DECISION

Fair Work Act 2009
s.604—Appeal of decision

Ian Menzies
v
Lindsay Australia Limited T/A Lindsay Brothers Management P/L
(C2017/6986)

Appeal against decision [[2017] FWC 6996] of Commissioner Riordan at Sydney on 22 December 2017 in matter number C2017/6462; arguable case of appellable error established; satisfied that public interest is enlivened; permission to appeal is granted

Introduction

[1] On 22 November 2017, Mr Ian Menzies, submitted an application under s.365 of the Fair Work Act 2009 (Cth) to deal with a general protections dispute in accordance with Part 3-1. The application was lodged outside of the 21 day period in which such applications are to be made. Lindsay Australia Limited T/A Lindsay Brothers Management P/L (Lindsay Brothers) objected to the application and the matter was set down for a hearing by telephone.

[2] On 18 December 2017, Mr Menzies lodged a Notice of Appeal, in which he sought permission to appeal against:

● the direction that the matter concerning the jurisdictional objection would be by way of a telephone hearing;

● the legal representation of Lindsay Brothers from 4 December 2017 in the absence of requesting permission; and

● the decision¹ (Decision), in which Commissioner Riordan dealt with whether Lindsay Brothers should be granted permission for legal representation for the telephone hearing under s.596 of the Act.

[3] This decision deals with the Mr Menzies’ appeal from the Decision and the other grounds raised by Mr Menzies.

Background

[4] On 24 November 2017, the Commission sent to both parties correspondence identifying that Mr Menzies had filed his application outside of the legislated timeframe.

[5] On 4 December 2017, Lindsay Brothers filed the Employer’s Response which included a jurisdictional objection to the application, and a Notice of Representative Commencing to Act, in effect foreshadowing that Lindsay Brothers would seek permission to be represented by a lawyer at any hearing.

[6] The Chambers of Deputy President Clancy sent correspondence to the parties on 5 December 2017 informing both that the file had been allocated to Commissioner Riordan and the matter would be listed for an Extension of Time Conference/Hearing via telephone on 19 December 2017.

[7] It followed that a Notice of Listing was issued from the Chambers of Commissioner Riordan on 5 December 2017 which required both Mr Menzies and Lindsay Brothers to file their Outline of Argument by 13 December 2017.

[8] By email dated 13 December 2017 time stamped 11:55am, the legal representative of Lindsay Brothers, Mr Russ Baldwin, submitted the Respondent’s Outline of Argument and requested permission to appear on behalf of the Respondent at the Extension of Time Conference/Hearing on 19 December 2017. The email dated 13 December 2017 set out:

I respectfully seek permission to appear on behalf of the Respondent at the conference hearing of the Extension of Time Application pursuant to section 596(2) of the Fair Work Act 2009. It is submitted that the granting of permission will enable the matter to be dealt with more efficiently taking into account the relative complexity of the jurisdictional issue under consideration.

[9] Mr Menzies emailed the Chambers of Commissioner Riordan on 13 December 2017 time stamped 12:36pm setting out, among other matters:

2. I have been trying to contact chambers for some days, however have been told the phone system is not working properly. I request that I be able to present my case in person rather than over the phone.

I note the Respondent’s represented by special Counsel with a Martin Place address. I assume it ought not be onerous for the Respondent. I am completely opposed to telephone hearings unless contentions are resolved by prior consent which is not the case in this matter.

[10] An email was sent from the Chambers of Commissioner Riordan on 15 December 2017 time stamped 11:00am. It requested that Lindsay Brothers provide its view in relation to the parties appearing in person rather than over the phone. Mr Baldwin requested that the matter proceed by way of telephone conference as the representative of Lindsay Brothers, a Ms Strong, was based in Brisbane and it would be inconvenient for her to travel to Sydney for the conference/hearing.

[11] By email dated 15 December 2017 time stamped 11:18am, the Chambers of Commissioner Riordan confirmed that the matter would proceed by way of a telephone hearing and that this was the standard method of how the Commission conducts Extension of Time hearings.

