FWAFB 8021
FAIR WORK AUSTRALIA
Fair Work Act 2009
s.604—Appeal of decision
JUSTICE ROSS, PRESIDENT
MELBOURNE, 17 SEPTEMBER 2012
Appeal against decision of Commissioner Simpson  FWA 5224 - s.604 Fair Work Act - unfair dismissal proceeding dismissed - ‘frivolous, vexatious or without reasonable cause’ - permission to appeal refused - appeals not an avenue to redress deficiencies in the manner in which the case was run at first instance.
 On 2 July 2012 Commissioner Simpson dismissed Bridget Curtis’ unfair dismissal application on the basis that it was ‘frivolous, vexatious or without reasonable prospects of success’, within the meaning of s.587 of the Fair Work Act 2009 (the Act). 1 The Commissioner’s decision was based on his finding that on 30 January 2012 the parties had reached a binding settlement agreement in respect of that application. Ms Curtis (the Appellant) has appealed the Commissioner’s decision. The relevant background facts may be shortly stated.
 In June 2011, the Appellant was diagnosed with epilepsy and was told that she could not drive a vehicle or operate certain machinery at work until her condition improved or she received a medical clearance. 2 The Appellant was dismissed from her employment as a horticulturalist with the Darwin City Council (the Respondent) at a meeting at the Council on 16 December 2011. The reason given for the termination of the Appellant’s employment was that she was unable to fulfil the inherent requirements of her job and no suitable alternative employment was available. Mr Brian Lewis, an industrial officer with United Voice (the Union) also attended the meeting. After the meeting with the Council, Mr Lewis went with the Appellant to the Union office, to meet Erina Early.
 Ms Early is a senior industrial officer with the Union. She has been employed by the Union for about 6 years and dealt with unfair dismissal claims on a regular basis. The Appellant has been a member of the Union for about 10 years.
 During the meeting at the Union, the Appellant was extremely distressed, distraught and crying. 3 Ms Early said that the Appellant told her that she wanted to lodge an unfair dismissal application and that she was seeking reinstatement.4 Ms Early advised the Appellant that the Union would lodge an unfair dismissal application on her behalf.5
 On 20 December 2011 the Union lodged an unfair dismissal application on the Appellant’s behalf. 6
 On 10 January 2012 the Union received a notice of listing from Fair Work Australia informing them that a conciliation conference in respect of the application would take place at 9.45am on 30 January 2012. 7 In her witness statement the Appellant said that she did not recall receiving a copy of the notice of listing.8 We return to that issue later.
 It is common ground that Ms Early and the Appellant had three telephone conversations on 30 January 2012.
 Ms Early first telephoned the Appellant some time between 8.30am and 9.00am. It was a short conversation. Ms Early told the Appellant that a conciliation conference was to take place that day. The Appellant told Ms Early that she was working and asked her to ring her back. Ms Early said that she would call back in about 15 minutes, and did so. 9 The content of the second conversation between Ms Early and the Appellant was disputed before the Commissioner.
 Immediately after her second telephone conversation with the Appellant, Ms Early contacted Mr Frank Crawley (the Council’s General manager, Corporate Services) by telephone and put proposed settlement terms to him on the Appellant’s behalf. Mr Crawley advised that the Council would accept the proposed settlement and requested that the Union email him and Mr Scott Roffey with the outline of the proposed settlement in writing. Ms Early then sent an email to Messrs Crawley and Roffey in the following terms:
“ ..Dear Frank and Scott
As per our phone conversation this morning, Ms Bridget Curtis is happy to accept the below to resolve her application for unfair dismissal;
Right to resign;
Statement of service (detailed dates of employment and job title) and;
Deed of release encompassing the above and wording that either party cannot make disparaging remarks.
Senior Industrial Officer
United Voice / Northern Territory..”
 Mr Crawley replied by email stating: ‘The Council will agree to the request.’
 Ms Early then advised the Unfair Dismissals Team of FWA that the matter had settled and the conciliation conference was to be vacated.
 It is common ground that there was a subsequent, third, telephone conversation between Ms Early and the Appellant on 30 January 2012. We deal later with the content of that telephone conversation.
 A draft deed was supplied to Ms Early by email on Tuesday 31 January 2012 to which Ms Early replied, also on Tuesday 31 January 2012 “[T]he draft deed of settlement is fine”. 10 According to Ms Early she then attempted to contact the Appellant without success. As she was going to Sydney she asked Mr Lewis of the Union to contact the Appellant which he succeeded in doing on 9 February 2012 at which time the Appellant requested that the Union not proceed any further with the Deed as she was seeking legal advice.11
 It appears that the Respondent treated the matter as being settled despite the fact that the deed was never executed by the Appellant or the Union.
 On 16 February 2012 correspondence was received by the Tribunal from Mr Antony Downs of NT Law enclosing a Form F53 - Notice of Representative Commencing to Act - on behalf of the Appellant and requesting that the matter be set down for a further conciliation conference.
 On 30 March 2012 the Respondent filed a Form F4 - Objection to Application for Unfair Dismissal Remedy and further advised the Tribunal that the Respondent would not participate in any further conciliation of the matter until the objection to the application was heard and determined.
 The Respondent’s jurisdictional objection was heard by Commissioner Simpson on 18 June 2012.
 The central issue for determination in the proceedings before the Commissioner was whether there was an agreement to settle the unfair dismissal proceedings. That issue gave rise to two subsidiary questions. First, whether had the Appellant provided any instructions, or any competent instructions, to Ms Early to settle the proceedings on the basis ultimately agreed between Ms Early and the Respondent’s representative. This question turned on the substance of the conversations that took place between the Appellant and Ms Early on 30 January 2012. The second question was whether the settlement agreement was conditional upon the parties executing a deed in the terms agreed.
