[2017] FWC 2537
The attached document replaces the document previously issued with the above code on 10 May 2017.
Corrected citation in endnote 10.
Matthew Jordon
Acting Associate to Commissioner Bissett
Dated 12 May 2017
| [2017] FWC 2537 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
Dr Michael McShane
(AB2017/13)
COMMISSIONER BISSETT |
MELBOURNE, 10 MAY 2017 |
Application for an order to stop bullying – application for orders to produce document be set aside – document has no apparent relevance – order set aside.
[1] Dr Michael McShane is a lecturer in law at Deakin University (Deakin). He has made an application to the Commission seeking orders that bullying occurring at work stop. One of the employees of Deakin named in Dr McShane’s application is Professor Sandeep Gopalan.
[2] On 21 March 2017 Dr McShane made an application to the Commission for orders for the production of documents. In accordance with that application the Commission made two Orders in identical terms – one directed to Professor Gopalan at Deakin and one directed to Ms Sharon Champness of the University of Newcastle. Each of the Orders sought the production of the “Report by Pinnacle Workplace investigations into allegations of misconduct by Professor Sandeep Gopalan while dean of Newcastle Law School, and prepared in or about mid-2015” (the Report). Dr McShane sought the Report on the grounds that he believed it contained evidence of Professor Gopalan having been at least perceived by a number of staff at University of Newcastle (UON) to have engaged in the sort of conduct proscribed by s.789FC of the Fair Work Act 2009 (FW Act).
[3] Both Professor Gopalan and UON have objected to the production of the Report.
[4] Following a mention of the matter directions were issued for the filing of submissions by each of the parties including Deakin. Each of the parties indicated it was satisfied for the Commission to make a decision on the objections on the basis of the written submissions filed.
Submissions of Deakin and Professor Gopalan
[5] Deakin and Professor Gopalan (collectively referred to as Deakin) submit that the Report is not relevant to the issues in dispute between the parties. Deakin submits that the Report pertains to issues in a completely different workplace and has no nexus to Dr McShane or his work at Deakin. Deakin submits that Dr McShane misstates the meaning of bullying when he asserts that it includes “forms of management behaviour that “may have been exhibited elsewhere” 1 (sic).
[6] Deakin says that, on the basis of the submission of UON on what the Report does relate to (see below), it cannot be relevant to the current proceedings as it does not relate to the facts in dispute – that is if Dr McShane has been bullied at work (at Deakin) by the individuals (including Professor Gopalan) named in his application. On this basis it submits that the Report will not throw light on the issues in the proceedings and hence serves no legitimate forensic purpose.
[7] Deakin further submits that were the Commission to allow the Report to be used in proceedings it would be taking into account an irrelevant consideration and may be drawn into error.
[8] Deakin further submits that the Report should not be allowed for the purpose of demonstrating particular tendencies in Professor Gopalan’s management style. It says that tendency evidence is, at law, prima facie inadmissible as evidence because it has no probative value in determining the actual issues in dispute.
[9] Deakin submits that the Report contains sensitive information about a number of individuals. It says that it would be inappropriate to accept a redacted form of the Report as that could decontextualise the findings. To provide it in full to Dr McShane it says would be unfair to the named individuals.
[10] Deakin disagrees with Dr McShane that issues of confidentiality are outweighed or overborne by the public interest in producing the report. It submits that the authorities relied on by Dr McShane deal primarily with commercially sensitive information. In this instance it (and the UON) is primarily concerned with reputational harm that might come from the production of the Report. Secondly, it submits that is not possible in this case to limit inspection of the Report if it was produced. Thirdly it says that the protection of the integrity of the personal information in the Report outweighs any relevance claimed of the report and that this is a relevant consideration. 2
[11] For these reasons it says the report should not be required to be produced and the Orders vacated.
Submissions of University of Newcastle
[12] The University of Newcastle acknowledges the existence of the Report. The Report was completed in 2015. It submits that it was not, however, commissioned in respect of allegations of misconduct by Professor Gopalan as is described in the Order. It says that the scope of the Report was a workplace review of the UON Law School and the terms of reference for it included:
(a) The management of the School;
(b) Communication amongst employees within the School;
(c) Conflict and interpersonal relationships;
(d) Existence or otherwise of inappropriate conduct; and
(e) Respect and collegiality.
[13] The UON says that, in addition to confidential information regarding the Law School, the Report contains the identity of at least 6 individuals (in addition to Professor Gopalan) and may include personal information that falls within privacy considerations. Some of those individuals have not seen the Report or the Report in full nor had the opportunity to respond to it. It says that the release of the Report could cause irreparable damage to the individuals in question.