[12] On 18 December 2017, the Chambers of Commissioner Riordan sent an email time stamped 8:13am in which it was confirmed that the Commissioner granted permission for Lindsay Brothers to be legally represented at the telephone hearing. On the same date the Commissioner advised Mr Menzies that if he wished to attend the Commission then he was able to do so but that Lindsay Brothers would be appearing by telephone.

[13] On 22 December 2017, Commissioner Riordan issued the reasons for his decision to grant Lindsay Brothers permission to be represented².

The appeal

[14] The hearing of both permission to appeal and the merits of the appeal was set down for 8 January 2018. Mr Menzies filed written submissions. However, given Mr Menzies was self-represented, the Bench provided guidance on the legal principles concerning appeals of this nature and the opportunity was afforded for Mr Menzies to provide oral submissions to clarify and supplement the submissions he had ventilated in the Notice. Lindsay Brothers had filed written submissions. The Full Bench having heard from Mr Menzies advised that it did not need to hear from Lindsay Brothers and therefore did not, at the hearing, determine Lindsay Brothers’ request for permission to be represented by lawyers.

[15] Following the hearing on 8 January 2018, the Chambers of Deputy President Gooley wrote to the parties observing that:

… It is not clear from the material that Mr Menzies was aware, at that time, of the application made by Lindsay Brothers to be represented. The Commission file discloses that Mr Menzies was not asked to respond to the application by Lindsay Brothers to be represented prior to the Commissioner deciding on 18 December 2017 to grant permission. Mr Menzies lodged his appeal the same day.

…

At the appeal hearing, we did not hear from Lindsay Brothers in relation to the question of whether Mr Menzies was denied procedural fairness when he was not provided with an opportunity to be heard on the question of whether permission to appear should be granted, in particular he was not afforded an opportunity to address the question of whether the matter involved such complexity that it would enable the matter to be dealt with more efficiently if permission were granted (Chambers’ Email).

[16] The parties were directed to file and serve written submissions addressing the question of whether Mr Menzies was denied procedural fairness such that it is in the public interest to grant permission to appeal and quash the decision of Commissioner Riordan.

[17] Submissions were subsequently received from Lindsay Brothers and Mr Menzies.

Legal representation

[18] Mr Menzies was firmly opposed to Lindsay Brothers being granted permission to be legally represented for the purpose of making written submissions to address the issues raised in the Chambers’ Email. His objections were considered.

[19] However, the decision appealed is an interlocutory decision that raises issues of procedural fairness. Disturbing a decision that is interlocutory colours the appeal with a level of complexity and that is sufficient to conclude that ss.596(2)(a) of the Act is satisfied. In circumstances where there is authoritative case law and legal principle regarding both the appeal of interlocutory decisions, s.596 of the Act and procedural fairness, the Bench is satisfied that legal representation would enable the matter to be dealt with more efficiently.

Appeal grounds and public interest

[20] Two grounds of appeal were set out in the Notice of Appeal Form F7. Those grounds were subsequently set out at page 16 in the document titled ‘Affidavit/Submission of Ian David Menzies that the Appellant filed on 28 December 2017, as follows:

1. Allowing the Respondent to be represented contrary to the Fair Work Act – Section 596.

Explanation: My Complaint as at 17 December 2017 was that the Respondent to my knowledge at that time had been represented since 5 December 2017. F.W.A and Commissioner Riordan had turned a blind eye to that. (It appears they often do).

2. Not allowing the applicant to appear in person instead of over the phone.

Explanation: Indeed no explanation is needed it is bizarre that the Fair Work Commission that operates along the same lines as any Court would not allow a party to a proceedings to appear in person.

I submit that such a regressive step is along the lines of the love of default/Exparte Judgments and schadenfreudism by most lawyers.

[21] The document titled ‘In Response to the Respondent’s Barrister’s Submissions – 3 January 2018’, Mr Menzies elucidated a further appeal ground, which for ease of reading has been referred to as appeal Ground 3:

3. My third Appeal point arose on 22 December 2017. Seven days after my first two points upon Commission Riordan’s belated Reason for his Decision allowing MR.R. Baldwin to appear on 18 December 2017.