 The Commissioner upheld the Respondent’s objection and dismissed the Appellant’s application. The Commissioner’s conclusion is set out below:
“I have considered all of the evidence including each of the reasons set out in the Respondents written submissions to argue no binding agreement was reached however I conclude a binding settlement agreement was reached between the parties in this matter and that the Applicant has sought to renege on that agreement. I am satisfied that Ms Early was the Applicants authorised representative at the time the settlement was made and had authority to negotiate the settlement on her behalf.
Based on my findings set out above it follows that I accept there was an offer and acceptance. I also am satisfied the union did not act beyond its authority and did not mistake Ms Curtis’s instructions and that the acceptance of the offer by Mr Crawley for the Respondent did not mistake the terms of settlement despite Mr Roffey subsequently drafting a deed which went beyond those terms. I am satisfied there was a meeting of the minds and also that the agreement was not void or voidable. I do not accept the consideration as being illusory or totally inadequate as it is common for unfair dismissal matters to settle on similar terms and the terms in this case have a tangible value. As previously discussed I do not accept Ms Curtis was impaired to the extent that she did not have capacity to give full, proper and reasoned instructions. I am satisfied Ms Early as Senior Industrial Officer of United Voice gave advice to Ms Curtis and she made an informed decision based on that advice. I am also satisfied the agreement did not lack certainty and did not result in the Respondent being unjustly enriched. ...
Based on the authority in Australian Postal Corporation v Gorman Fair Work Australia is empowered to dismiss an application such as this one as the settlement agreement extinguishes the pre-existing cause of action and further pursuit of the matter would be frivolous or vexatious or without reasonable prospects of success. That is my finding here. If I were unable to dismiss the application on the basis of s.587(1)(b) or (c) I would do so relying on the broad discretion in s.587(1).”
2. The Appeal
 An appeal under s.604 of the Act is an appeal by way of rehearing and the Tribunal’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 12 There is no right to appeal, rather an appeal may only be made with the permission of the Tribunal. Section 604(2) deals with permission to appeal:
“(2) Without limiting when FWA may grant permission, FWA must grant permission if FWA is satisfied that it is in the public interest to do so.”
 However, different, more stringent, requirements are prescribed by s.400 of the Act in relation to appeals concerning applications alleging unfair dismissal. In respect of such appeals, s.400 of the Act provides:
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by FWA in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
 Section 400 manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally (compare s 604(2) and s 400). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Gowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’. 13
 Before turning to the question of permission to appeal, we propose to deal with the Appellant’s submission that the Commissioner made a number of errors of law and significant errors of fact. In the course of the appeal hearing it was agreed that the Appellant’s submissions could be reduced to two lines of argument:
1. The settlement ‘agreement’ entered into between Ms Early and the Council was of no effect, because:
(i) there were no proper instructions given by the Appellant to Ms Early; or
(ii) Ms Early exceeded the Appellant’s instructions; and/or
(iii) there was no consideration.
2. In the alternative, if there was an agreement arising from the exchange between Ms Early and the Council then such an agreement was dependent on the execution of the deed. As the deed was not executed there was no agreement.
 The Appellant also submits that the Commissioner made four ‘significant errors of fact’:
(i) At paragraphs - of his decision the Commissioner erred in deciding that the Appellant’s emails supported Ms Early’s version of the third telephone conversation on 30 January 2012.
(ii) At paragraph  of his decision the Commissioner erred in accepting or preferring Ms Early’s evidence in circumstances where any purported agreement by the Appellant was equivocal; there was no benefit to the Appellant to agree; and where the conduct of the Appellant indicated that she did not agree to the terms of the deed.
(iii) In failing to consider the parties’ rights under the Deed where there is a subsequent inclusion of a term providing for, and allowing, the parties to obtain independent legal advice.
(iv) In failing to consider the medical evidence relating to the Appellant’s capacity to make an informed decision and provide proper instructions.
 We doubt that matters (iii) and (iv) can be properly characterised as errors of fact. If the Commissioner erred in the manner suggested the error may amount to a failure to have regard to a relevant consideration. In other words it would be a House v King error, not an error of fact.
 It is convenient to deal first with the alleged errors of fact. In essence, the Appellant submits that no instructions were provided to Ms Early to settle the claim on the basis upon which it was purportedly settled. This submission is directed at the Commissioner’s finding that he preferred the evidence of Ms Early to that of the Appellant in relation to the two disputed telephone conversations between them on 30 January 2012.
 In relation to the extent of the ‘instructions’ provided by the Appellant to Ms Early, the Appellant contends that the Commissioner erred in preferring Ms Early’s evidence to that of the Appellant, in relation to the content of the telephone conversations between them on 30 January 2012.
 Ms Early’s evidence as to her recollection of the second telephone conversation is set out in her first witness statement:
“26. I cannot recall if Ms Curtis asked me to ring her back but I requested that Ms Curtis provide the remedies she was seeking from the conciliation.
27. Ms Curtis asked what type of remedies she could ask for.
28. I advised Ms Curtis that remedies she could potentially seek were the right to resign, a statement of service, deed of release stating that either party cannot make disparaging remarks about each other, a settlement amount or reinstatement of employment.
29. Ms Curtis asked what settlement amount she could ask for and I advised it depends on factors such as the nature of the dismissal, how long she had worked for Darwin City Council and also if she received any payment in lieu of notice from the Council.
30. Ms Curtis advised that money was not an outcome she was considering as she wanted her job back.
31. I advised that reinstatement may not be successful at the conciliation but could be an outcome if the matter was referred to a hearing with Fair Work Australia.
32. Ms Curtis advised that she wanted to resolve this matter and was happy to seek the right to resign, a statement of service and deed of release stating that either party cannot make disparaging remarks about each other.
33. I confirmed this outcome with Ms Curtis.
34. Ms Curtis confirmed that this was the outcome she was seeking at the conciliation.
35. This telephone conversation went for a period of approximately ten minutes.”
 The Appellant’s evidence was that she told Ms Early words to the effect “I wanted my job back and they can pay for what they have done to me”. 14 Ms Early agreed under cross examination that the Appellant had said she wanted her job back15, however according to Ms Early later in the conversation it was clear that was not what the Appellant ultimately sought as part of a settlement.16
 The version of the relevant part of the same conversation in the Appellant’s statement is as follows:
64. I asked Erina Early what she recommended.
65. Erina Early advised me that the right to resign as a good one, and a few other things I didn’t understand. I also said that I didn’t think that the conciliation was going ahead and that she should have called me. I requested an adjournment. Erina Early said that I couldn’t get one it was too late and the conciliation conference was still going ahead today.
