Dec 1023/00 M Print S9280


Workplace Relations Act 1996

s.45 appeal against order Print S4968

issued by Senior Deputy President Acton on 12 May 2000

Fastidia Pty Ltd

(C No. 33477 of 2000)

s.170CE application for relief in respect of termination of employment

J B Goodwin


Fastidia Pty Ltd

(U No. 30272 of 2000)







Alleged unlawful termination - appeal - whether transmission of matter under s34 between hearing and determination at first instance warrants departure from traditional role of appeal bench in relation to findings of fact at first instance - procedural fairness - warnings - criterion for type of warning contemplated under s170CG(3)(d) - remedy - lost remuneration - calculation by reference to anticipated period of employment - whether discount for contingencies appropriate.



[1] This decision deals with an appeal by Fastidia Pty Ltd (Fastidia) against an order made by Senior Deputy President Acton on 12 May 2000 (Print S4968). The order arose out of an application for relief filed by Mr John Goodwin in respect of the termination of his employment. In the decision which led to the making of the order subject to appeal, her Honour found that the termination of Mr Goodwin's employment was harsh, unjust or unreasonable. In relation to remedy Acton SDP concluded that reinstatement was inappropriate and decided to make an order requiring Fastidia to pay Mr Goodwin an amount in lieu of reinstatement. The order subject to appeal is in the following terms:

[2] The background to this matter is set out in the decision of Acton SDP of 12 May 2000 (Print S4581). We note that Mr Goodwin commenced employment with Fastidia as labourer on 9 September 1998. On 8 January 1999 Mr Goodwin was given one weeks notice of the termination of his employment and he last worked for Fastidia on 12 January 1999.

[3] Mr Goodwin's application for relief was heard by Commissioner Frawley. On the death of the Commissioner the President appointed Acton SDP to determine the matter pursuant to s.34 of the Workplace Relations Act 1996 (the WR Act).

[4] In her decision Acton SDP found that:

[5] Pursuant to s.170CG(3)(e) her Honour also had regard to the fact that "Mr Goodwin was not told his employment was being terminated until just after the conclusion of his probationary period of employment because Fastidia did not want to cause any hardship or grief over the festive season of 1998/99"1.

[6] A number of the above findings are challenged on appeal.

Preliminary Points

[7] Before we turn to examine the grounds advanced in support of the appeal we propose to deal with two preliminary points. The first concerns the appellants application pursuant to Rule 11(2) for an extension of the time period within which the appeal was to be instituted.

[8] Rule 11(2) relevantly provides that an appeal must be instituted before the end of 21 days after the date of the order appealed against. In this case the date of the order was 12 May 2000. The 21 day period prescribed in Rule 11(2) expired on 2 June 2000. On that day the appellant's solicitors wrote to the Commission indicating that:

[9] The transcript of the proceedings below was received by the appellant on 30 May 2000 and instructions to institute the appeal were given on 2 June 2000. The appeal was sent to the Registry by ordinary post under cover of a letter dated 8 June 2000. The letter was received in the Registry on 14 June 2000. The appeal was instituted some 12 days out of time.

[10] The appellant bears the onus of persuading the Commission to extend the 21 day period prescribed in Rule 11(2). In exercising the discretion to extend the time prescribed the Commission will have regard to: "whether there is a satisfactory reason for the delay, the length of the delay, the nature of the grounds of appeal and the likelihood of one or more of those grounds being upheld if time was to be extended."2 Any prejudice the respondent might suffer, if time were extended because of developments after the time for lodgement had expired, is also relevant.3

[11] The appellant submits that in the circumstances of this case we should exercise our discretion in favour of the extension sought. At paragraphs 41 and 42 of the written submission filed in support of the appeal the appellant says:

[12] The respondent opposes the extension sought. It submitted that there is no evidence before the Commission as to why there were such difficulties in obtaining transcript and instructions. To the extent that there were such difficulties it was argued that the appellant has failed to explain why the Applicant was not informed of the intention to institute an appeal until 2 June 2000 or why it took a further six days for the appeal to be filed. The respondent did not contend that it was prejudiced by the delay, but did rely on the appellant's failure to comply with Rule 11(5)(a) in a timely manner and the delay in the implementation of an agreement between the parties arising from the stay of the order subject to appeal.