[14] It submits that the Report contains confidential information, findings and observations in relation to a number of individuals other than Professor Gopalan which, if released, could cause irreparable damage to reputation. It submits that the invasion of private rights by the release of the Report far outweigh any public interest in its production.
[15] Further, given that the report was completed in 2015, UON submits that it can have no relevance to the matter before the Commission and orders that might be made as it does not deal with matters relevant to the prevention of bullying at Deakin.
[16] UON further submits that the Report does not have any apparent relevance to the matter before the Commission. It is not relevant to whether Dr McShane has been bullied at work (Deakin) by an individual or group of individuals. Dr McShane has not been employed by UON, nor is he a worker in respect of UON as defined in the FW Act. Further it submits that the report is not relevant to determining if there is a risk that Dr McShane will continue to be bullied at work.
[17] UON submits that, even if Dr McShane’s submissions on relevance were accepted (but says they should not be), the Commission should still revoke the Order given the significant burden imposed on UON by production. In this respect it relies on the decision in Re Clerks (Alcoa of Australia – Mining and Refining) Consolidated Award 1985 3 (Clerks (Alcoa) Case) in which Munro J said:
Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgment upon the particular facts in each case. That judgment requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.
[18] UON says that the burden presented in producing the report far outweighs any probative value it may present.
[19] UON submits that the Report does not have any “significant probative value” in the substantive proceedings (for the purposes of s.97 of the Evidence Act 1955 (Cth)) and is therefore inadmissible where “significant” has been said to mean “important” or “of consequence” 4 and “probative value” means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.5
[20] The Report does not relate to Dr McShane nor to Deakin University which, UON submits, are core elements under s.798FF of the FW Act. As the Report does not substantiate claims of bullying of Dr McShane by Professor Gopalan it is incapable of having “significant probative value” in the substantive matter.
[21] For these reasons UON seeks that the Order be revoked.
[22] In the alternative UON submits that, should the Order not be revoked, it should be varied such that UON is required to produce a redacted form of the Report such that it not reveal names and information not directly related to Professor Gopalan and information not related to allegations of bullying against Professor Gopalan and that the Report be subject to orders with respect to access, confidentiality and destruction.
Submissions of Dr McShane
[23] Dr McShane submits that the issue currently before the Commission is merely the first step governing the production, inspection and admission at hearing of the type of material contained in the Report. Dr McShane submits that at each of these steps “the stranger and the parties have different rights and the functions of the judge differ”. 6 He says that, to the extent that the parties have addressed matters that go to inspection and admission he has, out of an abundance of caution, responded to these matters.
[24] Dr McShane submits that, with respect to those objections of Deakin, Professor Gopalan and UON that relate to the first stage (that is production), each has ignored the relevant principles governing the exercise of the Commission’s discretion set out in Clerks (Alcoa) Case and adopted by his Honour Vice President Lawler in APESMA v Airly Coal Pty Ltd: 7
(a) [The] subpoena must specify with reasonable particularity documents which are required to be produced…;
(b) The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute
(c) A party will not be required to produce documents where… where the demand for production is a `fishing expedition', in the sense that it is an endeavour. 8 (sic)
[25] Dr McShane submits that he has named the document acknowledged by UON to exist.
[26] Further, he says that the conduct of Professor Gopalan as a manager is “materially relevant to the substantive issues in dispute as this conduct is constitutive of the sort of behaviour the Commission’s anti-bullying jurisdiction was enacted to protect against.” 9 As such he submits that the material he seeks is not being sought to determine if he is able to articulate a legal dispute but is directed to further adjectival goals. He says therefore that the Report is relevant in the sense contemplated by s.55 of the Evidence Act.
[27] Dr McShane submits that the Report specifically addresses matters relating to the management of the Newcastle Law School at a point in time when Professor Gopalan was Dean of the School. It is therefore sought for a legitimate forensic purpose. He says that the application before the Commission is for anti-bullying orders, bullying relates to forms of management behaviour and that behaviour may have been exhibited elsewhere. That the Report did not find bullying had occurred is irrelevant since the test for production is whether the Report is capable of being relevant to an issue that might arise.
[28] Dr McShane submits that the question to be addressed is whether or not the Commission should order production of the Report. Whether inspection should be permitted and whether it should be tendered as evidence are not relevant to whether it should be produced.
[29] As to the matter of confidentially Dr McShane submits that the weight of authority 10 favours production of a document even if it is confidential subject to any limitations considered appropriate by the Commission.
[30] Dr McShane submits that tendency evidence is admissible provided reasonable notice of the evidence is given and the Commission considers it has significant probative value. 11
[31] Dr McShane submits that he has provided notice of his intention to raise tendency evidence as required by s.97(1)(a) of the Evidence Act.
