Tony Carrick v Patrick Stevedores Holdings Pty Limited

[2012] FWA 4480

[2012] FWA 4480

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tony Carrick
v
Patrick Stevedores Holdings Pty Limited
(U2011/14033)

COMMISSIONER HARRISON SYDNEY, 28 JUNE 2012

Termination of employment - unfair dismissal - arbitration.

[1] This decision arises from an application by Mr Tony Carrick (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the termination of his employment by Patrick Stevedores Holdings Pty Ltd (Patrick).

[2] At the hearing on 19 and 20 April, the Applicant was represented by Mr D Quinn, solicitor, and Mr A Jacka of the Maritime Union of Australia. Patrick was represented by Ms A DeBoos and Ms K Peacock-Smith, solicitors.

[3] The Applicant gave evidence on his own behalf. The following witnesses gave evidence on behalf of Patrick:

• Ms Tamara Green - Regional HR Manager



• Mr Vernon Ferreira - Operations Manager



• Mr Richard Redman - Regional Business Manager

[4] The Applicant commenced employment with Patrick in January 2000, initially as a casual and subsequently as a permanent from 2004. He was terminated on 17 November 2011 for a safety breach whilst driving a forklift which collided with another at the Fishermans Island Brisbane terminal on 26 October 2011. In the letter of termination, Patrick also referred to his prior disciplinary record as forming part of its reasons for the termination.

[5] The most significant prior disciplinary issue concerns a safety breach on 26 February 2011. The breach was described as the Applicant positioning himself in a “pinch point zone” that led to serious injury to him and potentially others. A pinch point zone was defined consistently by witnesses as the space between two objects, one of which is stationary and one of which is moving or has the potential to move. 1 Following an investigation, Patrick extended a final warning issued to him in September 2010 and removed his Team Leader certification for 6 months.

[6] The injuries suffered by the Applicant led to him being absent from work for a lengthy period during which time he received psychological counselling and medication for anxiety and depression. When he returned to work in October 2011 he provided Patrick with a medical certificate that stated he “...fit for duties but unable to work under a suspended load.”

The Applicant’s Evidence

[7] The Applicant gave evidence relating to the safety incidents on 26 February and 26 October 2011, as well as safety procedures at Patrick and his record of employment there.

[8] In relation to the incident on 26 February, the Applicant’s evidence was that he was working as a Team Leader, responsible for two operators working alternate two-hour periods on a crane, and other members of the gang working in the hold as they unloaded non-containerised cargo from the vessel Cape Delgrado. At the time of the incident the Applicant was securing cargo lifted onto a flat base so that it could be lifted out of the hold by crane.

[9] At around 3:45 pm the crane, operated by Mr Gary Wells, was moving stacks of steel plates onto the flat container base on the left hand side of the vessel’s hold, after which members of the gang would lash them down. When Mr Wells lowered a stack onto the flat, the Applicant and two others walked behind the flat to steady the stack and ensure that the flat would balance when lifted from the hold.

[10] The Applicant describes the safety incident as follows:

“The stack was down on the flat for about three or four seconds when I gave Gary the signal to cease operations, which is two arms crossed at the forearm. I had my radio in my right hand as I did this. I then placed my left hand and left leg in between the stack just lowered to my right, and the stack already lowered to my left. I then grabbed my side of the chains with my left hand from under the stack just lowered, and pulled the chain back towards me. I adopted this stance whenever a stack was placed next to another stack and I would have to put my hand in between the gap to retrieve the chain from under the stack just lowered.