66. I was on medication at the time and was not thinking clearly.
67. I did not agree to, or give instructions to, offer on my behalf the terms as set out in the statement of Erina Early at paragraphs 32 and 33 dated 23 May 2012.
68. Erina Early did not discuss with me any amount of money or compensation figures. I thought she was going to ask for my job back.
 It is common ground that there was a subsequent, third, telephone conversation between Ms Early and the Appellant. The content of that conversation is also disputed. Ms Early said she contacted the Appellant to congratulate her on the successful outcome of discussions with the Respondent and informed her that the conciliation would not proceed as the parties had agreed to settle. Ms Early claims the Appellant then thanked her for her assistance. 17
 The version of this subsequent conversation provided by Ms Early is at odds with the version provided by the Appellant. The Appellant’s evidence as to this conversation is set out in her witness statement:
69. Later I received a further telephone call from Erina Early informing me words to the effect that “congratulations, we have won.” She said that “you have the right to resign,” “there was no more money” and “that was the best we can do.”
70. I asked “won what”?
71. Erina Early stated “the right to resign”.
72. I was extremely shocked by this.
73. I replied by asking “is that the best you can do”?
74. Erina Early said words to the effect “yes it is the best compromise we can make at this time”.
75. I said words to the effect, “that is not good enough”, “its pathetic”, “its not enough mate”, and that I “have to seek some advice”. I then informed Erina Early that I would speak with her at a later date.
76. I deny thanking Erina Early for her assistance as set out in paragraph 40 of her statement dated 23 May 2012.
77. Erina Early wanted me to go back to the office to sign the paperwork. In informed her that I was not signing anything and that “it was not enough” and “not good enough”.
 In her second witness statement Ms Early rejects the Appellant’s recollection of the second conversation on 30 January and reiterates her earlier evidence: ‘I contacted Ms Curtis later on 30 January and congratulated her on the successful outcome as Darwin City Council were happy to agree to her terms of settlement of the matter. I further informed Ms Curtis that the conciliation would not proceed as the parties had agreed to settle the matter’. 18
 At paragraphs - of the decision subject to appeal, the Commissioner dealt with these evidentiary conflicts as follows:
“ The Respondent argues that it not plausible that Ms Curtis, an employee of approximately 10 years service, who it is common ground initially indicated had said she wanted her job back, would then change her mind to the extent that she would have agreed to settle the matter with no monetary compensation. Further the Respondent argues Ms Early failed to take the time to properly explain to Ms Curtis with some degree of clarity and thoroughness exactly what was going on. 19
 However there has been no evidence of any reason or motive for Ms Early as an experienced Industrial Officer to misrepresent the instructions of Ms Curtis. I find it difficult to accept that Ms Early would have done so. Ms Early presented her evidence in a direct, consistent and forthright manner, and it would appear has considerable experience in handling negotiations in unfair dismissal matters, as compared to Ms Curtis whose evidence was inconsistent and at times contradictory. I include in this the inconsistency of the evidence of Ms Curtis regarding the impact of her medical condition. I have also considered my preference set out above for the evidence of Ms Early over Ms Curtis concerning whether Ms Curtis knew of the conciliation conference on 30 January beforehand.
 For these reasons on balance I prefer the version of the two conversations on 30 January as given by Ms Early. I accept that Ms Curtis did give clear instructions as to the terms of a proposed settlement. Ms Early confirmed those with Ms Curtis and proceeded to offer those terms to Mr Crawley who subsequently accepted them.”
 It is apparent from paragraph  of his decision that the Commissioner preferred Ms Early’s evidence to that of the Appellant, for two reasons:
(i) Ms Early had considerable experience in handling negotiations in unfair dismissal matters and had presented her evidence in ‘a direct consistent and forthright manner’, whereas the Appellant’s evidence was ‘inconsistent and at times contradictory’.
(ii) Contrary to the Appellant’s evidence the Commissioner concluded that the Appellant knew, prior to her conversation with Ms Early on 30 January 201, that the conciliation conference was to take place on 30 January 2012.
 As to reason (i), the Commissioner made specific reference to inconsistencies in the Appellant’s evidence regarding her medical condition. The Commissioner deals with those inconsistencies earlier in his decision, at paragraphs -:
“Ms Curtis gave evidence about the effect the medication she takes for epilepsy has on her. 20 Contrary to her witness statement, during oral evidence Ms Curtis said the medication doesn’t affect any of her abilities.21 She said at the time of termination she was suffering a lot of stress and was very emotional but this couldn’t be put down to the medication she was taking.22 She maintained she was 100% clear about the instructions she gave Ms Early, she remembered exactly the conversation, and was thinking clearly. At the same time she maintained the medication was having “a couple of side effects.”23
Ms Curtis gave evidence that she takes Epilim to manage her epilepsy. 24 Ms Curtis was referred to material attached to her statement which among other things described the possible side effects of taking anti-seizure medication.25 She agreed that this information did not include any detrimental effects on a person’s ability to respond and comprehend and think clearly.26 She agreed to the same proposition with regard to the side effects of Epilim.27 28
The state of mind of Ms Curtis on 30 January 2012 is important because it goes to her capacity to give instructions to Ms Early that day. Ms Curtis gave evidence that on the morning of the 30 January 2012 she was working for her father doing jobs trimming trees and helping out in her father’s business, 29 30 and that there was no problem with her mental state at that time. She also said that she suffered no impaired ability to respond comprehend and think clearly.31 32 This evidence as I have stated contradicts her witness statement. Her oral evidence leads me to the view that her earlier evidence in her statement regarding the impact of the medication on her decision making capacity on both 16 December 2011 and 30 January 2012 was either untrue or an exaggeration.