[32] “Probative value” is defined in the Dictionary to the Evidence Act to mean:
The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
[33] Dr McShane submits that Deakin’s objection is misconceived and confuses common law requirements governing tendency evidence with those set out in the Evidence Act. Further, he submits that Deakin misconceives the relevant test in arguing that the Report does not substantiate bullying allegations and hence is not capable of supporting Dr McShane’s position. He says that, in the first instance, all he need show is that the Report is relevant as specified in s.55 of the Evidence Act – that is that there is some rational connection between the evidence for which admission is sought and its capacity to prove or support reasoning leading to proof of one or more of the facts in dispute.
[34] Dr McShane rejects any suggestion in the submissions of Deakin that he is attempting to undermine the anti-bullying provisions of the FW Act.
[35] Dr McShane submits that the Report should be produced, it should be subject to inspection and it should be admitted into evidence.
Relevant principles
[36] The Fair Work Commission (Commission) has a broad discretion in how it may inform itself. Section 590 of the FW Act states:
590 Powers of the FWC to inform itself
(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.
(2) Without limiting subsection (1), the FWC may inform itself in the following ways:
(a) by requiring a person to attend before the FWC;
(b) by inviting, subject to any terms and conditions determined by the FWC, oral or written submissions;
(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;
(d) by taking evidence under oath or affirmation in accordance with the regulations (if any);
(e) by requiring an FWC Member, a Full Bench or an Expert Panel to prepare a report;
(f) by conducting inquiries;
(g) by undertaking or commissioning research;
(h) by conducting a conference (see section 592);
(i) by holding a hearing (see section 593).
[37] The power to require production of documents is a broad discretionary power to be exercised in accordance with the principles applied by the Courts. 12
[38] There are three distinct stages in relation to production and admission to evidence of documents pursuant to a summons or Subpoena. These were identified by Moffatt P in National Employers’ Mutual General Insurance Association Ltd v Waind and Hill 13 where he said
The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights and the function of the judge differs. 14
[39] In The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation 15 Justice Mason discussed the use of the discretion to issue a summons and said:
When application is made for the issue of a summons the Commission has discretion to grant or refuse it. Generally speaking, the Commission will exercise its discretion in favour of the applicant unless it appears that it would be vexatious or frivolous or otherwise an abuse of process to issue the summons.
[40] The principles applied by the Courts in the exercise of the power to issue a summons (or the issue of orders to produce made under the FW Act) were identified in Clerks (Alcoa) Case where Munro J said:
In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce document. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate. In the case of a corporation, it is usually appropriate, where the custodianship of documents is not clear, to direct the subpoena to the `Proper Officer'. It is not legitimate to use a subpoena for what, in effect, would be discovery of documents against a person not liable to make discovery, or as a substitute for discovery which should be applied for at the proper time. The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute. In the first instance the documents are produced to the tribunal upon whom it falls to examine the documents, assess their relevance and determine what access by the parties to the documents may be appropriate; (section 187 of the Act appears to be the statutory counterpart of this principle of practice). A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a `fishing expedition', in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carryout an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.
[41] In this respect Dr McShane is correct that the three relevant matters in relation to the determination of the objections before me are:
a) Whether the Orders specified with “reasonable particularity” the documents to be produced;
b) Whether the Report sought by the Orders is “of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute”; and
c) Whether production of the Report would be “oppressive” or where production is a “fishing exhibition” in which case production may not be required.
[42] In Airly Coal Lawler VP added a fourth matter to those three listed above where he said that “confidentiality can be relevant to whether production ought to be required” 16 although it may be that this is an issue that falls with the question of the oppressive nature of the document sought.
[43] In Patrick Stevedores No 1 Limited 17 his Honour Vice President Ross, in considering the issue of subpoenas said:
…In particular I am required to balance on the one hand the reasonableness of the burden imposed on the recipients and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and ensuring that all material relevant to the issues before me are available to the parties to enable them to advance their respective cases.
The balance between these factors depends upon the circumstances of a particular case. In this context I am conscious that the outcome of these proceedings may have serious consequences for the respondents if the order sought is granted.
[44] I have taken all of these matters into account in coming to my decision.
Were the documents specified with reasonable particularity?
[45] I am satisfied that the document sought (the Report) was specified with reasonable particularity. UON acknowledge the existence of the Report. This is not a ground (and is not pressed) as a basis to not require production.
Relevance
[46] In determining relevance the nature of the substantive application made by Dr McShane requires some examination.