I was pulling my left arm and left leg out of the gap between the two stacks when the pack to my right just lowered started to be lifted on the other side where Joseph and Dave where [sic] standing. I thought this was strange so I stood up to see what was going on, when all of a sudden three packs in the stack tipped on an angle and the top pack weighing about 1.2 tonnes started sliding off the stack towards the stack that was to my left side. I was dragged back into the gap between the two stacks by the chain I was holding and pinned across the right pelvic area by the sliding backs, pending me over the corner of the pack to the left side of me. I yelled out “stop, stop, stop”. I twisted to my right trying to get out of the point between the two stacks, whilst still holding the chain which was dragging me back towards the stack which Gary was lifting. I dropped my radio and waited for the stand down crane driver Adam to tell Gary how to lower the hoist of the crane. I was frightened because I knew that when it stopped, before the crane could be lowered, the hoist would rise six to eight inches and then come back down due to a default in the crane. When the stack was lowered, Id did not know what would happen - whether I was going to get crushed, or if the other plates weighing approximately three tonne would keep coming and fall onto me.” 2

[11] The result was that the Applicant was pinned by the top stack, causing severe injury.

[12] The Applicant’s evidence was that he had not given the crane operator, Mr Wells, instructions to lift the chain, and does not know why he did so. The Applicant is also aware that Mr Wells had been involved in a number of incidents at the Patrick premises.

[13] In cross-examination, the Applicant rejected the proposition that his witness statement differed from a statement that he gave shortly after the incident. He maintained that he had signalled the crane driver to cease operations. He also rejected an alternate method put to him by which the Respondent’s representatives suggested that he could have completed the task without placing his body between the two stacks. 3

[14] In Patrick’s investigation of the incident, the Applicant received a letter dated 4 April 2011 alleging that he never conducted a Job Safety Analysis (JSA) form as required of team leaders. The Applicant’s evidence is that “JSA’s were introduced the day before the accident when Mr Michael Kato, Supervisor, advised me that they were required. I completed one with his assistance for that day and I completed one on the day of the accident”. 4 In further evidence in chief, the Applicant stated that he had not been trained in filling out a JSA prior to 25 February 2011. He stated that the only similar procedure that he had followed was called a VERA, a “very rare procedure” that he had completed only six times in five and a half years as a foreman.5

[15] Following an investigation in which the Applicant initially declined to take part on 13 April 2011, the Applicant received a final warning from Patricks. The letter states that “your actions of positioning yourself into a pinch point zone constitute a serious safety breach”. 6

[16] The Applicant returned to work on 26 September 2011, on suitable duties. There was some interruption of his work between 26 September and 26 October because the Applicant aggravated his back injury by driving a forklift over a rail line on 3 October.

[17] In relation to the incident on 26 October, the Applicant’s evidence was that he was rostered to drive a forklift on the evening shift. He worked unloading boxes from a vessel without incident until approximately 8:15 pm, when his back pain began increasing because of the uneven surface of the block of the wharf on which he was working.

[18] At around 9:50 pm, the Applicant approached a forklift being driven by Mr Timothy Haim, in order to ask Mr Haim to unload the last few boxes because the Applicant’s back hurt. It was the Applicant’s evidence that it was raining lightly at this time. The Applicant lined up the forklifts so that his spreader would be clear of the top-lift spreader on the forklift driven by Mr Haim, and pulled alongside the other forklift. The Applicant’s evidence about the collision itself was that:

“As I came parallel alongside Tim’s 004 forklift, I heard a loud bang noise and saw glass shatter. I could not see what had happened because the light from a ‘grandstand’ light which lights up the wharf was in my eyes. I drove my forklift two inches forward and I observed my forklift’s spreader come off Tim’s 004 forklift door. I then realised that my spreader had clipped Tim’s forklift door which was open.” 7

[19] In cross-examination, the Applicant:

• Stated that he had maintained eye contact with Mr Haim;



• Said that the grandstand lights blinded him only after the initial collision;



• Accepted that the grandstand lights are normally on at night, and that he had driven a forklift under them before;



• Accepted that he was used to working in rainy conditions; but



• Stated that he was not used to driving a forklift “all the time like a normal forklift operator”;



• Stated that forklift drivers usually communicate by radio; but



• Stated that he had wished to speak to Mr Haim in person because he was “paranoid of what other people were listening in, because I had to do an incident report on my back...”;



• Stated that to speak to a driver in another forklift in person, the forklifts would have to be only a metre apart;



