The Plaintiff Mathew Grech has by Notice of Motion filed on 30 May 2014 moved the court to maintain proceedings brought in this matter pursuant to section 151 D of the Workers Compensation Act 1987.
The matter concerns an alleged work injury of 1 April 2004 in which the Plaintiff whilst working for the Defendant in said to have pulled some cables within a Telstra pit in the Penrith area so as to " remove elevated joints and cable junctions from above ground posts and transferring them to in ground concrete pits". The Plaintiff alleges that whilst carrying out the said work he sustained injury when a cable became stuck and he used great force from a position lying on the ground attempted to use both hands to pull out a cable.
At the time of the said injury the Plaintiff was 25 years of age. He deposed to stopping work taking some Nurofen and then being unable to continue. In those circumstances he called his brother who was the owner of the defendant company. [1]
On 15 August 2004 the Plaintiff lodged a workers' compensation claim form addressed to the defendant's insurer. [2] That form advised that the Plaintiff had notified Steven Paul Grech (his brother) of the injury on the same date at 11.30 am. It further advised that Dr Jonathon Chan was the Plaintiff's treating doctor.
On 1 March 2007 the Plaintiff states that surgery was performed, being "disc replacement surgery at L5/S1." [3]
Thereafter he deposes that he was off work for three months before returning to work for his brother (but not on full duties) until the end of 2007 when there were no suitable duties available to him. [4]
The Plaintiff next deposes that he came to see Brydens Lawyers in May 2008. By that stage the three-year time limit for bringing proceedings had already expired. [5]
The Plaintiff had not previously been involved in litigation of any kind and asserts he was not previously aware that he had "only three years to start a claim". He deposes that he had always thought that he would get better from his injury and would be able to return to full time work. It was when he found himself out of work and not getting better that he thought he should obtain some legal advice. The Plaintiff states that he recalls at the time "feeling awkward about suing my brother. I didn't like the idea and I was a bit embarrassed about. I still am." [6]
A letter from Brydens to the Plaintiff dated 4 June 2008 was annexed "B" to the Plaintiff's affidavit. That letter noted Ms Mortimer- Fox as the supervising solicitor with Ms Emma Perkins being responsible for the progression of the matter. The letter notes instructions for lump sum compensation / pain and suffering. At the conclusion of the letter it states:
"Work injury damages are paid in addition to your permanent impairment lump sums. A claim for work injury damages must be made within three years of the date of injury. In some cases, that time limit may be extended.
We will review your matter once we have an assessment of your permanent impairment and advise you further about a work injury damages claim at that stage."
The matter thereafter progressed with the obtaining of a whole person impairment assessment from Dr Evans, which was in a report dated 13 August and received by Brydens on 29 August 2008. Dr Evans found 21% whole person impairment.
The plaintiff signed a Permanent Impairment Claim Form on 29 September 2008 and returned the same to Brydens' office. [7] On 30 September 2008 Ms Perkins directed a memorandum to Ms Mortimer-Fox asking her to review the matter for common law prospects noting that the limitation period had already passed. [8] Ms Jones indicates that Ms Mortimer-Fox resigned her employment and the resignation was effective in early 2009. Ms Jones further states that there is nothing in the file to suggest that any action was taken to review the common law aspect of the matter before the file was archived. [9] There is no evidence from Ms Mortimer-Fox or any explanation as to her whereabouts or whether she was approached to give evidence. Similarly there is no evidence from Ms Perkins or any indication of whether she was approached for this purpose.
