s.365 - General protections

General protections dismissal dispute - whether certificate should be issued - whether binding settlement agreement reached - application dismissed

• [1] Amelia Dubern (Ms Dubern) has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Ms Dubern's allegations that she has been dismissed from her employment with the Victorian Government's Department of Justice and Community Safety (Department) in contravention of Part 3-1 of the FW Act.

• [2] Ms Dubern commenced employment with the Department on 6 March 2023 as a Senior Manager, Commercial & Legal within the Community Safety Building Authority.

• [3] Ms Dubern was notified on 10 May 2023 that her employment was being terminated effective 12 May 2023. The termination letter relevantly states:

"The basis for the recommendation for the termination of your employment is that during your probationary period, performance issues were identified and when Mr Sleeman made attempts to meet with you to discuss these concerns, on numerous occasions, you declined these meetings, notably the most recent meeting scheduled on 4 May 2023."

• [4] Ms Dubern filed a Form F8 application with the Commission on 30 May 2023.

• [5] On 28 June 2023, the Department filed a Form F8A response. The response did not identify any jurisdictional objections to the application.

• [6] On 19 July 2023, I conducted a conciliation conference in relation to Ms Dubern's application pursuant to s.368 of the FW Act. Ms Dubern represented herself and the Department was represented by Cameron Golden-Cooper (Principal Industrial Relations Adviser).

• [7] The parties did not reach agreement during the conference on 19 July 2023. However, the Department agreed to leave its final offer open until the end of the week. I indicated I would not issue a certificate pursuant to s.368(3) of the FW Act until my chambers was advised whether the offer had been accepted.

• [8] On 21 July 2023, Ms Dubern wrote to the Department, via my chambers, in the following terms:

"I refer to the Conference in the above matter that took place this week, and to the 'final offer' made by the Respondent, that was held open until today.

I confirm the Respondent's offer, of 6 weeks pay, but without any change from termination to resignation, is rejected.

In light of an agreed settlement amount being very close, I reiterate my final offer made at the Conference, that in view of the Respondent maintaining the status of my cessation of employment as being termination, I am prepared to settle on the Respondent's terms but with 8 weeks pay (which corresponds to the ordinary pay I would have received up to today's date).

I am prepared to keep this offer open for another week (ie. until next Friday 28 July 2023) in order to facilitate a timely and final settlement of this claim. If the Commission and the Respondent are agreeable to this proposal, and there is still no agreement between the parties by next Friday 28 July 2023, a Certificate may be issued.

I am happy for this email to be forwarded to the Respondents representative at DJCS."

• [9] On 26 July 2023, Mr Golden-Cooper responded on behalf of the Department in the following terms:

"The Respondent has considered the Applicant's offer and agrees to the amount of eight weeks' pay and the statement of service to resolve the dispute.

Ms Dubern - I will forward across a settlement agreement with the agreed settlement terms and other standard terms shortly."

• [10] On 28 July 2023, Mr Golden-Cooper wrote to Ms Dubern in the following terms:

"Please see attached agreement containing the agreed terms of settlement, including discontinuance of the application, paying you $23,451.48, equivalent to 8 weeks' pay, and providing you with a statement of service (silent as to the reason for cessation of employment).

Pursuant to clause 4, please provide a copy of the executed agreement in due course. Upon receipt of this, we will commence complying with the settlement terms and provide you with a signed copy of the agreement."[1]

• [11] The Department filed a copy of the proposed settlement agreement as part of the proceedings.[2] The settlement agreement includes the following terms:

(i) "Without any admissions as to liability, the Applicant and the Respondent agree to fully settle the matter on these terms (Agreement): ..."

(ii) Ms Dubern will discontinue her application within seven days of executing the settlement agreement and will provide proof of the discontinuance to Mr Golden-Cooper.

(iii) The Department will pay Ms Dubern the amount of $23,451.48 gross, and provide a statement of service silent as to the reason for dismissal, within 14 days of the later event out of the following:

(a) Ms Dubern providing the Department with a signed copy of the settlement agreement; and

The remaining terms in the settlement agreement are reasonably standard release, bar from further proceedings, confidentiality, non-disparagement and execution in counterpart provisions.

• [12] On 1 August 2023, Mr Golden-Cooper sent a follow-up email to Ms Dubern which relevantly stated:

"Can you please confirm if you received my email below sent on 28 July 2023?