There is insufficient medical evidence for me to conclude that the medication she was taking impacted on her capacity to give instructions to Ms Early on the morning of 30 January 2012. My view in this regard is reinforced by the evidence Ms Curtis gave that she was working that day, she sent an email to FWA herself that day, and her own oral evidence that the medication was not affecting her that day.”
 The second reason given by the Commissioner for preferring Ms Early’s evidence to that of the Appellant, was the Commissioner’s rejection of the Appellant’s evidence regarding her knowledge of when the conciliation conference was to take place. The Appellant had denied having any notification at all of the conciliation conference being held on 30 January 2012. 33 The Commissioner deals with this issue at paragraphs - of his decision:
“Ms Curtis also said she did not recall receiving a copy of the notice of listing for the conciliation conference. 34 FWA records indicate a Notice of Listing for a conciliation conference was sent to United Voice, Ms Bridget Curtis, and Ms Kelly Hoffman of Darwin City Council on 10 January 2012. The address the Notice of Listing records for Ms Curtis is PO Box 217 Humpty Doo NT 0836. Ms Early refutes that Ms Curtis did not know about the conciliation conference. Ms Early said she received a phone call from an FWA employee on the morning of 30 January 2012 to confirm her participation in the conference. Ms Early said she told the FWA employee that she had not spoken to Ms Curtis and the FWA employee advised Ms Early that Ms Curtis had been in contact with FWA and confirmed her intended participation at the conciliation. Ms Early says she then obtained Ms Curtis’s phone number from the FWA employee and subsequently spoke to Ms Curtis between 8.30am and 9.00am that morning to seek instructions.35 36
The language Ms Curtis used in her statement was that she asked Ms Early if the conciliation was on that day. 39 She confirmed she asked the question first under cross examination.40 However when asked how she knew a conciliation was part of the process in an unfair dismissal claim she said because Ms Early told her in that same conversation.41 The evidence of Ms Curtis indicates she asked Ms Early if the conciliation was on that day at the commencement of the discussion. This raises the question of why she would do this if she didn’t know there was a conciliation scheduled as she claimed.
An inference that could be drawn from Ms Curtis’s language is that she knew a conciliation conference was going to be held at some time, and added to this is some inconsistency in her evidence on receiving a notice of listing for the conciliation.
Further on this point it was also Ms Curtis’s evidence that she sent an email to FWA on 30 January 2012 advising FWA of her new mobile number as she had changed it on the weekend. 42 Her actions in doing this could provide some support for an inference the Respondent seeks to draw that she was doing this because she knew about the conciliation conference. This fits Ms Early’s evidence about an FWA employee advising her that Ms Curtis had already confirmed she would be participating in the conference,43 weighs against Ms Curtis’s claim that she only knew about the conciliation conference because Ms Early told her on the morning of 30 January.44 45
Ms Early’s evidence was she was given Ms Curtis’s new mobile number by an FWA employee, and that is how she contacted Ms Curtis despite Ms Curtis having a new phone number. 46 On the basis of the evidence I am more inclined to accept the proposition Ms Curtis did know about the conciliation conference before she spoke to Ms Early on the morning of 30 January 2012.”
 On appeal no challenge was made to the Commissioner’s rejection of the Appellant’s evidence regarding her knowledge of when the conciliation conference was to take place.
 Two specific points are advanced by the Appellant in relation to the Commissioner’s findings on these matters:
(i) The Commissioner should have rejected Ms Early’s evidence in favour of the Appellant’s evidence and he erred in concluding that Ms Early presented her evidence in ‘a direct, consistent and forthright manner’ and in his observation that the Appellant’s evidence was ‘inconsistent and at times contradictory’.
(ii) The Commissioner erred in relying on the 7 February emails as a basis for preferring Ms Early’s evidence to that of the Appellant.
 The difficulty with the first point is that it was never put in these terms on behalf of the Appellant in the proceedings before the Commissioner. At the conclusion of the evidence both parties made oral submissions. The Respondent went first and squarely put the proposition that the Commissioner should prefer the evidence of Ms Early to that of the Appellant:
“Commissioner, the evidence provided by Mr Crawley and Ms Early today was given in a clear, consistent and logical manner. The evidence given by both Mr Crawley and Ms Early today supported the facts outlined in their witness statements, and the respondent submits that adds further weight and indicates that the parties reached an agreement to settle the matter and acted in accordance with the agreement at all times ... much of what you have heard from Ms Curtis and her legal representatives are inconsistent and improbable excuses that are simply attempts to cloud the fact that Darwin City Council and Miss Early have reached a binding agreement to settle this matter.
Now I’ll reiterate for the Commission the main thrust of some of the excuses and why they are inconsistent and improbable”. 47
 The Respondent’s representative then took the Commissioner to a number of inconsistencies in the Appellant’s evidence, including the Appellant’s evidence as to her medical condition and the emails sent by the Appellant to Ms Early on 7 February 2012.
 The response of the Appellant’s representative to the above submission was muted. In relation to issues of credit the Appellant’s submission is encapsulated in the following passages:
“... this indeed wasn’t an arrangement with Miss Curtis, when Miss Curtis was fully across all the circumstances in relation to the Deed. But rather it was simply convenient for Ms Early and Mr Roffey [sic, Mr Crawley] to try to arrange to settle this matter, and that is why Ms Early has given statements along the lines that she was happy to resolve it. It’s clear on her own evidence she gave a cursory look at the deed terms itself, saying it only took six minutes, and agreeing to that when she had initially said she spends some three-quarters of an hour reviewing deeds ...
... looked at in the totality of the matter, there is no reason to doubt what Miss Curtis has to say. She may have been confused but she is consistent with wanting to have the matter resolved with her job back.” 48
 Viewed in context, it is apparent that the Appellant’s counsel referred to the time it took Ms Early to review the Deed not so much as a credit issue but rather to support his proposition that the matter was settled to suit the convenience of Ms Early and Mr Crawley, with scant regard to the Appellant’s rights.
