39] Factors that might invoke the public interest have been held to include where a matter raises issues of importance and general application, where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counterintuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters. 22
[40] The Deputy President’s decision involved the exercise of a significant level of discretion, in the sense that the decision involved the weighing of a number of factors, and in which no one particular outcome was prescribed.
[41] The principles relevant to an appeal from such a decision are those in House v The King:
‘The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’ 23
[42] The grounds of appeal set out in the notice of appeal were as follows:
1. Deputy President Abey erred in that he determined [at 131 and 158] that the onus was on the appellant to satisfy the respondents of the validity of its position in respect to the status quo when:
(a) the issue of status quo was not relevant to a consideration of onus;
(b) the onus was on the respondent to satisfy the Deputy President that the scope order it sought should be made; and
(c) the conclusion that the appellant had an onus to satisfy the respondent of the validity of its position was irrelevant to the scope application and whether or not the Deputy President should be satisfied that the scope order sought should be made.
2. Deputy President Abey erred in that he determined [at 158] that the status quo in terms of industrial instruments was a significant factor in tipping the balance in favour of the respondent when:
(a) the issue of scope was not a factor on which the respondent relied to determine that bargaining was not proceeding efficiently or fairly;
(b) the status quo for bargaining was in fact one proposed enterprise agreement for all of the appellant’s employees;
(c) two of the three agreements were transferrable instruments and the third approved for the purposes of passing on a pay rise and in the circumstances the parties had understood that once TasWater was created the parties would move to a single agreement;
(d) only 1 of the 22 priority items identified by the SBU on 1 December 2014 was regionally based namely the adverse working conditions allowance.
3. Deputy President Abey erred by granting the application having found [at 101] that the reason that bargaining was not proceeding efficiently or fairly (if it was not) was due to the inability to reach agreement on the terms and conditions of the employee’s employment and not scope.
4. Deputy President Abey erred by failing to find that the reason why bargaining was not proceeding efficiently or fairly (if it was not) was due to considerations other than scope.
5. That Deputy President Abey erred [at 121] in considering whether a measure of efficiency for the purposes of efficient or fair bargaining involved the likelihood of reaching agreement when the question whether agreement was likely to be reached was not relevant to the question of scope.
6. Deputy President Abey erred [at 132] in determining that the cause of failure to reach agreement was the bargaining process when there was no evidence to support that conclusion and where the evidence was that the reason agreement had not been reached was because the parties could not agree on terms and conditions.
7. That Deputy President Abey erred [at 112] in finding that the respondent’s had met the requirements of good faith bargaining when:
(a) he found [at 80] that: ‘the evidence demonstrated that the bargaining sessions were robust and even at times acrimonious. There is evidence of a difficult relationship between Mr Harkins and Ms Garrott in particular and the communication style of the former might at times be reasonably described as disrespectful’;
(b) the SBU issued media releases and newsletters which were false and misleading;
(c) the SBU failed to provide relevant information to assist in the bargaining process in particular: failing to provide a finalised log of claims with wages claims; refusing and/or failing to provide relevant bargaining information in the times requested and/or promised; and failed to provide relevant bargaining documentation in the manner and/or format requested and/or promised;
(d) the SBU failed to respond to the appellant’s proposal of 15 December 2014 in circumstances where the Deputy President found [at 111] that the SBU could and should have responded in a more considered manner as envisaged by the Act;
(e) members of the SBU had breached recommendations of Lee C [at 99];
(f) the SBU obtained confidential information from the appellant and published that information when the SBU knew the information remained confidential;
(g) the SBU, at a very late stage abandoned a commitment to negotiate in respect to a single agreement;
(h) on 5 February 2015 the SBU reverted to a proposal made on 4 December 2014 which provided for, inter alia, a single agreement.
8. Deputy President Abey erred in determining [at 134] that the scope order sought would, if granted, promote more efficient bargaining when he:
(a) failed to give any or any sufficient weight to the fact that there would be a triplication of resources required to bargain in respect to three agreements;
(b) considered [at 118] that there would be more efficient utilisation of delegate resources when delegates are not bargaining representatives and when there was no evidence to enable the finding to be made;
(c) failed to give sufficient weight to the finding [at 119] that bargaining for three agreements would be more resource intensive for the appellant;
(d) failed to give any or any sufficient weight to the fact that only 1 of the 22 priority items identified by the SBU on 1 December 2014 was regionally based namely adverse working conditions allowance.
9. Deputy President Abey when considering fairness, erred by (impliedly) determining [at 145] that the bargaining would be fairer if the ability of a sectional group to be outvoted by others who had no particular interest in the issue which the another sector seeks to keep when there was no, or insufficient, evidence for such a determination.
10. Deputy President Abey erred by failing to have regard to the fact that unfairness would be created by having employees in the same organisation, doing the same or substantially similar work, being on different terms and conditions.
11. Deputy President Abey erred in that he determined [at 121] that bargaining was not proceeding efficiently or fairly when it was.
12. Deputy President Abey erred in that he determined that the application should be granted when no properly directed tribunal could, having regard to the facts of the case, have so determined.