The claim on the GIO was made on 2 October 2008 for s 66 and 67 lump sum compensation. A complying agreement was entered for 21% whole person impairment on 3 December 2008. A meeting took place at Brydens' offices on 3 December 2008. That meeting was apparently with Mr Lee Hadgipantelis. Mr Hadgipantelis wrote a letter to the Plaintiff on 4 December 2004 confirming the meeting the previous day. In the said letter Ms Perkins is again referred to as the person to whom enquiries were to be directed. There is no evidence as to whether Ms Perkins or Mr Hadgipantelis raised with the plaintiff the question of common law proceedings on that occasion. There is also no evidence that Ms Perkins followed up her memorandum to Ms Mortimer-Fox of 30 September 2008. In fact the letter of 4 December 2008 [10] states that:
"We confirm our previous advice that this settlement does not finalise your claim. In fact you have ongoing entitlements to medical expenses, wages where justifiable and deterioration of your lump sum entitlements in the future.
We expect to receive your settlement proceeds in approximately four (4) to (6) six weeks and we will be in contact with you once the cheque has been received. Please note that upon finalisation of your file your documents will be placed in our archive facility for a period of (6) six years should any future reference be again required.
We take this opportunity to congratulate you on the successful completion of your matter and not that we will be in contact with you once your settlement proceeds are to hand.
If you have any questions regarding the above, please so not hesitate to contact Emma Perkins of our office."
Brydens forwarded the settlement monies of $45,000 to the Plaintiff on 22 January. [11]
The file thereafter appears archived on an unknown date believed to be after January 2009. [12]
The Plaintiff thereafter had no contact with his solicitors until March 2012. At the end of 2011 he had a drop in earnings as his hours had dropped. On 5 January 2012 a letter was forwarded by GIO to the Plaintiff care of his solicitor referable to a drop in s 40 benefits under the Workers Compensation Act. [13] On 30 March 2012 Rita Palazzolo (who I am advised was in charge of the workers' compensation section at Brydens at the time) wrote a memo to Robert Bryden. [14] That memorandum advises that the letter from GIO of 5 January 2012 was in response to a letter from Ms Palazzolo dated 25 November 2011 requesting a review of the reduction of weekly payments. I infer from this that the archived file had been retrieved in November 2011.
In any event in her memorandum of 30 March Ms Palazzolo states inter alia:
"From Leap I cannot see any referral to the common law team for advice…
It seems to me however that this client needs to be provided with common law advice given that the matter settled for 21% WPI in 2008 and seeming as he is only 32 years of age.
Would you please review common law prospects in this matter and then advise whether I need to proceed any further with the weekly payments claim."
Ms Palazzolo has not given evidence and accordingly the circumstances in which she sought the advice referred to from Mr Bryden are not disclosed to the Court beyond the memorandum's content. In particular the Court is not aware why it took her from the end of November to 30 March 2012 to make the aforementioned request. Once again there is no evidence that the file was reviewed following a request for common law advice. Nor is there any explanation for the failure except that Mr Bryden left pursuant to a partnership dispute "in the first half of 2012". [15] In Ms Jones' earlier affidavit of 26 May 2014 it was deposed that the former partnership was in fact dissolved in June 2012. [16]
On 4 May 2012 Mr Hadgipantelis apparently reviewed the file. [17] His previous involvement in the worker's compensation proceedings has been referred to earlier in these reasons. Needless to say again the Court has not heard evidence from him.
At this point it appears that Mr Hagipantelis prepared a memorandum to Kristy Ransom to arrange an urgent conference with Mr Lidden SC. In the meantime "correspondence was sent to the GIO putting them on notice pursuant to the Workers' Compensation Act 1987 and the Work Injury Management Act 1998" is said to have been sent to the defendant's insurer on 3 July 2012. [18] It was not tendered in the proceedings and it appeared from cross-examination that the defendant disputed whether it had been sent at all. If it had been sent it would have predated the advice from Mr Lidden and the report from Dr Adams. Irrespective of whether it had been sent it is not at all clear to me that it constituted a proper Notice of the claim. [19]
The first scheduled conference with Mr Lidden SC on 27 September 2012 was postponed and rescheduled for 9 October 2012. On this latter occasion advice was given to obtain an expert liability report. Dr Adams was proofed on 10 December 2012, a conference held on 22 February 2012 and report completed on 25 February 2012. A further conference with Mr Lidden was held on 25 February 2013 and Brydens received draft pleadings from him on 4 March 2013.