[13] We are somewhat surprised that, although the appellant's solicitors had, at least by the last day upon which a notice of appeal could have been lodged, received instructions to appeal, a choice was made not to do so at that time in favour of notifying the Commission and the respondent that it was their client's intention to lodge an appeal. We are even more surprised that, despite the fact that the appeal was being lodged out of time, it was lodged by ordinary mail. However, the circumstances are unusual in that, due to the death of Commissioner Frawley, there was a significant delay between the hearing of the matter at first instance and the decision. Further, the length of the delay was modest and the respondent was not prejudiced because of developments after the time for lodgement had expired. We are, therefore, prepared, albeit with some reluctance, to exercise our discretion and grant an extension of time for the lodging of the notice of appeal.

[14] The second preliminary point concerns the approach to be taken to the determination of the appeal. The appellant submits that the fact that the matter was determined pursuant to s.34 warrants a departure from the traditional role of an Appeal Bench in relation to findings of fact by a member at first instance. At paragraphs 8 and 9 of the written submission filed in support of the appeal the appellant says:

[15] It is common ground that the order subject to appeal arose out of the exercise of a discretion. The nature of the appellate jurisdiction of the Commission in respect of appeals against the exercise of a discretionary power was recently considered by a Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v Giudice6. In that case the Court held:

[16] In relation to the question of leave to appeal the Court said:

[17] We also note that in Norbis v Norbis, Mason and Deane JJ, having categorised the order in that case as discretionary because it depended on the application of a very general standard, said:

[18] In determining an appeal the Commission would usually be very reluctant to reverse a finding of fact 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.10 In the circumstances of this case, as pointed out by the appellant, the Senior Deputy President enjoyed no special advantage as she did not hear the relevant evidence but simply determined that matter on the basis of the exhibits and transcript of the proceedings before Frawley C. It is possible that the Commission's traditional reluctance to reverse a first finding of fact may not apply with the same force. But, if so, what is the test to be applied?

[19] We were not taken to any authority dealing with the approach to be taken by an appeal bench in determining challenges to findings of fact made pursuant to the procedure in s.34 of the WR Act. But it is relevant to note that in a number of cases - including Whiteley Muir and Zwanenberg Ltd v Kerr11; Da Costa v Cockburn Salvage & Trading Pty Ltd12 and Edwards v Noble13 - Barwick CJ expressed the view that even where an appellate court was authorised to substitute its view of the facts for that reached by the trial judge, there being no relevant restraint of witness credibility or demeanour, it should not do so if the findings made by the trial judge were "reasonably open on the evidence"14. The situation referred to by Barwick CJ is relevantly indistinguishable from the circumstances before us, there being no relevant constraint of witness credibility or demeanour. But does it follow that we should only disturb her Honour's findings of fact if we are satisfied that they were not "reasonably open on the evidence"? The views of Barwick CJ referred to above had been rejected at the time by Walsh J15 and were ultimately rejected by the High Court in Warren v Coombs16. In that case the majority, per Gibbs ACJ, Jacobs and Murphy JJ, said:

[20] The determination of this question should await a case in which it has been more fully debated. From an abundance of caution, however, we have been prepared to apply the above observation from Warren v Coombs to the resolution of the matter before us. It follows that, in the particular circumstances of this case, if we think that a finding of fact challenged on appeal was wrong, we would give effect to our own judgment. In the final analysis, we have concluded that the challenged findings were both reasonably open and correct.

Grounds of Appeal

[21] The grounds of appeal challenge three aspects of her Honour's decision:

[22] We propose to deal with each of these aspects of the appeal in turn.