13. Deputy President Abey, in considering reasonableness erred [at 157] by failing to find that in the circumstances of the instant case the views of the appellant should carry greater weight because:
(a) the appellant is a statutory authority which was obliged to operate consistently with the principal objectives as defined by the Water and Sewerage Corporation Act 2012.
(b) the Principal objectives are:
i. to efficiently provide water and sewerage functions in Tasmania;
ii. to encourage water conservation, the demand management of water and the re-use of water on an economic and commercial basis;
iii. to be a successful business and, to this end -
to operate its activities in accordance with good commercial practice; and
to deliver sustainable returns to its members; and
to deliver water and sewerage services to customers in the most cost-efficient manner;
(c) one agreement would achieve consistency with the principal objectives;
(d) only 2 aspects of the 4 terms and conditions of employment found by the Deputy President [at 101] to cause negotiations to break down were regionally based.
[43] At the commencement of the hearing, Mr Barclay sought permission to add a further ground that there was insufficient evidence to enable the Deputy President to make the findings that he did at [153] concerning the views of the employees.
Consideration
[44] There was considerable evidence tendered during the proceedings before Abey DP. We state at the outset that we can find no significant error in the way that the Deputy President analysed that evidence or in the factual findings he made based on that evidence. In particular, we consider that his finding that making the scope order would increase the likelihood that an agreement (or agreements) could be reached was reasonably open to him on the evidence.
[45] In relation the first and second grounds of appeal, we consider that the appellant has mischaracterised the Deputy President’s decision. All that the Deputy President is saying at [158] is that it is TasWater that is seeking to alter the status quo (of three regional agreements) and that it has to persuade the unions as to the validity of its position if it is to succeed in achieving a single state-wide agreement – something that it has failed to do. This is little more than stating the obvious. Clearly the Deputy President’s comments in this part of his decision must be seen in the context of his earlier finding of the greater likelihood of success if the scope order was to be granted, together with his subsequent comment that the union’s proposal to roll over the existing agreements ‘is hardly an outrageous position.’ We see no reason to find that these are factors to which the Deputy President may not have regard in deciding whether to make a scope order.
[46] With regard to the third, fourth and fifth grounds of appeal, we do not consider that is was an error on the Deputy President’s part to have regard to the difficulties the parties were having in reaching agreement in determining whether bargaining was proceeding efficiently. While the matters in dispute that were proving obstacles to reaching agreement were not directly about scope, it was reasonable for the Deputy President to judge that it would be easier to overcome them if the scope order was made.
[47] With regard to the sixth ground of appeal, we consider that it was reasonable for the Deputy President to infer from the evidence before him that the root cause of the failure to reach agreement was to be found in the bargaining process itself.
[48] Appeal ground seven attacks the finding that the CEPU had met the good faith bargaining requirements. The Deputy President analysed the submissions put forward by TasWater and the related evidence on this point in some detail. While he had some critical things to say about aspects of the way in which the SBU conducted itself during the negotiation process we can see no error of the type described in House v King in his finding that, on balance, the respondent had met the good faith bargaining requirements.
[49] With regard to the eighth appeal ground, we are satisfied that all the factors that the Deputy President took into account in determining whether the scope order would promote the efficient conduct of bargaining were relevant. Consistent with the principles in House v King, the weight to be attached to each factor was a matter for the Deputy President’s judgement. Similar considerations apply to the ninth ground of appeal.
[50] We can find no basis for the assertion that the Deputy President was bound to have regard to the alleged unfairness that would be created by having employees in the same organisation doing the same or similar work being on different terms and conditions, as implied by the tenth ground of appeal.
[51] On the basis of the evidence before him, it was open to the Deputy President to find that bargaining was not proceeding efficiently or fairly. Indeed we find the suggestion in the twelfth ground of appeal that it was proceeding efficiently as somewhat bizarre in the circumstances.
[52] In relation to the thirteenth ground of appeal, we repeat what we said above, that the weight to be given to relevant factors was a matter for the Deputy President to determine. Even if we were of the view that he should have given a different weight to particular factors that would not be basis for finding an appealable error.
[53] In relation to the additional ground of appeal raised by Mr Barclay at the hearing, we consider that it was reasonable for the Deputy President to infer the views of the employees from those of their representatives, in circumstances where there was no persuasive countervailing evidence.
Conclusion
[54] We are not persuaded that the Deputy President made any appealable error. Nor are we persuaded that the public interest is enlivened. In these circumstances we do not consider it appropriate to grant permission to appeal. Permission to appeal is refused.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr D Barclay Counsel for TasWater
Mr D White Counsel for CEPU
Hearing details:
Melbourne
2015
13 August
1 [2015] FWC 4233
2 At [80]
3 At [83]
4 At [88]
5 At [94]
6 At [50] – [52]
7 At [97] – [98]
8 At [103]
9 At [104] – [105]
10 At [106]
11 At [111]
12 At [112]
13 At [120]
14 At [125]
15 At [123]
16 At [132]
17 At [136]
18 At [145]
19 At [146] – [147]
20 At [157] – [160]
21 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481
22 GlaxoSmithKline Australia Pty Ltd v Makin (2010) 197 IR 266.
23 House v The King (1936) 55 CLR 499.
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