 On appeal the Appellant seeks to impugn Ms Early’s evidence by reference to what are said to be further inconsistencies between her oral evidence and her witness statements. For our part we are not persuaded that such inconsistencies arise, but the real point is that they were never put by the Appellant’s counsel to Ms Early in cross-examination. We are not persuaded that the Commissioner erred in the manner contended by the Appellant.
 One of the other ‘significant errors of fact’ alleged by the Appellant is also directed at the Commissioner’s finding that he preferred Ms Early’s evidence to that of the Appellant. The Appellant submits that the Commissioner erred in deciding that the emails sent to Ms Early on 7 February 2012 (set out at paragraph 38 above) supported Ms Early’s version of the third telephone conversion on 30 January 2012. We now turn to this aspect of the Appellant’s case.
 In rejecting the Appellant’s evidence the Commissioner referred to the inconsistencies in that evidence and observed at paragraph  of his decision that ‘I include in this inconsistency ... the evidence of ms Curtis regarding the impact of her medical condition’. This statement suggests that the Commissioner had regard to other inconsistencies, in addition to those relating to the Appellant’s medical condition. It is apparent from paragraphs - of his decision that the Commissioner was here referring to two emails sent by the Appellant to Ms Early on Tuesday 7 February 2012:
“Ms Curtis claims in the second conversation on 30 January she said words to the effect, “that is not good enough”, “its pathetic”, “its not enough mate”, and that I “have to seek some advice” to Ms Early. If this claim were true then a reasonable question arises as to why Ms Curtis chose the words she did in sending two emails a week later attached to her statement 49 on Tuesday 7 February 2012 at 14:31 which said;
No not proceed, no not do anything further I am seeking legal advice
If any enquiries call me on ......’
A second email was sent by Ms Curtis at 15:28 on the same day as follows:
Matter No U2011/14723 please do not proceed any further, seeking legal advice.
Thank you if any enquiries you can call me on .....’
In my view the period of approximately a week between the conversations on 30 January 2012, and the language used in the emails of 7 February tends more to support Ms Early’s version that the matter was not raised on 30 January 2012.”
 The relevance of these emails to the Applicant’s credit was raised by the Respondent during the Appellant’s cross examination:
Now you've sworn that at a later stage on 30 January you received a phone call from Ms Early to inform you that the matter had been settled; that's correct?
---Yes, that's correct.
Was that subsequent phone call received quite soon after the initial telephone conversation?---Yes it was very soon.
Very soon? Now Miss Curtis, you've sworn that during that phone conversation you stated that you were not signing anything and that you would speak with Ms Early at a later date; is that correct?---Yes, that's correct, because I wasn't happy with the result.
So during that phone conversation you expressed that you weren't happy with the result and that you were going to seek some advice; is that correct?---Yes, that's correct.
Miss Curtis, I'd like to take you to the email marked as annexure BJC 4 of your witness statement?---Yes I have that - - -
Commissioner and Miss Curtis, that's an email from what appears to be Miss Curtis's Live email account to Ms Early's union email account.
THE COMMISSIONER: Have you got that in front of you, Miss Curtis?---Yes I have.
All right, Mr Roffey.
MR ROFFEY: Miss Curtis, is that email meant to say, "Do not proceed. Do not do anything further. I am seeking legal advice"?---Yes, that's correct.
Miss Curtis, why did you send this email when you swore in earlier paragraphs that you had already informed Ms Early that you were seeking some advice and that you were not signing anything?---Just to double-check over. Yes, because I already went to the lawyer about it.
Certainly, but you'd already informed Ms Early, or allegedly informed Ms Early, that you weren't signing anything and you were seeking some advice. So why the follow up email?
THE COMMISSIONER: Miss Curtis, can you answer the question?---I just thought it was the right thing to do. That's all.
MR ROFFEY: Certainly, Miss Curtis. Well, why didn't you put anything in the email relating to the previous telephone discussion that you had with Ms Early, where you've allegedly stated to her that you were seeking some advice and were not signing anything?---I didn't see it was necessary.
So you didn't think that the previous discussions were very relevant, as you were emailing Ms Early further information about those discussions?---No, not like with the outcome.
Sorry, I didn't catch that, Miss Curtis?---Not with the outcome.
So it was not important because of the outcome?
THE COMMISSIONER: That's what she said, Mr Roffey. It's Commissioner Simpson here.” 50
 The Appellant was also taken to this issue in re-examination:
Do you remember who you spoke to when you advised of the new number?---No. Sorry, I don't.
Now in relation to the email of 7 February, which is the email that was asked about?---Yes.
You have indicated to Ms Early that you were going to seek some legal advice, or you'd sought it, is that correct?---Yes, that's right.
So that email, that arose after you'd seen your lawyer; is that correct?---That's correct.
MR TAYLOR: I have simply asked - and it has been previously asked but I'm following it again - why was it necessary to send that email?---Seeking legal advice? It was a procedure.
But you had sought the advice so you were, what, doing this - - -?---No, my lawyer told me to do that.
Thank you, that's what I was after?---Yes.” 51
 The Commissioner concluded that the emails of 7 February 2012 tended to support Ms Early’s version of her third conversation with the Appellant on 30 January 2012.
 On appeal, the Appellant submits that the Commissioner’s finding on this point was an error. We agree. A clear, plausible explanation was provided by the Appellant. In her evidence she says that she sent the email on the advice of the lawyers she had engaged after 30 January 2012. There was no real challenge to the Appellant’s explanation. But while we think the Commissioner’s approach to this issue was erroneous, we are not persuaded that the error was significant. It is apparent from paragraphs  of his decision that the 7 February emails did not feature prominently in the Commissioner’s decision to prefer Ms Early’s evidence.
 The other two ‘significant errors of fact’ referred to by the Appellant (see paragraph 25 (iii) and (iv) above) may be shortly disposed of.