Procedural Fairness Issues

[23] The thrust of the appellant's challenge under this heading related to the way in which her Honour dealt with the question of whether Mr Goodwin had received any warnings in the course of his employment with Fastidia. In this regard s.170CG(3)(d) states that in determining whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:

[24] In the proceedings at first instance the question of whether Mr Goodwin had been warned about unsatisfactory performance was contested. Acton SDP dealt with this issue and the relevant evidence at paragraphs 74-84 of her decision of 12 May 2000:

[25] The appellant challenges her Honour's conclusions under s.170CG(3)(d). There are two bases to the challenge:

[26] The first point advanced is that Acton SDP failed to give effect to the principles outlined by Wilcox CJ in Gibson v Bosmac Pty Ltd. In that case his Honour said:

[27] The appellant contended that the principles set out by Wilcox CJ had particular application where warnings are being conveyed to an employee who has only recently been engaged and is serving a period of probationary employment. In this context it is contended that comments such as those described by Mr Hazelhoff in his evidence were sufficient to put Mr Goodwin on notice that his continued employment was in jeopardy.

[28] In our view this submission is misconceived. In Gibson v Bosmac Pty Ltd Wilcox CJ was not dealing with the question of what constituted a warning within the contemplation of s.170CG(3)(d) of the WR Act, he was interpreting s.170DC of the Industrial Relations Act 1988. Section 170DC of that Act is in quite different terms to s.170CG(3)(d) of the WR Act, it states:

[29] Section 170DC contains some of the elements of what now appears in s.170CG(3)(b) and (c). It does not purport to deal directly with the issue of whether an employee had received a warning about unsatisfactory performance in circumstances where the termination of their employment related to unsatisfactory performance.

[30] Later in this decision we deal with the criterion associated with a warning of the type contemplated by s.170CG(3)(d). Contrary to the appellant's submission we do not think that the relevant criterion should vary simply because the employee was on probation at the relevant time.

[31] The second basis for the appellant's challenge relates to her Honour's assessment of the witness evidence. In this regard it was submitted that as her Honour did not have the advantage of assessing the veracity of the witnesses giving viva voce evidence it was not reasonably open to her to attach no weight to the evidence of Messrs Carter, McCarthy and Shallies. In this context the appellant acknowledges that none of these witnesses were in a position to wholly corroborate the evidence of Mr Hazelhoff. But it is argued that in the context of the conflict between the evidence of Messrs Goodwin and Hazelhoff, the evidence of these witnesses was not without weight. To the extent that these witnesses observed warnings being given to Mr Goodwin their evidence was said to be significant, even if their ability to comment on the precise words used was limited.

[32] It is apparent from the transcript and exhibits in the proceedings at first instance that there is a conflict between the evidence of Mr Hazelhoff and Mr Goodwin regarding the issuing of warnings. According to Mr Hazelhoff he gave Mr Goodwin an "official warning" on one occasion and an "unofficial warning" on another occasion. The circumstances relating to the "official warning" are set out in Mr Hazelhoff's evidence in the following terms:

[33] Mr Hazelhoff was unable to recall the date the above incident took place, he presumed it was in early October 1998.20 Nothing was put in writing about the incident.21

[34] On another occasion Mr Hazelhoff said that he gave Mr Goodwin an "unofficial warning":

[35] In his evidence Mr Goodwin denied receiving any warnings about his work performance.23

[36] In her decision Acton SDP concluded:

[37] In the unusual circumstances of this case the question for us is whether her Honour's findings were correct. We have reviewed the evidence and we accept Mr Hazelhoff's testimony in relation to the "official" and "unofficial" warnings.

[38] During the course of oral argument Mr Gray, counsel for the respondent, sought to attack the credibility of Mr Hazelhoff's evidence. The basis of this attack was that in his witness statement Mr Hazelhoff said that Mr McCarthy was present when he gave the "official warning" to Mr Goodwin.24 When giving his oral testimony about the circumstances in which this "warning" was given Mr Hazelhoff did not mention Mr McCarthy's presence at the relevant time. This omission was said to be inconsistent with his witness statement and brought his credit worthiness into question. We reject this proposition. Later in his evidence Mr Hazelhoff was asked if the "warning" was given in Mr McCarthy's presence, he replied "Everybody was there."25 In our view this response was consistent with his witness statement.