We would also appreciate an update on whether you intend to execute the attached settlement agreement in due course."[3]

• [13] Later on 1 August 2023, Ms Dubern replied to Mr Golden-Cooper in the following relevant terms:

"Yes, I agree to the Deed, and I am in the process of signing and returning. My scanner is currently not operating, but as soon as I can provide an alternative to return the signed copy, if (sic) will forward to you."

• [14] Mr Golden-Cooper and Ms Dubern then exchanged emails on 7, 9, 15 and 16 August 2023 regarding the return of the Department's property by Ms Dubern and arrangements for Ms Dubern to attend the Department's office to sign the settlement agreement.[4]

• [15] On 18 August 2023, Mr Golden-Cooper initially emailed Ms Dubern at 9:49am asking what time she would attend the office to sign the settlement agreement, as had been agreed in previous emails.

• [16] Ms Dubern responded at 11:24am on 18 August 2023 and indicated she was planning to be there at 2pm. Ms Dubern then stated:

"Quick question, in the meantime, does the final payout include super, which is usually on top of the nominated salary rate? If not, can this be added to the agreement and reprinted, and I will sign when I come in?"[5]

• [17] Mr Golden-Cooper then replied at 11:48am and relevantly stated:

"Just confirming that super is not included. The deed includes all of the settlement terms."

• [18] Ms Dubern then replied at 11:55am and relevantly stated:

"My intent behind '8 weeks' offer, included the benefit of super for that period. Can the figure be adjusted to include that amount please?"

• [19] Mr Golden-Cooper replied at 12:03pm and relevantly stated:

"We had no knowledge of an intention to additionally include as a settlement term the payment of superannuation on the $23,451.48 (gross) prior to this date.

The current settlement terms have been approved by the delegate and will not be changed."

• [20] Ms Dubern ended the email exchange on 18 August 2023 at 12:20pm in the following relevant terms:

"The offer made on 21 July 2023 was 'I am prepared to settle on the Respondent's terms, but with 8 weeks pay... and while this offer did not specify how any super or tax treatment, the intention was to have the benefit of 8 weeks work at DJCS. Can you please seek the Delegates (sic) approval, to adjust the final figure to include a nominal amount in lieu of superannuation?

I will await your response, and defer coming in to the CBD, pending a positive response."

• [21] On 22 August 2023, Mr Golden-Cooper wrote to my chambers indicating: "we have hit a small bump in the road to settling this dispute." Mr Golden-Cooper provided a summary of the issue that had emerged between the parties and enquired whether the Commission could clarify with Ms Dubern that financial settlement negotiations do not normally include superannuation.

• [22] Later in the day on 22 August 2023, my associate responded to both parties and provided a link to an Australian Taxation Office superannuation guarantee ruling (SGR2009/2) regarding superannuation on termination payments.

• [23] On 1 September 2023, Mr Golden-Cooper wrote to Ms Dubern and relevantly stated:

"Can you please confirm your intentions with respect to the execution of the deed sent via email on 28 July 2023 and more recently via post? We are getting to a point where we would like to know next steps with this matter, either closing it off via the execution of the deed or the FWC issuing a certificate that the matter was not resolved via conciliation."[6]

• [24] On 5 September 2023, Mr Golden-Cooper wrote to my chambers and relevantly stated:

"Can you please discuss with the Commissioner steps to close this matter off at your end, so that we can one way or another progress this? It doesn't seem like there is any benefit to keeping the matter open as negotiations have stalled. We are of the view that agreement was reached as to the settlement terms but to date the deed has not been executed by the Applicant. If the Commissioner decides to issue a certificate that the dispute remains unresolved we will accept that decision."

• [25] Later in the day on 5 September 2023, the parties were advised by my associate that the matter would be listed for report-back on 8 September 2023.

• [26] On 6 September 2023, Ms Dubern responded to Mr Golden-Cooper. Ms Dubern attached an amended PDF version of the settlement agreement[7] in which Ms Dubern had changed the payment figure from $23,451.48 to $25,796.62 to reflect a "10% notional value of superannuation." Ms Dubern went on to indicate she had not noticed that superannuation had not been included in the proposed payment figure "when checking the precise details of the terms before signing". Ms Dubern explained that she had always intended that the reference to "8 weeks pay" would include superannuation and noted that the difference between the two amounts is very small.[8]

• [27] A report-back was held via video on 8 September 2023. Ms Dubern represented herself and Mr Golden-Cooper continued representing the Department. The report-back ended on the basis that Ms Dubern would consider her position and advise my chambers within seven days.