Without directly contradicting Ms Jones' account the Defendants' solicitor Mr Kennedy produced as Annexure A to his affidavit a Notice of Claim for Work Injury Damages from Brydens dated 4 April 2013. That letter does not refer to the letter of 3 July 2012 forwarded by the Plaintiff's solicitor and in respect of which Brydens had not received a reply. In any event a letter requesting particulars was forwarded to the Brydens by Turks Legal on 10 April 2013. [20]
Mr Kennedy deposes that a letter from Brydens responding to the request for particulars and dated 6 August 2013 was not received by Turks Legal until 10 October 2013. [21] A pre-filing statement was served on Turks Legal dated 6 November 2013 and a pre-filing defence was sent in response dated 3 December 2013. [22]
The Plaintiff 's affidavit of 28 May 2014 deposes that after receipt of the letter of 4 June 2008 from Brydens he "left things in the hands of Brydens". [23] He stated that he didn't contact Brydens during 2009, 2010 or 2011 because
"…I simply left my claim in their hands. I know nothing about the legal system. I am not very confident about ringing up and making these types of enquiries. I just assumed that things were being done. If Brydens had needed me to do things in the past they would contact me. I assumed this would be how things would progress." [24]
Subsequently in an affidavit sworn 23 July 2014 the Plaintiff stated:
5. When my claim for a lump sum compensation was finalised I thought the other claim was being done and I didn't know that there was anything else that I had to do.
6. I understand that there was 3 years between the time my claim for lump sum compensation finished and when I contacted Brydens about a problem with my payments of compensation being reduced. In that period I believed my case was proceeding . I didn't know that there was anything else that I needed to be doing.
7. I left school at the age of 16. I obtained my school certificate but I have never been good at reading. Nowadays I read things on my phone but back in 2008 to 2012 I didn't read newspapers or books and I have never been good at doing paper work.
8. As I said in my original Affidavit I have always done anything that I was asked to do in connection with the claim. If my solicitors had asked me to do anything in 2009, 2010 or 2011 to bring this claim I would have cooperated with them.
9. It was my understanding that my solicitors had done something to fix up the 3 year issue for me because they never raised it with me again.
10. If I had been advised in January 2009 that I still had to worry about a three year time limit and that I couldn't afford to have any delay caused by me to have this case I would have been in regular contact with my solicitors to make sure that everything was okay. It is has been explained to me that a 3 year delay is a long period of delay but I didn't have any idea of what to expect and that is why I wasn't worrying about it.
In cross examination the Plaintiff conceded that before March 2008 he confirmed that he didn't want to sue his brother and "more put it off" and "delayed making a decision." He also said that there was a small improvement after the operation and that was a reason for the delay as he was not sure how long it would take to heal.
When he first saw Brydens in May 2008 he was told that there was a three year limitation period on common law proceedings but was told it was not set in concrete as in some circumstances the limitation could be extended. He stated that he was not aware when he first had to bring proceedings to extend time and still did not know what was involved. Between 2009 and 2012 he states that he did not have communication with Brydens. He conceded that he only contacted Brydens in 2012 after the insurer contacted him in December 2011 to reduce his weekly benefits.
Ms Cara Jones was also cross-examined. It seemed clear that her evidence was based on a review of the contents of the Plainitff's files.
[3]
PRINCIPLES
In Itek Graphix Pty Limited v Elliott [25] Ipp AJA (with whom Spigelman CJ and Sheller JA agreed) referred to Brisbane South Regional Health Authority v Taylor [26] stated
78 McHugh J (at 552) identified four broad rationales for the enactment of limitation periods, generally. These were:
(a) As time goes by relevant evidence is likely to be lost;
(b) It is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed;
(c) It is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period;
(d) The public interest requires that disputes be settled as quickly as possible.