[39] We note that in his witness statement Mr Hazelhoff refers to a second warning and "other warnings in the presence of other workers"26. We have already dealt with the second warning - referred to as the "unofficial warning" in Mr Hazelhoff's oral testimony. The "other warnings" referred to in his witness statement were not the subject of any elaboration in the course of Mr Hazelhoff's oral testimony. In our view there is no sound evidentiary basis for concluding that Mr Goodwin was given any warnings other than the two we have referred to.

[40] During the course of oral argument Mr O'Grady, counsel for the appellant, contended that the evidence of Messrs Carter, McCarthy and Shallies supported a finding that Mr Goodwin had in fact received other warnings. We disagree. The evidence of each of these witnesses on this point can be summarised thus:

Mr McCarthy

- only heard Mr Hazelhoff giving Mr Goodwin a warning on one occasion27;

- the warning which he gave evidence about was the "official" warning referred to in Mr Hazelhoff's evidence28;

- he only heard the last part of the conversation between Messrs Hazelhoff and Goodwin. He could not recall exactly what was said but the final words were "That this is a warning", or words to that effect29;

- he had no recollection of the time of day or even the month during which the incident took place. He could recall that it occurred inside the shed because it was a wet day and where he was standing at the relevant time30.

Mr Shallies

- he witnessed a conversation between Messrs Hazelhoff and Goodwin;

- at the time he was some six metres away and he could not hear what was said31.

Mr Carter

- did not personally issue any warnings to Mr Goodwin32;

- was not present when Mr Hazelhoff gave warnings to Mr Goodwin33.

[41] In our view the evidence of Messrs Shallies and Carter is of no assistance on this point. Mr McCarthy provides some corroboration of Mr Hazelhoff's evidence regarding the "official warning". But there is a difference between the evidence of these two witnesses. Mr McCarthy says that the word "warning" was used. In his account of the incident Mr Hazelhoff does not say that he used this word. We prefer Mr Hazelhoff's evidence on this point - he was the one directly involved and Mr McCarthy seemed to have difficulty recalling when the incident took place, indeed he said that he had "no idea whatsoever".34

[42] As we have indicated, we accept that Mr Hazelhoff gave Mr Goodwin the "official" and "unofficial warnings" referred to in his testimony. Were they warnings of the type contemplated by s.170CG(3)(d)?

[43] In the context of s.170CG(3)(d) we think that a warning must:

- identify the relevant aspect of the employee's performance which is of concern to the employer; and

- make it clear that the employee's employment is at risk unless the performance issue identified is addressed.

[44] In relation to the latter requirement, a mere exhortation for the employee to improve his or her performance would not be sufficient. We also note that we accept that these criterion are to be applied in a practical and commonsense way taking into account the employment context.

[45] Applying these criterion to the two "warnings" here it is apparent that the "unofficial warning" is not a warning of the type contemplated by s.170CG(3)(d). It does not make it clear that Mr Goodwin's employment was at risk. The "official warning" does not suffer from the same defect. It is a warning of the type contemplated by s.170CG(3)(d).

[46] Our conclusion that Mr Goodwin was only given one warning of the type contemplated by s.170CG(3)(d) is consistent with Mr Goodwin's reaction when told of his termination. According to Mr Hazelhoff, Mr Goodwin seemed "shocked" and "stunned"35. Mr Hazelhoff presumed that Mr Goodwin reacted in this way because the decision had come as a surprise to him.36

[47] Acton SDP concluded that Mr Goodwin had not been warned about the unsatisfactory performance which was related to the termination of his employment. The "official warning" did not satisfy the requirements of s.170CG(3)(d) because it only dealt with one of the performance matters which led to Mr Goodwin's termination.