 It is submitted that the Commissioner erred in failing to consider the parties’ rights under the deed in circumstances where it was a term of the deed that the parties obtain independent legal advice. There is no substance to this point. The deed was never executed and accordingly it did not confer any rights on the Appellant. The Commissioner did not err in the manner suggested by the Appellant.
 The final alleged significant error of fact is the proposition that the Commissioner erred in failing to consider the ‘medical evidence’ relating to the Appellant’s capacity to make an informed decision and provide proper instructions. The difficulty with this submission is that no ‘medical evidence’ is put to the Commissioner, a point conceded by the Appellant’s counsel in these proceedings. There can be no error in failing to have regard to evidence that was never put.
 There were no significant errors of fact in the decision subject to appeal. We now turn to the alleged legal errors.
 The first ‘legal error’ is the Appellant’s contention that the settlement ‘agreement’ entered into between Ms Early and the Council was of no effect because there was no consideration. The Commissioner considered, and rejected, a similar proposition in the proceedings at first instance at paragraph  of his decision:
“I do not accept the consideration as being illusory or totally inadequate as it is common for unfair dismissal matters to settle on similar terms.”
 The Respondent submits that it is common knowledge that the right to resign is a valuable alternative to termination of employment for many reasons, including:
(a) it allows an otherwise terminated employee to inform potential new employers that they resigned, rather than that they were terminated;
(b) it has a significant impact on the likelihood of future employment; and
(c) it can result in favourable treatment in terms of bank loans.
 For our part we accept that the right to resign is a common feature of unfair dismissal settlements and that it is of value to the dismissed employee. We agree with the Commissioner’s decision on this point, for the reasons he provides.
 It follows that to this point we have concluded that there was a properly authorised settlement agreement in respect of the unfair dismissal proceedings. The Agreement was reached in the telephone conversation between Ms Early and Mr Crawley and is evidenced in the subsequent email exchange. We have also concluded that there was no significant errors of fact in the decision. We now turn to the Appellant’s final legal point. The Appellant submits that if there was an agreement arising from the exchange between Ms Early and the Council’s representative then that agreement was dependant on the execution of the deed. As the deed was not executed it is submitted that there is no agreement.
 The ‘agreement’ is set out in Ms Early’s email to Messrs Crawley and Roffey, of 30 January 2012:
“ ..Dear Frank and Scott
As per our phone conversation this morning, Ms Bridget Curtis is happy to accept the below to resolve her application for unfair dismissal;
Right to resign;
Statement of service (detailed dates of employment and job title) and;
Deed of release encompassing the above and wording that either party cannot make disparaging remarks.
Senior Industrial Officer
United Voice / Northern Territory..”
 The respondent replied, accepting the proposed terms. No deed of release was ever executed.
 At first instance the respondent submitted that the agreement fell into either class 2 or, in the alternative class 1 as identified in Masters v Cameron. 52 In that case the High Court held that where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be deal with by a formal contract, the case may belong to any of three classes. The three classes are:
1. The parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect.
2. It may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document.
3. The case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.
 In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution.
 Cases of the third class are fundamentally different. They are cases in which the terms of agreement are not intended to have, and therefore do not have any, any binding effect of their own. The expressions ‘subject to contract’, ‘subject to the preparation of a formal contract’ and others of similar import prima facie create an overriding condition so that what has been agreed upon must be regarded as the intended basis for a future contract and not as constituting a contract of itself.
 At first instance the Commissioner was satisfied that there was a binding agreement between the parties. The Commissioner deals with this issue at paragraphs - and  of his decision, in these terms:
“ The question of whether there was or was not a binding settlement agreement is a question of fact. That the draft Deed was never signed by the Applicant does not mean the Applicant cannot be bound by an agreement if made. The High Court in Masters v Cameron made this clear in determining where parties reach agreement on terms of a contractual nature and agree the negotiations will be dealt with by a formal contract, that the first two categories of agreement described in Masters v Cameron will be binding despite the absence of a signed Deed.
 It is my view that the subsequent draft settlement agreement prepared by Mr Roffey went further than the terms of the settlement reached on 30 January in that it included terms beyond those the Applicant had instructed Ms Early to offer to the Respondent. In that regard I specifically refer as an example to the breadth of the mutual release clause in the draft deed prepared by Mr Joffey. 53
 On the basis of the views expected by the Full Bench in A.Zoiti-Licastro v Australian Tax Office where an agreement is reached and subsequently a draft Deed prepared which may go beyond the terms of the agreement reached, it does not mean the agreement reached is not binding. In such circumstances the party objecting to the inclusion of such terms in the draft should indicate their rejection of those terms that were not part of the agreement actually made. ...
 It is my view the nature of the agreement was of a kind falling within the first category of agreement described in Masters v Cameron, 54 in that the parties had ‘reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect’.”
 In dismissing the Appellant’s argument, the Commissioner relied on the Full Bench decision in A Zoiti-Licastro v Australian Tax Office. 55 The relevant facts in that case are set out at paragraphs 4-6 of its decision:
“ The evidence concerning the settlement discussions is set out in the Senior Deputy President’s decision. It is not necessary to repeat it all. It is clear that following discussions on 3 March 2005 between Mr Dowling on behalf of the appellant and Mr Niall on behalf of the ATO agreement was reached on the following terms:
(i) the ATO would pay the appellant $17,000 ($12,000 on the presentation of invoices for legal costs and $5,000 as an eligible termination payment);
(ii) a statement of service would be provided to the appellant;
(iii) payment would occur within 14 days of signing terms of settlement;
(iv) the appellant would adjourn the proceedings pending receipt of payment.
 Despite this level of agreement, the appellant contended that there was no completed agreement. She relied on two related issues. The first was that when a formal agreement was drawn up by the ATO’s solicitor for signature it contained provisions by which each party released the other from further liability in relation to the termination of employment. Mr Dowling maintained that a mutual release provision had not been discussed, let alone agreed upon, in the settlement discussions on 3 March 2005. Mr Niall testified that although it was unlikely, it was possible that no express reference had been made to mutual releases in the discussions. Nevertheless he regarded mutual releases as standard in settlements of the kind being discussed.