• Could not say what was a safe distance between large mobile equipment such as forklifts;



• Denied knowledge of Patrick’s “Cardinal Rules”; but



• Accepted that he knew that mobile equipment must be operated at a safe distance;



• Accepted that Mr Haim’s forklift was stationary;



• Accepted that a moving forklift hitting a stationary forklift was a serious incident; and



• Accepted that he was at fault in the incident and that Mr Haim was not. 8

[20] The Applicant also gave evidence in which he explained his version of occasions on which he had been disciplined, namely

• For using his Maritime Security Identification Card (MSIC) to admit another employee to the Patrick site on 14 April 2009;



• For failing to attend work on 23 December 2009; and



• For sleeping during a shift sometime during late August 2010.

The Respondent’s Evidence

[21] Ms Tamara Green is responsible for all HR related matters at Patrick’s sites in Gladstone, Brisbane and Darwin. She is generally involved in all disciplinary matters. Ms Green was involved in the investigations following both the 26 February and 26 October incidents.

[22] Ms Green’s evidence is that the ultimate conclusion of the investigation of the 26 February incident was as follows:

“the Applicant had placed himself into a ‘pinch point between 2 stacks of steel plates, and that this had resulted in an injury to himself after one of the packs tilted on being raised by the crane and pinned him against the other stack of plates.”

[23] Ms Green states that when interviewed, the Applicant accepted that he had placed himself in a pinch point, but did not know a better way of carrying out the job. In cross-examination, she agreed with the proposition that:

“Nowhere amongst your material, nowhere in amongst the applicant’s material, nowhere in amongst your investigations, nowhere in front of the commissioner has anybody come up with any alternative method of him removing that cargo from 26 February.” 9

[24] In cross-examination, Ms Green maintained that team leaders had been required to complete JSAs since before 25 February 2011, but was also unable to identify when, by whom or in what form the requirement for team leaders to complete JSAs was communicated. In re-examination, she stated that forms used to identify risks and identify control measures were not new procedures, whatever the name of the form.  10

[25] In further cross-examination, Ms Green maintained that a piece of cargo attached to a crane was an object that had the potential to move as per the definition of a pinch point zone. She agreed that she was not aware of any incident in which a crane driver took up a load before being instructed to. 11

[26] Following the 26 October incident, Ms Green’s evidence is she and Mr Ferreira interviewed the Applicant on 2 November. The Applicant had with him Mr Bill Wilkinson, whom Ms Green refers to as a solicitor, but who was in fact a private investigator. 12 The Applicant read a prepared statement and declined to answer further questions.

[27] Ms Green concluded that:

• The Applicant had admitted to driving his forklift into another forklift;



• The Applicant did not use his radio, although he had used it earlier in the shift;



• It was impossible to conclude whether it had been raining; and



• The Applicant breached Patrick’s “cardinal rule” in relation to the safe use of mobile equipment.

“After considering all of the above in the light of the Applicant’s overall performance record, [her] view was that termination of the Applicant’s employment was appropriate in the circumstances”, which she recommended to Ms Elizabeth Ferrier, the National HR Manager, and Mr Richard Redman. 13

[28] In cross-examination, Ms Green conceded that speed was a relevant factor in assessing the risk in a vehicle accident, and could not recall the Applicant being asked about the speed at which he was driving the forklift at the time of the collision. She maintained that driving a forklift into another forklift was a serious safety breach. 14

[29] Mr Vernon Ferreira is responsible for overseeing, designing and controlling Patrick’s operations in Brisbane. He was also involved in the investigations following the two incidents. His evidence was that the Applicant had received training in relation to pinch points and the correct procedure for completion of JSA’s. Given the Applicant’s length of service and his position as a Team Leader it was Mr Ferreira’s opinion that he should have been fully aware of Patrick’s safe work policies and practices.

[30] In cross examination Mr Ferreira:

• Stated a crane driver has no authority to lift a load without instruction;



• Agreed Mr Wells had been involved in two previous incidents, one of which was not his fault;



• Stated that productivity comes second to safety and that “...policies will change continuously in order to make the workplace safe.” 15

[31] Mr Richard Redman ultimately made the decision to terminate the Applicant’s employment.