• [28] On 14 September 2023, Ms Dubern emailed my chambers and indicated the matter had not resolved and requested that her application be listed for hearing.

• [29] Later in the day on 14 September 2023, my associate indicated the next step in the process would be the issuing of a certificate pursuant to s.368(3) of the FW Act indicating all reasonable attempts to resolve the matter have been unsuccessful.

• [30] Later in the day on 14 September 2023, Ms Dubern responded and requested that I issue a certificate in relation to her application.

• [31] On 15 September 2023, Mr Golden-Cooper emailed my chambers. The email relevantly stated:

"I note that in order for a certificate to be issued pursuant to s368(3) that the 'FWC must be satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful'.

The Respondent's position which was outlined in our subsequent conciliation on 8 September 2023 is that agreement was reached as to the terms of settlement in the matter of C2023/3126.

Accordingly we request the Commissioner give consideration to whether he the requirements of s368(3) of the FW Act have been met prior to issuing a certificate."

The email also referred to the following two cases as examples of where the Commission has declined to issue a certificate because an agreement has been reached: Mccaffrey v Transdev Melbourne [2015] FWC 3400 (27 May 2015); Chris AKA Christopher Lawless v Australasian Association of Philosophy [2021] FWC 2832 (21 May 2021).

• [32] Given the Department's position, I issued directions for the filing of submissions regarding whether a certificate should be issued and listed that issue for hearing via video on 30 October 2023.

• [33] Ms Dubern represented herself at the hearing via video on 30 October 2023 and Mr Golden-Cooper represented the Department.

• [34] The Department filed an outline of submissions dated 22 September 2023 in support of its position that a certificate should not be issued because the parties had reached a binding agreement to resolve the matter. The submission contained eight attachments. The first seven of these comprised emails exchanged between the parties and the proposed settlement agreements. These documents are all referred to above. The final attachment was Ms Dubern's resume.

• [35] Ms Dubern filed a submission in response to the Department's submission dated 6 October 2023. The submission contained four attachments comprising correspondence exchanged between the parties. The correspondence is all referred to above.

• [36] Section 368(3) deals with the issuing of a certificate by the Commission in relation to an application made under s.365 of the FW Act. The sub-section reads:

If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

(a) the FWC must issue a certificate to that effect; and

(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

• [37] Given the Department's position is effectively that no further steps can be taken in relation to Ms Dubern's application because a binding settlement agreement was reached, s.587 of the FW Act, which deals with the Commission's power to dismiss applications, is also potentially relevant to this case. Section 587 of the FW Act states:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

• [38] A Full Bench of the Commission has previously determined an application under s.365 of the FW Act can be dismissed pursuant to the general power in s.587(1) on the basis that the underlying dispute has been extinguished by a settlement agreement after the application was made.[9] Alternatively, the Commission can utilise its implied power to decline to act on an application where it fails for want of jurisdiction.[10]

• [39] The issue that needs to be determined in this case is whether a binding contractual agreement was reached between Ms Dubern and the Department following the conciliation conference I conducted on 19 July 2023 to resolve Ms Dubern's general protections dispute.

• [40] A Full Bench of the Commission provided the following summary of the legal principles in relation to offer and acceptance of a settlement proposal in Subeg Singh v Sydney Trains:[11]

"The central issue in this appeal requires consideration of whether the Deputy President correctly applied legal principles relevant to the question of whether a binding settlement agreement had been reached between Mr Singh and Sydney Trains.

Chief Justice Bathurst of the New South Wales Supreme Court explained the relevant principles concerning intention to create legal relations in the following way in Pavlovic v Universal Music Australia Pty Limited:[12]

"It is well established that the question of whether the parties intended to bind themselves to a contract is to be determined objectively, having regard to the intention disclosed by the language the parties have employed: Masters v Cameron [1954] HCA 72; 91 CLR 353 at 362. In cases such as the present, which do not depend on the construction of a single document, what is involved is the objective determination of the question from the communications between the parties in their context and the parties' dealings over the time leading up to the making of the alleged contract. This involves consideration of the subject matter of the communications: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550. As was said by Mahoney JA and McHugh JA in Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309, that includes consideration of what the parties said or wrote (at 334, 337)."