[48] Her Honour's conclusion in respect of the "official warning" is based on the following analysis of s.170CG(3)(d):

[49] Earlier in her decision Acton SDP had found that:

[50] Having regard to these findings, in combination, her Honour was satisfied that there was a valid reason for terminating Mr Goodwin's employment relating to his capacity or conduct. Her Honour found that Mr Goodwin was only warned once and only in relation to the first matter.

[51] We see the force in the approach adopted by her Honour to the construction of s.170CG(3)(d), but that approach was not the subject of submissions on appeal. Unless compelled to do so we are reluctant to determine this point in the absence of submissions. We have concluded that it is not necessary for us to determine this issue in order to determine the appeal. It is apparent from her Honour's decision that she found that Mr Goodwin had received one warning in respect of one of the performance matters which led to his termination. He was not warned about the other unsatisfactory performance issues which her Honour found had contributed to there being a valid reason for his termination. We agree with these findings for the reasons we have given. Acton SDP had regard to these findings in deciding that the termination of Mr Goodwin's employment was harsh, unjust or unreasonable. In our view this approach does not disclose an error warranting correction on appeal.

[52] The final point advanced by the appellant in relation to the issue of procedural fairness was put in the following terms:

[53] The essence of this submission is that Acton SDP's discretion miscarried because her Honour:

[54] We do not accept the argument advanced by the appellant. In our view her Honour's conclusion that the termination of Mr Goodwin's employment was "harsh, unjust or unreasonable" was reasonably open to her. In this regard we note that the appellant does not challenge her Honour's findings pursuant to s.170CG(3)(b) and (c).

Issues of Credit

[55] The essence of the appellant's submissions relating to the issue of credit is the proposition that in the proceedings below Acton SDP preferred the evidence of the respondent's witnesses to that of Mr Goodwin in respect of a number of the matters in issue. On this basis it is contended that the credibility of Mr Goodwin's evidence was impugned generally and her Honour erred in relying on his evidence in determining the question of remedy.

[56] It is apparent from her Honour's decision that in relation to a number of issues the evidence of other witnesses was preferred to that of Mr Goodwin. The following findings made by her Honour are relevant in this regard:

[57] In our view these findings do not warrant a general rejection of Mr Goodwin's evidence. But for the finding relating to the warnings given to Mr Goodwin, each finding is based on the uncontested evidence of other witnesses. In relation to the warnings issue we note our earlier finding that the word "warning" was not used by Mr Hazelhoff when he delivered what we have referred to as the "official" and "unofficial" warnings. Mr Goodwin denied that he had ever been given a warning. The only "warning" which was a warning of the type contemplated by s.170CG(3)(d) was the "official warning" given in early October. Mr Goodwin's denial is explicable on the basis of either the passage of time or the fact that he did not regard the relevant conversation as a warning. Support for the latter proposition is obtained from Mr Hazelhoff's evidence to the effect that Mr Goodwin appeared "shocked" and "stunned" when told of his termination. These reactions are consistent with Mr Goodwin's position that he had not been previously warned in relation to his performance.

[58] There is one further matter which counts against the acceptance of the appellant's proposition. At paragraph 30 of her decision Acton SDP says:

[59] The above finding was an instance where Acton SDP preferred the evidence of Messrs Goodwin and McCarthy to that of Messrs Hazelhoff and Shallies. It was not challenged on appeal.

[60] We do not think that there is any substance to the appellant's challenge on this point.