His Honour then without submissions from either party wrote in excess of four pages of reason why he gave permission for Mr Baldwin of BBW Lawyer to appear. However he extended in his reasons to representing the Respondent.

[22] At the hearing, Mr Menzies confirmed that he sought permission to appeal against the Decision.

[23] Concerning the consideration of the ‘public interest’ Mr Menzies advanced two arguments. First, that it would be unjust and unfair in light of s.596 of the Act that a large corporation such as Lindsay Brothers would be represented by a large law firm given at the heart of the Commission’s obligations was the provision of a fair hearing. Second, that it was an unalienable right to appear in person regarding a matter.

Submissions of Mr Menzies

[24] Mr Menzies submitted that legal representation ought to have been decided by submissions from the parties without the involvement of lawyers.

[25] Further, Mr Menzies provided submissions regarding the complexity of the matter at first instance, the prejudice he had suffered and the hardship faced by both him and his wife. It is clear that Mr Menzies invested time in preparing his written submissions and those submissions have been duly considered.

[26] Regarding the direction for supplementary submissions on the issues raised in the Chambers’ Email, there was little that could be discerned from the submissions on this point.

Submissions of the Respondent

[27] Lindsay Brothers submitted that the decision from which Mr Menzies appealed was a procedural or interlocutory decision. Referring to the authorities of Hutton v Sykes Australia Pty Ltd³ (Hutton) and the Full Bench decision of the Australian Industrial Relations Commission in Comsec Trading Ltd v Finance Sector Union of Australia (FSU Case),⁴ it was submitted that the Commission had been reluctant to entertain appeals of interlocutory and procedural decisions⁵.

[28] With regards to Ground 1, Lindsay Brothers framed the ground as a complaint that was baseless. Relying on Rule 12(1) of the Fair Work Commission Rules 2013, Lindsay Brothers submitted that legal representation in the proceedings has involved correspondence and preparation of submissions. It was said that such representation was entirely permissible under the Rule.

[29] With leave having been granted to Mr Menzies to appear in person⁶, Lindsay Brothers submitted nothing further regarding Ground 2.

[30] However, concerning Ground 3, Lindsay Brothers submitted that the decision to allow it to be legally represented did not determine substantive rights but outlined the manner in which the Commission intended to hear the out of time Application. In its supplementary submissions Lindsay Brothers submitted:

…the Appellant was aware from 4 December 2017 that the Respondent’s legal representatives intended to seek permission/leave to appear at the hearing of jurisdictional objection. At no time in the period from 4 December 2017 up to the filing of the Notice of Appeal on 18 December 2017 did the Appellant raise an objection to the Respondents lawyers seeking permission to appear at any hearing of the out of time objection.

[31] Lindsay Brothers submitted that it understood that Commissioner Riordan did not seek the views of Mr Menzies before exercising its discretion to grant legal representation.

[32] With regard to the decision in Warrell v Walton (Warrell)⁷, Counsel for Lindsay Brothers advanced that the facts in Warrell were demonstrably different from the matter before the Bench and on that basis the case could be distinguished. Counsel submitted:

i. The appeal involves a decision from an interlocutory decision.

ii. The decision on appeal does not involve a hearing. No substantive rights have been determined as a consequence of the exercise of the discretion to grant permission under section 596(2).

iii. The Respondent specifically sought permission to appear under section 596(2) of the FW Act.

iv. Commissioner Riordan considered the discretionary factors set out in section 596(2) of the FW Act⁸.

v. Commissioner Riordan exercised his discretion to grant permission under section 596(2)(a) because of the “complexity of the issues that the Appellant has raised”⁹.

vi. The Applicant has not suffered any prejudice as a consequence of the interlocutory decision. Both parties filed extensive written submissions in relation to the out of time objection and the decision to grant or not grant permission to appear would have little or no bearing on the outcome because the Respondent could have simply adopted the submissions that had been prepared on its behalf by its solicitors in accordance with the Fair Work Rules¹⁰.