[47] Dr McShane has made an application pursuant to s.789FF of the FW Act for orders that bullying cease. Dr McShane claims that he has been bullied at work by Professor Gopalan and two others.
[48] Section 789FD of the FW Act relevantly states:
789FD When is a worker bullied at work?
(1) A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.
(2) To avoid doubt, subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
[49] The matters that fall to determination by the Commission (accepting that there is no dispute that Dr McShane is a worker and Deakin is a constitutionally-covered business) are whether any of the three named individuals have repeatedly engaged in unreasonable behaviour directed at Dr McShane at work which creates a risk to health and safety. Prior to making any order the Commission must also be satisfied that there is a risk that Dr McShane will continue to be bullied at work. 18
[50] In Re Ms SB 19 Hampton C said:
[41] …the concept of individuals ‘repeatedly behaving’ unreasonably implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent ‘repeatedly’ behaving unreasonably (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated. What is required is repeated unreasonable behaviour by the individual or individuals towards the applicant worker or a group of workers to which the applicant belongs.
…
[43] ‘Unreasonable behaviour’ should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.
[44] The unreasonable behaviour must also create a risk to health and safety. Therefore there must be a causal link between the behaviour and the risk to health and safety. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. This would seem to be equally applicable here. [footnotes omitted]
[51] In Bowker v DP World Melbourne Limited 20 a Full Bench of the Commission determined:
[48] We have concluded that the legal meaning of the expression ‘while the worker is at work’ certainly encompasses the circumstance in which the alleged bullying conduct (ie the repeated unreasonable behaviour) occurs at a time when the worker is ‘performing work’. Further, being ‘at work’ is not limited to the confines of a physical workplace. A worker will be ‘at work’ at any time the worker performs work, regardless of his or her location or the time of day.
[49] While a worker performing work will be ‘at work’ that is not an exhaustive exposition of the circumstances in which a worker may be held to be at work within the meaning of s.789FD(1)(a). For example, it was common ground at the hearing of this matter that a worker will be ‘at work’ while on an authorised meal break at the workplace and we agree with that proposition. But while a worker is on such a meal break he or she is not performing work. Indeed by definition they are on a break from the performance of work. It is unnecessary for us to determine whether the provisions apply in circumstances where a meal break is taken outside the workplace.
[50] In our view an approach which equates the meaning of ‘at work’ to the performance of work is inapt to encompass the range of circumstances in which a worker may be said to be ‘at work’.
[51] It seems to us that the concept of being ‘at work’ encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer, or in the case of a contractor their principal (such as being on a meal break or accessing social media while performing work)…
[53] In most instances the practical application of the definition of ‘bullied at work’ in s.789FD will present little difficulty. But there will undoubtedly be cases which will be more complex, some of which were canvassed during the course of oral argument. For example, a worker receives a phone call from their supervisor about work related matters, while at home and outside their usual working hours. Is the worker ‘at work’ when he or she engages in such a conversation? In most cases the answer will be yes, but it will depend on the context, including custom and practice, and the nature of the worker’s contract. 21
[52] These decisions are relevant in that they make clear the scope of the matter for determination required in the substantive matter.
[53] The immediate question before me is if the Report has any apparent relevance in determining if Professor Gopalan’s behaviour towards Dr McShane at work is unreasonable and repeated and creates a risk to health and safety.
[54] The Report relates to an investigation of matters at the University of Newcastle. Dr McShane does not say that he was subject to bullying behaviour because of any behaviour that occurred at UON or behaviour engaged in by Professor Gopalan whilst he was at UON.
[55] The findings the Commission must make in relation to the substantive application relate to behaviour that has occurred while Professor Gopalan has been employed by Deakin. Understood in this light, the substantive task weighs against a finding that the Report is relevant to the matters to be ultimately determined by the Commission.
[56] Dr McShane has, in his substantive application to the Commission, asserted that Professor Gopalan engaged in certain behaviour that constitutes bullying. Whether he has, as a matter of fact, engaged in that behaviour is a matter that falls for determination of the Commission. The Report does not need to have direct relevance to that finding that must be made, but must have apparent relevance.
[57] Insofar as the Report goes to the behaviour of Professor Gopalan in a different workplace it would appear to have little apparent relevance to the substantive matter. Professor Gopalan’s behaviour at UON, in circumstances where Dr McShane was not employed by UON, cannot have relevance to the determination of Professor Gopalan’s behaviour with respect to Dr McShane at Deakin. In this respect Dr McShane’s comment that “[t]he application is for an anti-bullying order and bullying relates to particular forms of management behaviour that may have been exhibited elsewhere” 22 is misplaced. I am not satisfied that the Report will “support reasoning leading to proof” of facts in dispute.