[61] The appellant challenges the approach taken by her Honour to a number of the matters arising under s.170CH(7). Subsection 170CH(7) is in the following terms:

[62] The appellant contends that:

[63] We deal with each of the matters in turn. In relation to the first point her Honour's conclusions are set out at paragraph 105 of her decision:

[64] As was noted in Ellawala v Australian Postal Corporation43 (Ellawala), lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. This period is referred to as the "anticipated period of their employment". Such an assessment is often difficult, but it must be done. As the Full Bench in Sprigg v Paul's Licensed Festival Supermarket said:

[65] In our view her Honour's conclusion that but for the termination of his employment Mr Goodwin would have been employed by Fastidia until at least 7 September 1999 was reasonably open on the evidence. If we were required to determine the matter for ourselves we would have found that Mr Goodwin's "anticipated period of employment" would only have been six months, rather than the eight months period determined by her Honour. But this difference of view would not have altered the amount awarded to Mr Goodwin because:

- lost remuneration would have been $11,845 gross, being $455.58 per week x 26 weeks;

- no deduction would have been made for monies earned since termination because Mr Goodwin did not obtain further employment until 24 July 1999 which is after the "anticipated period of employment"45;

- we would deduct $2277.90, being 5 weeks at $455.58 per week, pursuant to s.170CH(7)(d); and

- we would make no deduction for contingencies.

[66] In relation to mitigation and our deduction of $2277.90, we agree with her Honour's conclusions on this point as set out at paragraph 108 of her decision.

[67] In relation to the last point we note that a discount for contingencies is a means of taking account of the various probabilities which might otherwise affect earning capacity. At the time of hearing any such impact on an applicant's earning capacity between the date of termination and the hearing will be known. It will not be a matter of assessing prospective probabilities but of making a finding on the basis of whether the applicant's earning capacity has in fact been affected during the relevant period46. In this case the hearing took place in September 1999 eight months after termination. We would have found that but for the termination of his employment, Mr Goodwin would have been employed until 12 July 1999, that is for a further six months. In these circumstances it is not appropriate to make any deduction for contingencies.

[68] The application of the statutory cap would result in an order requiring Fastidia to pay Mr Goodwin $8,200.44 less applicable tax. Acton SDP reached the same conclusion in the proceedings below.

[69] The appellant's second contention was that Acton SDP failed to give any or any sufficient weight to the length of Mr Goodwin's service with Fastidia or to the fact that for 12 of the 18 weeks in which he was employed Mr Goodwin was serving a period of probation. Section 170CH(7)(b) requires the Commission to have regard to the "length of the employee's service with the employer" in determining the amount to be paid by the employer to the employee in lieu of reinstatement. Acton SDP dealt with this issue at paragraph 111 of her decision:

[70] The Senior Deputy President had regard to the length of Mr Goodwin's service with Fastidia but decided not to reduce the amount to be awarded in lieu of reinstatement as a consequence. In our view her Honour's conclusion on this point was reasonably open to her. Further, assuming that Mr Goodwin was engaged on the basis of a three month probation period, we have not been persuaded that such a circumstance would warrant any reduction in the amount to be awarded in lieu of reinstatement.

[71] The appellant's last contention was that her Honour had failed to give any or any sufficient weight to the fact that the decision to terminate Mr Goodwin's employment had been made during the currency of his probationary period but was not implemented until 8 January 1999. In our view this contention is devoid of merit. We make two points in this regard.

[72] First, the fact upon which the contention is prescribed has not been established. On the appellant's case in the proceedings below Mr Goodwin's probationary period would have expired on 9 December 1998. Mr Carter, the Managing Director of Fastidia, gave evidence as to when the decision to terminate Mr Goodwin's employment was made. At paragraph 6 of his witness statement Mr Carter says:

[73] During the course of his oral testimony Mr Carter was questioned about this part of his statement and he said:

[74] In our view Mr Carter's evidence does not support the appellant's contention that the decision to terminate Mr Goodwin's employment was taken prior to the expiration of his period of probation on 9 December. Mr Carter's evidence is that this decision was taken either at or just before the commencement of the Christmas holiday period. We were not taken to any other evidence which might have supported the appellant's contention on this point.