[33] It was further submitted that the decision from which Mr Menzies appealed was a procedural/interlocutory decision. It followed that by virtue of s.589 of the Act the Commissioner was not required to seek or obtain the views of Mr Menzies before exercising the discretion to grant legal representation under ss.596(2) of the Act.

[34] Counsel on behalf of Lindsay Brothers submitted that the public interest was not enlivened in this matter citing the decisions of the FSU Case¹¹ and Hutton. In the FSU Case it was stated:

… it is in the public interest to discourage appeals from preliminary or procedural rulings…¹²

Appeal and permission to appeal principles

[35] An appeal of a decision is not as of right and permission to appeal must first be obtained¹³. Subsection 604(2) of the Act requires the Commission to grant permission to appeal if satisfied 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 judgment¹⁴.

[36] Other than the special case in ss.604(2), the grounds for granting permission to appeal are not specified although it is understood that the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker¹⁵. Considerations which would usually justify the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration or that substantial injustice may result if leave is refused¹⁶.

[37] A decision to permit legal representation of a party involves the exercise of discretion. In the High Court decision of Coal and Allied v AIRC¹⁷ Gleeson CJ, Gaudron and Hayne JJ said:

“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which ‘no one [consideration] and no combination of [considerations] is necessarily determinative of the result. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.” (references omitted)¹⁸.

[38] Discretionary decisions are subject to review on the grounds expressed by the High Court in House v The King¹⁹:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

[39] Subsection 604(2) requires the Commission to grant permission to appeal if it is satisfied 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 judgment²⁰. The public interest is not satisfied simply by the identification of error²¹ or a preference for a different result²². In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:

... the public interest might be attracted where a matter raises issues 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…²³

Consideration

[40] We have determined that Mr Menzies has made out appellable error in respect of Ground 3 and it is in the public interest to grant permission to appeal and uphold that ground of appeal. Our reasons for concluding this are shortly stated in addition to traversing our reasons regarding Grounds 1 and 2.

Ground 1

[41] Legal representation regarding any activities before or outside of a conciliation conference, determinative conference, or interlocutory or final hearing, is permissible and it follows that permission from the Commission will generally not be required²⁴.

[42] Following the lodgement of the Form F53, Notice of Representative Commencing to Act, legal representation commenced. It is however accepted that the making of written applications and submissions, the lodgement of documents or corresponding with the Commission is exempted from the general prohibition under ss.596(1) of the Act²⁵. This is an important point and distinguishes this Ground from that of Ground 3. However, Rule 12(1) does not preclude a party from objecting to such representation²⁶. Nevertheless, initial recourse is provided under the Rules, whereby the Commission can issue a direction contrary to what is set down in Rule 12²⁷.

[43] Mr Menzies raised no issue regarding the legal representation of Lindsay Brothers from 4 December 2017 until he lodged the Notice of Appeal. Had Mr Menzies raised the issue before the lodgement of the Notice of Appeal, the Commissioner would have inevitably been positioned to have addressed Mr Menzies’ objection through the issuance of a direction.

[44] Until such time as the Commissioner determined to grant permission for Lindsay Brothers to be represented by a legal practitioner or had rejected an application for a direction under Rule 12, there was neither a decision nor direction by the Commissioner from which an appeal could be brought. We therefore find that the public interest is not enlivened.

Ground 2

[45] Mr Menzies advanced that the fundamental issue for him in this matter was the rejection of his request to appear in person for the purpose of the jurisdictional hearing. While that issue had been resolved following leave to appear having been granted, it would be fair to surmise that Mr Menzies remained dissatisfied.

[46] The Commission is obliged to perform its functions and exercise its power in a manner that is quick, informal and avoids unnecessary technicality. A hearing by telephone aligns with this obligation. Mr Menzies submits:

… on the whole those workers that have been dismissed are self-represented and often as is my case has to now try to survive on welfare and on top of that by the sophistry of the Fair Work Commission has had to prepare countless documents and travel all the way to Melbourne…²⁸.