The present case does not involve complexities which often arise where contractual intention is inferred from behaviour, or is imputed.[13] Whether there was a legally binding settlement reached between Mr Singh and Sydney Trains involves interpretation of the express written communications between the parties' solicitors.

An offer and acceptance must precisely correspond. The following principles are relevant to this requirement:

• • An acceptance corresponds to an offer if it is an unequivocal acceptance of the terms offered.[14]

• • An acceptance is not an unequivocal acceptance of the terms offered if it deviates from the offer, even if that deviation is not material or important. However, as a qualification to this principle, if a new term is included in a purported acceptance of an offer and the new term is solely for the benefit of the offeror, then this can constitute a valid acceptance.[15]

• • An acceptance will be effective if it does not depart from the terms of the offer, but simply repeats in the offeree's own words the effect of the offer.[16]

• • Acceptance will be effective if it sets out expressly what would be implied by law in the absence of express agreement.[17] For example, an offer may contemplate that, were it to be accepted, a document would be prepared to record its terms. In proposing that a deed be prepared as part of an acceptance of such an offer, the offeree would be stating that which would be implied by law arising from the terms of the offer, namely, that it would be documented in some formal manner.[18]

• • Similarly, if a purported acceptance of an offer merely includes the "machinery of working out what was meant by the offer, it is on the same plight as a request for information".[19] Such a request for information does not revoke the offer and may constitute acceptance of the offer.

Ultimately the question is whether a "reasonable recipient of the acceptance would have regarded it as corresponding to the offer or whether they would have taken the acceptance to be qualifying the original offer such that it would amount to a counter-offer or, at any rate, not an unconditional acceptance of what was originally offered."[20] Put another way, the language used by the offeree in their acceptance of the offer must be such as would convey to a reasonable person in the position of the offeror a clear and definite decision by the offeree to be bound by the terms of the offer, leaving nothing further to be negotiated.[21]

A purported acceptance which does not correspond to the offer does not necessarily reject the first offer; it is, nevertheless, a counter-offer capable of acceptance.[22] A counter-offer accepted by the original offeror creates a binding agreement.[23]

Conduct of the parties after the making of the supposed agreement is relevant. Such conduct may be considered in order to determine whether the prior dealings between the parties gave rise to a binding contract.[24]

The phrase "'in principle' agreement" or similar is often used when negotiating the settlement of litigation and generally indicates that there is no intention yet to enter into a binding contract.[25] However, such words must be construed in the context in which they appear and the commercial setting in which the parties were operating.[26] In each case, "much will depend upon the individual circumstances of each case as to whether those words demonstrate that the parties had or had not reached a consensus on the essential terms of their bargain and whether they intended to be immediately bound by them".[27]

If parties who have been in negotiations reach agreement on terms of a contractual nature and also agree that those terms will be dealt with by subsequent formal documentation, there are several categories into which such negotiations fall.[28] First, the parties reach finality, intend to be immediately bound, and propose restatement of the terms of settlement in a fuller or more precise form but not different in effect. Secondly, the parties have completely agreed all terms but performance of one or more terms is conditional on execution of a formal document. Thirdly, the parties did not intend to make a concluded bargain at all, unless and until they execute a formal contract. Fourthly, the parties intended to be bound immediately and exclusively by agreed terms while expecting to make a further contract in substitution containing, by concept, additional terms.[29]

When parties do reach an agreement of the first or fourth category referred to in Masters v Cameron and Baulkham Hills, they will be bound by the terms of their bargain, notwithstanding a later disagreement between the parties about the terms to be included in a deed or written agreement between them."[30]

• [41] Having regard to these principles, I find the negotiations between Ms Dubern and the Department had the following legal effect:

(i) On 21 July 2023, Ms Dubern offered to resolve the matter "on the Respondent's terms but with 8 weeks pay (which corresponds to the ordinary pay I would have received up to today's date)." Ms Dubern prefaced that offer with the following statement: "I confirm the Respondent's offer, of 6 weeks pay, but without any change from termination to resignation, is rejected." I consider Ms Dubern's email is an offer to resolve the matter for 8 weeks of pay and with no conversion of the dismissal to a resignation.