 The second matter relied upon by the appellant was that any agreement which had been made was conditional on written terms being agreed. Although there was no evidence of this condition being discussed, it appears that it was accepted by both sides that there would be a signed agreement in due course.”
 The Senior Deputy President at first instance in Zoiti-Licastro had found that the appellant had agreed to release the ATO from any liability arising from her employment by the ATO, save for personal injuries. He pointed out that the ATO’s solicitors had sent the appellant’s solicitors a facsimile letter on 4 March 2005 confirming the terms of settlement. The terms set out included the following: “5. Mutual releases by both parties in the usual terms.”
 The Senior Deputy President also referred to a settlement agreement sent to the appellant’s solicitors by the ATO’s solicitors a few days after the settlement discussions on 7 March 2005. That agreement contained mutual release provisions. In particular it contained a clause by which the appellant released the ATO from any liability arising out of the appellant’s employment with the ATO, other than claims by the appellant under the Safety, Rehabilitation and Compensation Act 1988 and/or the relevant superannuation legislation. The Senior Deputy President regarded it as significant that no objection had been raised to the facsimile letter of 4 March or the settlement agreement forwarded on 7 March until the indication on 31 March 2005 that the appellant did not want to go ahead with the settlement. Furthermore, counsel for the Appellant gave evidence that he had told his client that if she settled the proceedings she would be surrendering all of her rights, save any injury rights. This apparently took place before the conclusion of the discussions on 3 March 2005.
 The Full Bench dismissed the appeal in respect of this issue, stating:
“We are satisfied that there was no relevant error in the Senior Deputy President’s reasoning on the release issue. It would be most unlikely, as the Senior Deputy President himself pointed out, that the ATO would pay money in settlement without receiving a release of some kind. Furthermore the release contained in the settlement agreement drafted by the ATO’s solicitors was in substance a release of the kind which Mr Dowling had advised the appellant she would have to accept in order to settle the case. It is not necessary that we comment further on the Senior Deputy President’s decision, because, regardless of the breadth of the release, nothing arising in connection with the question of the release casts doubt on the conclusion that there was a completed agreement.”
 The second issue relied upon by the appellant in Zoiti-Licastro was that the agreement reached between Counsel was “subject to written terms”. It was submitted that the agreement could not be said to be completed until a document had been signed by both parties. The Full Bench also rejected this challenge to the Senior Deputy President’s decision also, in these terms:
“It is clear that the settlement agreement drafted by the ATO’s solicitors contained mutual releases and those had not been specifically agreed in the discussions on 3 March. There were other terms included as well, such as a request for confidentiality. But the appellant’s focus on the settlement document seems to us to miss the point. The real question is what was agreed on 3 March between counsel. It is clear enough that a completed agreement was reached and that it was not conditional in any sense on an agreement being signed. Terms relating to mutual releases and confidentiality could hardly be said to be unusual. Even so, if they were objected to the proper course would be for the appellant to simply indicate that they were not part of the agreement. No such indication was given, at least not until after 31 March 2005.”
 In the present matter the Appellant submitted that the decision in Zoiti-Licastro was distinguishable and that the circumstances in this matter fall into the third category in Masters v Cameron.
 Contrary to the Appellant’s submission the ratio of the decision in Zoiti-Licastro is relevant to the present matter. In that matter, a draft deed was prepared which went beyond the terms of the parties’ agreement. The Full Bench held that such a circumstance did not mean that the agreement reached was not binding. The same issue arises in this case and we are not persuaded that we should depart from the decision in Zoiti-Licastro.
 Nor are we persuaded that the Commissioner erred in his characterisation of the agreement between the parties. The settlement agreement was not expressed to be ‘subject to contract’ or an expression of similar import such as to create an overriding condition to the affect that what was agreed was the intended basis of a future contract, rather than constituting a contract of itself.
 The agreement in this case fell within either the first or second category in Masters v Cameron, in either case there was a binding contract.
3. Permission to Appeal
 As we have noted, the test for permission to appeal in respect of matters of this type is a stringent one. The Tribunal must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. As their Honours Mason CJ, Brennan, Dawson and Gaudron JJ said in O’Sullivan v Farrer:
“... the expression ‘in the public interest’, when used in a statute, classically imports a discretionary judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view.” 56
 The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Tribunal identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or 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 counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters... 57
 There was no significant errors of fact in the decision subject to appeal and the Appellant has failed to persuade us that the decision was tainted by legal error or that the discretion miscarried.
 In addition to the matters we have already dealt with, the Appellant advances a particular ground said to support the proposition that the appeal raises public interest considerations which warrant the grant of permission to appeal. This matter is dealt with at paragraphs 4.1 - 4.2 of the Appellant’s written outline:
“The Appellant contends that it is in the public interest for FWA to grant permission for the appeal as the Deed contained a mutual release clause which, while in some circumstances not ‘unusual’ (per a. Zoiti-Licastro), may compromise a party’s rights and require independent legal advice.
A mutual release usually prevents a party pursuing further actions or claims. Accordingly, such an agreement needs to be explained to parties who may be legally unsophisticated, and who lack any knowledge of their legal rights. This is all the more important where such terms may not have been part of an original agreement, where a representative of an employee organisation representative is not legally trained to provide such advice, and where the consideration is void by reason of public policy. In such circumstances, the decision maker needs to apply a Briginshaw standard of satisfaction.”
 This submission is a variant of one of the other legal errors alleged by the Appellant (see paragraph 52 above). We accept that the draft deed went beyond the terms of settlement reached on 30 January 2012, in that it purported to settle all claims rather than being confined to the unfair dismissal proceedings. But as the Tribunal held in Zoiti-Licastro, the fact that a draft deed is prepared which goes beyond the terms of the agreement reached does not mean that the agreement is not binding. The same is true in the present case.
 It is also relevant to observe that the deed was never executed and accordingly it did not affect the Appellant’s rights. We are not persuaded that the argument advanced warrants the grant of permission to appeal.