[47] A direction for a conference/hearing to be conducted by way of telephone obviates the requirement for parties to be present in person and may in some circumstances address the very issue alluded to by Mr Menzies notably to ‘travel all the way to Melbourne’.

[48] However, in circumstances such as those faced by Mr Menzies, a party may request to appear in person rather than by telephone. Mr Menzies has made that request and leave to appear in person has been provided. There has been no prejudice to Mr Menzies from the initial decision to reject his request to appear in person and at all times there was never any suggestion that Mr Menzies would be denied the opportunity to be heard.

[49] Ever mindful that Ground 2 encompasses an interlocutory direction we are unpersuaded that the Commissioner erred or that the public interest is enlivened. Courts and tribunals have generally discouraged appeals from preliminary or procedural rulings for reasons traversed in Hutton²⁹.

Ground 3

[50] The Commissioner issued a Decision that permitted Lindsay Brothers to be legally represented for the purpose of the hearing on jurisdiction. Lindsay Brothers concedes that Commissioner Riordan did not seek the views of Mr Menzies before exercising his discretion to grant legal representation.

[51] Section 577 of the Act provides that the Commission:

…must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

[52] In the decision of Hutton³⁰ the Full Bench observed that an appeal that challenges an interlocutory or procedural decision is relevant to the determination of permission to appeal³¹. It continued that courts and tribunals have generally discouraged appeals from preliminary or procedural rulings and set out reasons for this³²:

Permitting appeals against interlocutory or procedural rulings may prolong the proceedings overall and increase the costs to the parties. There are other reasons why appellate intervention at an early stage may be undesirable. Procedural rulings may be altered later in the case and the party complaining about a procedural decision might ultimately be successful in the substantive proceedings. In such a case any earlier appeal in relation to a preliminary or procedural issue would be rendered futile.

[53] We do not consider that the Decision is one in which the subject matter traversed is merely procedural. Commissioner Riordan was charged with authority to determine whether permission to be legally represented should, or should not, be granted for the purpose of a hearing on jurisdiction.

[54] The Federal Court decision in Warrell³³ clearly provides that a decision to grant or refuse ‘permission’ for a party to be represented by a ‘lawyer’ under s.596 of the Act cannot be properly characterised as a mere procedural decision³⁴. It is said to be a decision that may fundamentally change the dynamics and manner in which a hearing is conducted³⁵. Further, the constraints imposed by ss.596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere ‘formal’ act to be acceded to upon the mere making of a request. While Lindsay Bothers has relied upon s.589 of the Act to support its contention that the Commissioner was not obliged to hear or perhaps otherwise countenance Mr Menzies’ view, we consider this argument lacks merit.

[55] A request for permission was made by Counsel for Lindsay Brothers on 3 December 2017. That request duly stated:

I respectfully seek permission to appear on behalf of the Respondent at the conference hearing of the Extension of Time Application pursuant to section 596(2) of the Fair Work Act 2009. It is submitted that the granting of permission will enable the matter to be dealt with more efficiently taking into account the relative complexity of the jurisdictional issue under consideration.

[56] On 18 December 2017, the Chambers of Commissioner Riordan sent an email time stamped 8:13am in which it was confirmed that the Commissioner granted permission for Lindsay Brothers to be legally represented at the telephone hearing. It is clear on the evidence that before reaching his decision regarding legal representation, the Commissioner had neither invited Mr Menzies to respond to the request of Counsel for Lindsay Brothers nor had heard from Mr Menzies regarding the request.

[57] It is apparent from the terms of s.577(a) of the Act that the Commission is required to operate in a manner that is both fair and just. While the matter may be considered interlocutory and as such this Bench would understandably have a discernible reticence to depart from the Full Bench authority of Hutton, we are satisfied nevertheless that such departure is warranted.

[58] In arriving at his Decision the Commissioner exercised discretion. Quite correctly Mr Menzies acknowledged the decision of House v The King³⁶ traverses the legal principles regarding appeals from discretionary decisions.