• (ii) On 26 July 2023, the Department accepted Ms Dubern's offer of resolving the matter for "eight weeks' pay and the statement of service". However, I characterise the status of negotiations to be only an "agreement in principle" at this point. I say this because Mr Golden-Cooper's email states: "I will forward across a settlement agreement with the agreed settlement terms and other standard terms shortly".[31] I do not consider the full settlement terms, including the proposed dollar value of eight weeks of pay, had sufficient legal certainty to be binding at this point.

• (iii) On 28 July 2023, the Department made a complete offer to resolve the dispute to Ms Dubern, which set out the dollar figure of $23,451.48. The complete offer was reflected in the proposed settlement agreement attached to Mr Golden-Cooper's email. Mr Golden-Cooper's email was framed in terms which suggested the settlement was already agreed, in that the email did not seek Ms Dubern's agreement to the terms, but rather asked her to "please provide a copy of the executed agreement in due course".[32] However, for the reasons outlined above, I consider the negotiations had not been finalised at this stage and that the Department was making a further and more detailed offer.

• (iv) On 1 August 2023, Mr Golden-Cooper sent an email to Ms Dubern following-up on whether Ms Dubern intended to execute the settlement agreement. This further clarifies that no binding agreement had been reached at this point.[33]

• (v) Later in the day on 1 August 2023, Ms Dubern responded and stated: "Yes, I agree to the Deed, and I am in the process of signing and returning. My scanner is currently not operating, but as soon as I can provide an alternative to return the signed copy, if (sic) will forward to you."[34] I consider this to be a clear and unambiguous acceptance by Ms Dubern of the Department's offer dated 28 July 2023, which clearly stated the amount payable by the Department was $23,451.48. When Ms Dubern sent this email, there had been an offer, acceptance, intention to create legal relations, consideration, certainty, and capacity. A binding contract was formed.

• [42] Ms Dubern argued during the hearing that her email was not sufficiently certain to constitute acceptance of the offer, and that she did not intend to create legal relations until she signed the settlement agreement. I accept that was her subjective understanding of the situation. However, I do not accept there is any doubt the language used in Ms Dubern's email would convey to a reasonable person a definite decision to be bound by the terms of the offer. That is the legal test, not Ms Dubern's subjective understanding or intent.

• [43] There are an array of words Ms Dubern could have included in her email sent on 1 August 2023 to convey that she was generally happy with the terms but needed a bit more time to check the calculations and other wording. There was no necessity for her to state in writing: "Yes, I agree to the Deed, and I am in the process of signing and returning". A reasonable person would not read these words as indicating Ms Dubern was still considering whether she was agreeing to the terms.

• [44] I accept Ms Dubern's argument that Mr Golden-Cooper's emails to her on 1 September 2023 and to the Commission on 5 September 2023 indicate he did not consider there was any impediment to the Commission issuing a certificate, despite the negotiations that had occurred, on the basis that the dispute was not resolved. Mr Golden-Cooper also stated: "negotiations have stalled". The authorities cited above also confirm conduct after the making of a supposed agreement can be relevant. However, I consider Mr Golden-Cooper's communications to be more fairly characterised as representing confusion about what should occur given the unusual situation, as opposed to indicating the Department did not consider a binding agreement had been reached. Further, Mr Golden-Cooper wrote to my chambers on 22 August 2022 and specifically stated: "The Respondent and Applicant reached an agreement to settle the dispute with the payment of a settlement sum of $23,451.48 (equivalent to 8 weeks' wages) and the statement of service." In addition, Mr Golden-Cooper wrote to Ms Dubern twice on 18 August 2023 in response to her additional request for the inclusion of a nominal payment for superannuation. Mr Golden-Cooper stated: "Just confirming that super is not included. The deed includes all of the settlement terms", and later: "The current settlement terms have been approved by the delegate and will not be changed".[35]

• [45] I also consider the wording in the settlement agreement to be consistent with the existence of a binding agreement when Ms Dubern agreed to the terms, as opposed to only being capable of being created when the agreement was executed. Clause 3 states: "Without any admissions as to liability, the Applicant and the Respondent agree to fully settle the matter on these terms (Agreement):". Although several other provisions refer to the signing of the settlement agreement, this is primarily as a trigger for the Department to make the agreed payment to Ms Dubern and to provide a statement of service. Nowhere in the terms does it state, for example, that the settlement agreement will take effect or commence operating when it has been signed by both parties. To the contrary, clause 15 refers to when "the signing is complete". This indicates signing is part of the settlement terms, as opposed to indicating it is the completion of the signing process that creates the binding agreement.