[32] Following each safety incident, Mr Redman reviewed the Incident Report (“ICAM”) forms and spoke to people who had been part of the investigation.

[33] Mr Redman describes the decision-making process that resulted in the termination of the Applicant’s employment as follows:

“I considered the Applicant’s written response as set out in his email of 14 November 2011, along with my previous findings in relation to the allegations. As requested by the Applicant, I also considered the positive file notes on his file, along with his disciplinary record.

In relation to the Applicant’s performance record, I noted there were positive reports, but overall my view was that the negative reports far outweighed the positives. The Applicant had been disciplined in relation to sleeping on the job, leaving site post-incident and failing to report on a number of occasions.

There was also the previous final warning from February of that year, which I noted also related to a safety incident where the Applicant had put himself and other employees at risk.

I considered the Applicant’s overall performance. He had progressed to team leader some years ago and so had obviously performed quite well at that time. However, I considered what was most relevant was his recent history.

Within a period of approximately 8 months, the majority of which the Applicant had been absent from work, he was involved in 2 serious safety reaches resulting in LTIs [lost time injuries]. He was already on a final warning for the previous incident.

In relation to the most recent safety incident involving the forklift, I considered the seriousness of the incident, the injury sustained by the other employee and the potential injuries which may have resulted, as well as the damaged which had occurred to the forklift.

I considered the Applicant had breached a cardinal rule in relation to mobile equipment, by failing to approach the other forklift at a safe distance and failing to make eye contact with the other operator.

My overriding concern was Patrick’s duty to care to all of its employees and its obligations to protect their health and safety. I was concerned that the Applicant had been involved in 2 serious safety breaches resulting in LTIs within a short time frame and I thought there was a real possibility that he could be involved in a further breach if I returned him to work.

I received an email on 15 November 2011 from Paul Sheehan, MUA delegate... I considered the matters set out in Mr Sheehan’s email, including those set out in a document which had previously been provided and responded to by Ms Green.

However, my consideration of these matters did not change my view regarding the Applicant’s overall performance record as set out above, or affect my overriding concern in relation to protection of employee health and safety.

I then had a discussion with the Regional and National HR Managers and the Divisional General Manager in relation to the appropriate disciplinary action for the Applicant.

As a result of that discussion I concluded that termination of the Applicant’s employment was appropriate.

I sent a letter to the Applicant dated 17 November 2011, setting out my decision that his employment would be terminated, effective from that date... On 18 November 2011 I received an email from the Applicant... [t]hat email detailed the Applicant’s response and explanation of the incident. I did not consider that the email contained any information that had not been provided previously by the Applicant or that was capable of having any impact on the decision to terminate his employment.” 16

[34] In cross-examination, Mr Redman:

• Stated that he made his decision on the understanding that the Applicant had been unable to see where he was driving at the time of the collision on 26 October, because he had been blinded by the grandstand lights;



• Stated that he believed that the Applicant did not see the other forklift, unless he drove into it wilfully.




“That was the critical issue for you?---Yes, the critical issue was just driving a 40-tonne piece of machinery, couldn’t see and collided with another machine, and he didn’t follow our rules that we have around forklifts---

Which rules?------which are part of our cardinal rules for our sites around Australia regarding mobile equipment.

Such as making eye contact?---Yes, approaching from the side, having visibility, keeping distance and eye contact. So obviously none of those things occurred, or else he wouldn’t have run into the forklift.” 17

Applicant’s Submissions

[35] The Applicant submitted that his prior disciplinary record concerned trivial matters and previous warnings on his file were not justified. He submitted that FWA should give little if any weight to the personnel record because it is incomplete, largely concerned with trivial issues, and does not accurately reflect the Applicant’s work record.