[59] The Commissioner identified that had Mr Menzies objected to Lindsay Brothers’ request for permission to be legally represented he would have considered such³⁷. No objection was raised.

[60] Mr Menzies however was never invited by the Commissioner to provide his view regarding the request. We are satisfied that the obligation to perform functions and exercise powers in a manner that is fair and just does not thereafter impose upon a party an obligation to object to a request for permission to be legally represented in the absence of being invited to do so.

[61] Procedural fairness requires that a person who may be affected by a decision be informed of the case against her or him and that she or he be given an opportunity to answer it, the opportunity being reasonable³⁸. In turn we consider that it was incumbent on the Commissioner to invite Mr Menzies to provide his submissions on the request thus enabling Mr Menzies to have the opportunity to be heard.

[62] We are satisfied that the Commissioner erred by failing to hear from Mr Menzies on whether one or other of the constraints imposed by ss.596(2) of the Act had been satisfied.

Conclusion

[63] In these circumstances, we are satisfied that there was an appellable error in the nature of that which is described in House v The King³⁹. The Decision is attended with sufficient doubt regarding a denial of procedural fairness to warrant its reconsideration and a substantial injustice may result if leave is refused. We are persuaded that it is in the public interest to grant permission to appeal and to uphold the appeal.

[64] Therefore, for the reasons given we:

(a) grant permission to appeal;

(b) uphold the appeal;

(c) quash the decision in [2017] FWC 6996; and

(d) refer the matter back to Commissioner Johns to determine whether:

i. permission is granted under s.596 of the Act for Lindsay Brothers to be legally represented at the hearing on an extension of time;

ii. an extension of time will be allowed.

DEPUTY PRESIDENT

Appearances:

I. Menzies on his own behalf.

R. Baldwin for Lindsay Australia Limited T/A Lindsay Brothers Management P/L.

Hearing details:

2018.

Melbourne:

8 January.

Final written submissions:

Appellant:

4 February 2018.

Respondent:

16 January 2018.

<PR600487>

1 Ian Menzies v Lindsay Australia Limited T/A Lindsay Brothers Management P/L [2017] FWC 6996.

2 Ibid.

3 [2014] FWCFB 3384 [3].

4 (2004) 131 IR 236.

5 Section 589 of the Act.

6 Appellant’s Submission at 35 [5].

7 [2013] FCA 291.

8 Ian Menzies v Lindsay Australia Limited T/A Lindsay Brothers Management P/L [2017] FWC 6996 [9].

9 Ibid [15] [16].

10 See Rule 12(1)(a) of the Fair Work Commission Rules 2013.

11 (2004) 131 IR 236.

12 Ibid [11].

13 Section 604(1) of the Act.

14 GlaxoSmithKline Australia Pty Ltd v Making [2010] FWAFB 5343 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; Ferrymen Pty Ltd v Maritime Union of Australia [2013] FWCFB 8025; and NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.

15 Coal and Allied v AIRC (2000) 203 CLR 194 [17].

16 See CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481. Also see the Explanatory Memorandum to what is now s.604, at paragraph 2328.

17 (2000) 203 CLR 194 [19].

18 Coal and Allied v AIRC (2000) 203 CLR 194 [19].

19 House v The King (1936) 55 CLR 499 at [504]-[505].

20 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46].

21 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].

22 Ibid, Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

23 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 [27].

24 Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797.

25 Ibid, Rule 12(1).

26 Ibid.

27 Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797.

28 In Response to the Respondent’s Barrister’s Submission 3 January 2018 [3(a)].

29 [2014] FWCFB 3384.

30 Ibid.

31 Ibid [3].

32 Ibid.

33 [2013] FCA 291, 233 IR 335.

34 Warrell v Walton [2013] FCA 291 [24].

35 Ibid.

36 House v The King (1936) 55 CLR 499 at [504]-[505].

37 Ian Menzies v Lindsay Australia Limited T/A Lindsay Brothers Management P/L [2017] FWC 6996 [15].

38 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.

39 House v The King (1936) 55 CLR 499 at [504]-[505].

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