• [46] I accept Ms Dubern intended for superannuation to be included in the payment she negotiated with the Department. Unfortunately for Ms Dubern, her subjective intention is not the legal test.

• [47] I also considered Ms Dubern's application had some merit. The Department's conduct in relation to the imposition of a probationary period in circumstances whereby Ms Dubern was an existing public sector employee appeared questionable and it also appeared the Department could have acted more promptly and effectively to investigate Ms Dubern's complaints about her manager. The material did suggest the Department may have prioritised meetings and decisions about Ms Dubern's employment, over investigating her complaints about the manager. Perhaps all this is why the Department agreed to make a reasonably significant settlement payment to Ms Dubern.

• [48] I find Ms Dubern and the Department reached a binding contractual agreement to resolve Ms Dubern's general protections dispute on 1 August 2023.

• [49] As a result, I have determined to dismiss Ms Dubern's general protections application pursuant to s.587(1) of the FW Act because the dispute has been extinguished by a settlement agreement after the application was made.

• [50] In the alternative, I would order the dismissal of Ms Dubern's application using the implied power for the Commission to decline to act on an application where it fails for want of jurisdiction.

• [51] I think the practical consequence of this decision is the Department should proceed as if Ms Dubern has signed the settlement agreement and immediately arrange for the payment and statement of service to be provided. I say this because the term requiring Ms Dubern to file a notice of discontinuance is superfluous in circumstances whereby the application has been dismissed.

• [52] An order dismissing Ms Dubern's application pursuant to s.587(1) of the FW Act will be issued in conjunction with this decision.

[1] Attachment R2 to the Department's submissions dated 22 September 2023.

[2] Attachment R3 to the Department's submissions dated 22 September 2023.

[3] Attachment R4 to the Department's submissions dated 22 September 2023.

[4] Attachment R5 to the Department's submissions dated 22 September 2023.

[5] Attachment R5 to the Department's submissions dated 22 September 2023.

[6] Attachment R6 to the Department's submissions dated 22 September 2023.

[7] Attachment R7 to the Department's submissions dated 22 September 2023.

[8] Attachment R6 to the Department's submissions dated 22 September 2023.

[9] Bradley William Lewer v Australian Postal Corporation [2023] FWCFB 56 at [55].

[11] [2017] FWCFB 4562 at [45] to [54].

[12] [2015] NSWCA 313 (Pavlovic) at [15].

[13] See, for example, Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 (Brambles).

[14] Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32 (Redowood) at [84].

[15] Boreland v Docker [2007] NSWCA (Boreland) at [76]-[78].

[16] Boreland at [76]; Cavallari v Premier Refrigeration Co Pty Ltd [1952] HCA 26; (1952) 85 CLR 20 at 26-27.

[17] Brookfield Australia Investments Limited v Lucas Stuart Pty Limited [2012] NSWSC 1130 (Brookfield) at [34].

[19] Brookfield at [35], applying Howe v Connell [1997] NSWSC 432 and Stevenson v McLean (1880) 5 QBD 346.

[20] Redowood at [76], applying Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115.

[22] Capital Securities No. 1 Pty Ltd v Saliba [2016] NSWSC 1093 (Saliba) at [77].

[23] Evans Deakin Industries Ltd v Queensland Electricity Generating Board (1984) 1 BCL 334.

[24] Saliba at [53]-[54], applying B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 at 9149 per Glass JA.

[25] Stephenson v Dwyer [2006] NSWSC 1439 at [37].

[26] Donaldson Coal Pty Ltd v Pacific National (NSW) Pty Ltd [2007] NSWSC 1446 (Donaldson Coal) at [91].

[28] Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353.

[29] Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 (Baulkham Hills).

[30] Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1 at [10]-[12]; Howe v Connell [1997] NSWSC 432.

[31] Attachment R1 to the Department's submissions dated 22 September 2023.

[32] Attachment R2 to the Department's submissions dated 22 September 2023.

[33] Attachment R4 to the Department's submissions dated 22 September 2023.

[34] Attachment R4 to the Department's submissions dated 22 September 2023.

[35] Attachment R5 to the Department's submissions dated 22 September 2023.

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