[36] In particular, the Applicant asserted that the final warning issued after the February 2011 accident was not justified. He submitted that he had not been made aware of the requirement to fill out or trained in filling out JSA forms, and that the incident was the fault of the crane operator and not a result of the Applicant’s actions. On these bases, the Applicant asserted that, to the extent that the Respondent relied on his disciplinary record and the fact that the he was on a final warning, there was no valid reason for termination.

[37] On the October 2011 incident, the Applicant submitted that he did not drive the forklift negligently, dangerously or with reckless disregard for other employees. The Applicant submits that on that occasion there was no proper basis for the Respondent’s finding that there was a “safety breach”, and that there was no basis for a warning, let alone termination.

[38] In summary, the Applicant submitted that his termination was disproportionate to the gravity of his conduct because:

• his conduct was inadvertent;



• it reflected a simple error not a disregard for safety;



• his record does not identify any history of disregard for issues of safety and instead his record is peppered with commendations for his conduct;



• in relation to the February incident he followed the appropriate assessments including with his shift supervisor and communication with his gang and conduct by a crane driver that was unprecedented; and



• the assessment of the accident in October and the decision to terminate were both based upon evidence that did not exist and inferences that could not be drawn on the evidence that was available. 18

[39] The Applicant further submits that the termination of his employment being put into effect despite his inability to attend the “show cause” meeting of 15 November 2011 denied him procedural fairness.

[40] Finally, the Applicant submitted that the Respondent did not give sufficient weight to either his physical and psychiatric injuries resulting from the 26 February incident, or his 10 years of service and multiple instances of positive recognition of his service.

[41] The Applicant seeks reinstatement. It was said a proper working relationship could be re-established. In the alternative it was submitted the Applicant was entitled to the maximum compensation available under s.392(6).

Respondent’s Submissions

[42] The Respondent submitted that the Applicant must have been aware of and familiar with its safety procedures and rules as a result of his long service at the Respondent’s Brisbane site, his team leader training, and his having received counselling and formal warnings for previous breaches of safety rules. These rules and procedures include:

• the use of forms and procedures including JSAs and VERAs to identify and manage risk;



• the Site Rules



• the Cardinal Rules

[43] The Respondent characterised the 26 October forklift collision as a serious safety incident. It submitted that the Applicant breached the Cardinal Rule relating to mobile equipment. The Respondent’s submission is that the investigation into the collision showed a breach of the Cardinal Rules. The Respondent is not required to make further findings on negligent or dangerous driving as submitted by the Applicant.

[44] Having regard to the Applicant’s personnel record, the Respondent submitted that contrary to the Applicant’s characterisation of the events that led to prior warnings, such as sleeping on the job, failing to attend work, breaching safety rules and entering a “pinch point” on 26 February were not trivial matters. The Applicant’s record was therefore properly to be taken into account as a basis for termination.

[45] The Respondent rejects the submission that the Applicant was denied procedural fairness. They note that he had allegations put to him at a meeting on 2 November and read a statement and answered questions in response. The Applicant did not request that the “show cause” meeting be rescheduled, and in the alternative he submitted a written response.

[46] The Respondent submitted that FWA should take into account the primacy of safety in the Respondent’s sites. It submitted that having the Applicant on site is an unacceptable risk to the Respondent’s other employees.

[47] The Respondent contended that to find in favour of the Applicant:

“the Tribunal must conclude that:

(a) firstly that the 26 October 2011 incident was not a serious safety breach which would at the very least entitle the Respondent to issue the Applicant a final warning (given that the Applicant had 2 final warnings at that time); and

(b) that the Applicant’s previous final warnings were likewise unjustified or for trivial events.” 19

The Respondent submits that these conclusions are not open on the evidence.

Conclusions

[48] In this matter there is no issue that the Applicant is a person protected from unfair dismissal. The question for determination is whether the termination of the Applicant’s employment was unfair within the meaning of s.385 of the Act.

[49] Section 385 of the Act provides that a person has been unfairly dismissed if FWA is satisfied that:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

Paragraphs (c) and (d) are not relevant in this matter.