[75] Second, the appellant says that Acton SDP should have regarded the timing of the decision to terminate Mr Goodwin's employment and the implementation of that decision as a relevant matter within the context of s.170CH(7)(e). Had it been so regarded her Honour would have been obliged to take it into account in determining the amount to be awarded in lieu of reinstatement. The difficulty for the appellant is that this proposition was never advanced in the proceedings below. We fail to see how the failure to regard a matter as relevant pursuant to s.170CH(7)(e) can give rise to an error warranting correction on appeal in circumstances where the appellant was represented by counsel in the proceedings at first instance and yet failed to even advance the point now relied on. It is not the function of the appeal process to provide an avenue for unsuccessful parties to seek to redress deficiencies in this manner in which their case was run in the proceedings at first instance.

[76] We are not satisfied that the appellant has established an arguable case that Acton SDP made an error warranting correction on appeal. Leave to appeal is refused and we dismiss the appeal. The stay order issued by consent on 20 June 2000 [Print S7250] is set aside.




C. O'Grady of counsel for the appellant.

J. Gray of counsel for the respondent.

Hearing details:



August 14.

Printed by authority of the Commonwealth Government Printer

<Price code F>

1 Print S4581 at paragraph 86.

2 Re Advanced Australian Workplace Solutions Pty Ltd, unreported, Print S0253, 25 October 1999 per Giudice J, McIntyre VP and Redmond C.

3 T. Symonds v HY Ting and Sons, unreported, Print S8497, 25 July 2000 per Watson SDP, Acton SDP and Gay C.

4 Exhibit A1.

5 Exhibit A1.

6 (1998) 159 ALR 1.

7 Ibid at 28 and 32.

8 Ibid at 20

9 (1986) 161 CLR 513 at pp 518-9.

10 Rode v Burwood Mitsubishi, Print R4471, 11 May 1999 per Ross VP, Polites SDP and Foggo C; Tenix Defence Systems Pty Ltd v Fearnely, Print S6238, 22 May 2000 per Ross VP, Polites SDP and Smith C.

11 (1996) 39 ALJR 505 at 506.

12 (1970) 124 CLR 192 at 199.

13 (1971) 125 CLR 296 at 307.

14 Edwards v Noble (1971) 125 CLR 296 at 304.

15 Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192.

16 (1979) 142 CLR 531.

17 (1979) 142 CLR 531 at 552.

18 (1995) 60 IR 1.

19 Transcript, 7 September 1999, p.38 at lines 9-23.

20 Transcript, 7 September 1999, p.45 at lines 16-21.

21 Ibid at line 31.

22 Transcript, 7 September 1999, p.38 at lines 24-35 and p.39 at lines 1-7.

23 Transcript, 7 September 1999, p.10 at lines 1-7.

24 See exhibit Mc 2 at paragraph 4.

25 Transcript, 7 September 1999, p.45 at lines 26-27.

26 Exhibit Mc 2 at paragraph 5.

27 Transcript, 7 September 1999, p.49 at lines 17-19.

28 Ibid, p.45 at lines 26-27.

29 Ibid, p.49 at lines 22-26 and p.53 at lines 27-31.

30 Ibid at pps. 54-55.

31 Ibid p.65 at lines 3-14 and p.69 at lines 1-7.

32 Ibid p.80 at line 3.

33 Ibid p.81 at lines 20-23.

34 Ibid p.54 at lines 8-10.

35 Transcript, 7 September 1999, p.40 at lines 3-5.

36 Ibid p.46 at lines 5-10.

37 Print S4581 at paragraphs 82 and 83.

38 Exhibit A1 at paragraph 28.

39 Print S4581 at paragraphs 20-21.

40 Ibid at paragraph 22.

41 Ibid at paragraph 31.

42 Ibid at paragraphs 47-48.

43 Print S5109, 17 April 2000, per Ross VP, Williams SDP and Gay C

44 (1998) 88 IR 21 at 32

45 See Ellawalla, Print S5109 at paragraph 35.

46 Ibid at paragraphs 36-43.

47 See Exhibit Mc7.

48 Transcript, 7 September 1999, p.81 at lines 34-37.