 Permission to appeal is not a mere formality nor is it the function of the appeal process to provide an avenue for unsuccessful parties to seek to redress deficiencies in the manner in which their case was run in the proceedings at first instance. 58 The Tribunal and its predecessors have refused leave to appeal in circumstances where an appellant failed to lead evidence or to evidentially challenge the case put by the respondent in the proceedings at first instance.59 These observations are apposite in the present matter.
 The Appellant was represented by a legal practitioner in the proceedings below and was given a reasonable opportunity to present her case. The Appellant’s representative must bear responsibility for the fact that he failed to take the best advantage of the opportunity presented.
 The Commissioner, in our view, did everything that could be expected of him to ensure that the Appellant had a fair opportunity to present his case. He was not required to ensure that the Appellant took the best advantage of the opportunity presented. As Dean J observed in Sullivan v Department of Transport:
" ... it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.” 60[emphasis added]
 Thisis simply a case where the member at first instance preferred the evidence of one witness to another for reasons which are clearly stated and entirely explicable. The role of an Appeal Bench in relation to findings of fact made by a member at first instance is necessarily limited. On appeal, the Tribunal would be very reluctant to reverse a finding of fact made by a member at first instance and would only do so if satisfied that any advantage enjoyed by the member below as a result of hearing the relevant evidence was not sufficient to justify the findings made. 61
 Appellate bodies are prepared to overturn findings of fact in certain circumstances, including where the tribunal at first instance acted on evidence which was inconsistent with facts incontrovertibly established by the evidence. 62 But if a finding made by a member at first instance depends to any substantial degree on the credibility of a witness, that finding will usually stand, unless it can be shown that the member at first instance:
 None of these factors are present in this case.
 We are not persuaded that it is in the public interest that permission to appeal should be allowed. Accordingly, we refuse the application for permission to appeal.
Mr B Taylor of counsel for the Appellant.
Ms E G Hartley of counsel for the Respondent.
Videolink to Darwin and Perth.
1  FWA 5224
2 Exhibit 4 at paragraphs 17, 21 and 23; Transcript 18 June 2012 at paragraphs 501-502.
3 Exhibit 4 Statement of Bridget Jane Curtis paragraphs 40-44; Exhibit 3 Statement of Ms Erina Early paragraph 43
4 Transcript, at PN155
5 Transcript, at PN 161.
6 Exhibit 1 Statement of Mr Frank Crawley paragraph 11-14; Transcript PN 133; Respondent submissions appendix 1
7 Exhibit 2 at paragraph 14.
8 Exhibit 4 at paragraph 56.
9 Exhibit 2 at paragraphs 21-23; Transcript 18 June 2012 at paragraphs 174-178.
10 Draft Deed of settlement
11 Exhibit 1 Statement of Mr Frank Crawley Paragraph 45
12 This is so because on appeal FWA has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at  per Gleeson CJ, Gaudron and Hayne JJ
13 (2011) 192 FCR 78 at 90, paragraph .
14 Exhibit 4 Statement of Bridget Jane Curtis Paragraph 63
15 Transcript, at PN180-182
16 Transcript, at PN190-197
17 Exhibit 1 Statement of Mr Frank Crawley Paragraph 36-40
18 Exhibit 3.
19 Transcript, at PN866
20 Exhibit 4 Statement of Ms Bridget Jane Curtis Paragraphs 19-24, 34, 39, 51, 66
21 Transcript, at PN432
22 Transcript, at PN441
23 Transcript, at PN445-449
24 Transcript, at PN507-510
25 Exhibit 4 Statement of Bridget Jane Curtis BJC 1 page 4
26 Transcript, at PN530
27 Transcript, at PN551-557
28 Exhibit 4 Statement of Bridget Jane Curtis BJC 1, MIMS CMI - Epilim page 3
29 Transcript, at PN573-574
30 Transcript, at PN696-709
31 Transcript, at PN595
32 Transcript, at PN722
33 Transcript at paragraphs PN740-742.
34 Exhibit 4 Statement of Bridget Jane Curtis Paragraph 56
35 Exhibit 2 Statement of Ms Erina Early dated 23 May Paragraphts16-22
36 Exhibit 3 Statement of Ms Erina Early Paragraph 56
37 Transcript PN 603
38 Transcript PN 616
39 Exhibit 4 Statement of Bridget Jane Curtis Paragraph 62
40 Transcript PN 633
41 Transcript PN 634-637
42 Transcript PN 560
43 Transcript PN 173
44 Exhibit 4 Statement of Bridget Jane Curtis Paragraph 60
45 Transcript PN 620-623
46 Transcript PN 169
47 Transcript 18 June 2012 at paragraphs 828-830.
48 Ibid at paragraphs 861 and 873.
49 Exhibit 4 Statement of Ms Bridget Jane Curtis BJC 4
50 Transcript, at PN638-654.
51 Transcript, at PN745-748; PN781-783
52  91 CLR 353 at 360-361.
53 Exhibit 1 Statement of Mr Frank Crawley Appendix 3
54 Masters v Cameron
56 (1989) 168 CLR 210 at 216; applied in Hogan v Hinch 92011) 85 ALJR 398 at  per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others  FCAFC 54 at  - .
57 (2010) 197 IR 266 at .
58 KA Murphy v SF Finance Pty, Print P1395, 29 May 1997.
59 Monash Medical Centre Appeal, Print K7312; Brighton City Council v MOA Print J7019 and Motels Awrd Appeal (1977) 187 CAR 446.
60 (1978) 20 ALR 323 at 343; Cf: Gaudron J, in Re: Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305.
61 Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 per McHugh J and Devries v Australian Natinal Railways Commission per Brennan, Gaudron and McHugh JJ.
62 State Rail Authority v Earthline Constructions Pty Ltd (In Liq) (1994) 73 ALJR 306
63 (See Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479; Elitegold Pty Limited v CM Holdings Pty Ltd and Anor  ATPR 40,753 at 47,759.
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