[50] In determining whether the termination was harsh, unjust or unreasonable I turn to s.387 of the Act, which sets out the factors to be taken into account. Those factors are:

“(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); and

(b) whether the person was notified of that reason; and

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

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

(e) if the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal; and

(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; and

(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; and

(h) any other matters that FWA considers relevant.”

[51] In King v Freshmore (Vic) Pty Ltd, 20 the Full Bench observed:

“When a reason for termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[52] In Qantas Airways Ltd v Cornwall, 21 the Full Court of the Federal Court said:

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

[53] I have carefully considered the evidence concerning the 26 February 2011 incident and concluded that the Applicant was directly involved in a serious breach of safety. Despite efforts to shift blame to the crane driver, it does not alter the fact that the Applicant placed himself in a dangerous position between two stacks of steel plates. In such circumstances it was reasonably open to the Respondent to extend a final warning issued earlier in September 2010.

[54] The 26 October 2011 accident was characterised by the Applicant as being an error of judgement and “potentially serious”. In my opinion the accident was the result of negligence and a breach of procedures. The Respondent was correct in applying its performance management policies to evaluate the seriousness of the incident.

[55] Having regard to the evidence before me and the findings I have made in respect of the conduct of the Applicant, I find that the termination of the Applicant was for a valid reason.

[56] There is no argument that the Applicant was notified of the reason for his termination on 17 November 2011.

[57] The Applicant was provided an opportunity to respond to allegations against him on 2 November 2011. Furthermore, he was provided another opportunity to respond to an investigation into the forklift accident and other matters at a meeting on 15 November 2011. He did not attend the meeting but did provide a written response on 14 November 2011. At all relevant times he was accompanied by a support person.

[58] The Applicant was previously warned about his unsatisfactory performance.

[59] Section 387 subsections (f) and (g) are not relevant.

[60] The meaning of the term “harsh, unjust and unreasonable” was considered by McHugh and Gummow JJ in Byrne and Frew v Australian Airlines Pty Ltd 22.

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 23

[61] The evidence reveals that the Respondent’s workplace is a hazardous environment and a considerable emphasis is placed on well developed occupational health and safety policies and practices.

[62] The Applicant committed serious breaches of safety which gave rise to a risk not only for his own welfare but also that of his work mates.

[63] The Applicant’s overall disciplinary record was not good and he was the subject of a final warning at the time of termination. In all of the circumstances I find the termination of the Applicant was not harsh, unjust or unreasonable.

[64] The application for an unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

D Quinn, Carne Reidy Herd Lawyers, with A Jacka, MUA, for the Applicant.

A DeBoos and K Peacock-Smith, Middletons, for the Respondent

Hearing details:

2012.
Brisbane:
April 19, 20.

Final written submissions:

Applicant, 4 May 2012
Respondent, 4 May 2012

 1   Transcript PN752, PN1171.

 2   Exhibit Q1, PN45-46.

 3   Transcript PN319-346.

 4   Exhibit Q1, PN52.

 5   Transcript PN100-104.

 6   Exhibit Q1, Annexure TMC8.

 7   Exhibit Q1, PN84.

 8   Transcript, PN379-434.

 9   Transcript PN738.

 10   Transcript PN933-952, PN1124-1129.

 11   Transcript PN744-745, PN783-791.

 12   Transcript PN435-436.

 13   Exhibit D1, PN58-60.

 14   Transcript PN612-613, PN1020, PN1027.

 15   Transcript PN1304-1305.

 16   Exhibit D3, PN38-52.

 17   Transcript PN1580-1582.

 18   Applicant’s Final Written Submissions, PN58.

 19   Respondent’s Final Written Submissions, PN3.4.

 20   [2000] AIRC 1019; S4213 at [23]-[24] per Ross VP, Williams SDP and Hingley C.

 21 (1998) 84 FCR 483 at 492; (1998) 83 IR 102 at 110; [1998] FCA 865 per Burchett, Cooper and Finn JJ.

 22 (1995) 185 CLR 410.

 23   Ibid at 465.

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