[58] The Report does not deal with Professor Gopalan’s behaviour during the period of his employment with Deakin or that period during which Dr McShane says he was bullied at work by Professor Gopalan (and others).
[59] For these reasons I am not convinced that a report with respect to behaviours at a different workplace (and employer) in a different context has any apparent relevance to the substantive matter before me.
Oppressive
[60] A further ground on which production of the Report might not be required is if the grant of the order would be oppressive. This captures matters of confidentiality and harm to reputation as identified in Airly Coal.
[61] The Report deals with a range of matters in relation to the Law School at UON. The terms of reference for the Report (or some of them) are outlined above. It goes beyond the behaviour of Professor Gopalan. I accept that there are aspects of the report that have not been seen, or seen in full, by those named in the Report and that some of those named may not have had the opportunity to provide any response to the report.
[62] UON says that the potential irreparable damage caused by the production of the Report far outweighs any probative value it may have.
[63] In Gordon Cooper and Rosemary Cooper 23 Commissioner Simpson considered in detail the relevant authorities in relation to production of confidential documents. Whilst the document under consideration in that matter related to an investigation into the actual behaviour subject to the applications this does not diminish the legal basis on which the Commissioner made his decision.
[64] I am sympathetic to submissions of UON and Deakin on this point. Clearly the Report had a wider remit than a consideration of the behaviours of Professor Gopalan. I am also sympathetic to the submissions of Deakin that a redacted version of the Report would remove critical contextual information and it should not be produced on a redacted basis if production was required. This alone however would not provide a basis to grant the applications to revoke to Orders.
Conclusion on production
[65] I have carefully considered all of the material before me. I have been mindful of the words of Justice Mason set out above that the Commission would, generally exercise its discretion in favour of an applicant.
[66] However, for all of the reasons given above but particularly the lack of connection between Dr McShane and the behaviour of Professor Gopalan at the University of Newcastle, I am not satisfied that the Report should be produced to the Commission in that it does not meet the test of apparent relevance.
[67] I should add that, even if I did require production and allowed inspection of the Report and based on the submissions of the parties, my preliminary view is that the Report would not be of “significant probative value” such that it should be admitted into evidence in the substantive proceedings.
[68] In his written submissions Dr McShane sought to rely on comments made by the legal representative of Deakin during a private conference of the parties. Deakin objected to the inclusion of this in written materials and asked Dr McShane to withdraw the statement. Whilst initially agreeing, Dr McShane then said that he wished to press for inclusion of the statement in his submission.
[69] I have not had regard to Dr McShane’s submission with respect to statement made during a conference of the parties.
[70] The conference was conducted in private and the parties were advised of this at the commencement of the conference. Whilst Dr McShane accepts that privacy applies to discussions around settlement I do not accept that it is a reasonable that a party decide, after the event, to publicly state what might have been said – whether a direct part of a settlement offer or not – by the other party. It is not Dr McShane’s right to publicly disclose what Deakin might have said in conference.
[71] Confidence in the privacy of conferences before the Commission is important to the capacity for the Commission to explore issues with the parties to a matter arising under the Act. For this reason I have not taken account of the matters raised by Dr McShane which were discussed during the conference.
Conclusion
[72] The application by Deakin and University of Newcastle to set aside the Orders requiring production of the Report are granted.
[73] The Orders are hereby set aside.
COMMISSIONER
1 Deakin reply submission, 28 April 2017, paragraph 2.
2 Apache NorthWest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 at 381.
3 Print H2892.
4 See Regina v Lockyer (1996) 89 A Crim R 457).
5 Dictionary to the Evidence Act 1955 (Cth).
6 National Employers’ Mutual General Insurance Association Ltd v Waind and Hill (1978) 1 NSWLR 372, cited in APESMA v Airly Coal Pty Ltd PR962479 at [13].
8 Submissions of Dr McShane, 27 April 2017, paragraph 6.
9 Ibid, paragraph 7.
10 Clermont Coal v Brown [2015] FWCFB 2460; Airly Coal; Mobil Oil v Guina Developments [VSCA 1996] cited in Application by Cooper [2016] FWC 7627; Amie Mac v Bank of Queensland [2015] FWC 774.
11 Evidence Act 1995 (Cth) s.97.
12 Clerks (Alcoa) Case.
13 (1978) 1 NSWLR 372.
14 Ibid, p381.
15 (1984) 159 CLR 163 at [12].
17 Print P8680.
18 FW Act s.789FF(1)(b)(ii).
21 Ibid.
22 Dr McShane outline of submission, 20 April 2017, paragraph 10.
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