87 In my opinion, in limitation legislation such as s 151D(2) of the Workers Compensation Act, where a broad discretion is conferred to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido). Or what does the justice of the case require (per McHugh J in Brisbane South Regional Health Authority). In answering such a question, the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the four rationales to which McHugh J referred.
In Nominal Defendant v Harris [27] Whealy JA (with whom Hodgson and McColl JJA agreed) referred to the above judgment and stated:
45. First, it needs to be borne in mind that these comments by Ipp JA (and indeed, by Sheller JA) were not "principles" in the true sense of the word. They were intended to provide useful and cautionary guidance as to the way a court exercising a broad statutory discretion to extend a limitation period will ordinarily respond. They do not (and were not intended to) supplant the language of the statute. They were not intended to override the broad discretionary exercise entrusted to a court to take into account all the relevant circumstances in determining what is fair and just. They were certainly not intended to operate as some kind of peremptory trigger or command requiring, without further evaluation, a predetermined outcome, namely a refusal of the application. They might indeed point firmly in that direction but they did not, without proper consideration of all the circumstances, dictate automatic and immediate refusal.
46. Indeed, Ipp AJA recognised this when he said at [87]:-
In my opinion, in limitation legislation such as s 151D(2) of the Workers Compensation Act , where a broad discretion is conferred to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido). Or what does the justice of the case require (per McHugh J in Brisbane South Regional Health Authority). In answering such a question, the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the four rationales to which McHugh J referred.
[This reference to the "four rationales" is a reference to McHugh J at 552-3 in Brisbane South Regional Health Authority].
47. Sheller JA echoed this thought at [2] when, speaking of the legislation there in question, he said:-
... the legislature does no more than enable the court to grant leave to a person to commence court proceedings after the expiry of the limitation period. In broad terms it can be said that a discretion expressed so widely should be exercised in a way which will best serve the justice of the case.
[4]
ANALYSIS
With this in mind I turn to consider the four rationales referred to by McHugh J in Brisbane South Regional Health Authority.
As time goes by evidence will be lost. The defendant bears an evidential burden in establishing facts that lead a court to a view that prejudice would be occasioned to it and once that has been established it is for the putative plaintiff to show to show that those facts do not amount to material prejudice. Mr Davies raised the significant period of time that had elapsed before the commencement of proceedings as well as what was referred to as the destruction of documents in [41]-[45] of the statement dated 6 November 2013 of Steven Grech (the defendant's director) in Annexure E of Mr Kennedy's affidavit of 24 July 2014. The description of these documents and their significance to the case is not apparent. As best as I can deduce at [41] Mr Grech states that he does not have WH&S safety policies referable to 1 April 2004.
Then at [38] of his statement Mr Grech refers to
"The instructions we would have received for the job Matt was on 1 April 2004, would be a plan and we are then told what to repair. I don't have the plan. A scope of the work would have come from Telstra and would have gone through Alstom and then throught Dopcom who give it to us. I don't have a copy of the instructions.'
Then at [40] he states;
I did not give instructions to Matt on how the work was to be performed. He may have been on the job for 2 or 3 days before the incident. I didn't see him every morning. It is up to him how the work was to be performed. There is really only one system of work to pull cables with using your arms.
Further at [44] he states that he can't remember if he conducted risk assessments on the job site although they were not normally carried out on Telstra pits. At [44] he states that a risk assessment was not conducted: "It was more verbal talk between myself, Matt and the other workers."
At [6] of Mr Kennedy's affidavit he states the documents that he has obtained and attached as Annexure E are "among other things" obtained after arranging for an investigation of the Plaintiff's claim. The "other things" are not identified.
In submissions Mr Davies who appeared for the Defendant also drew attention to the fact that neither the Statement of Claim nor the Plaintiff's responses to further and better particulars [28] identified the precise location of the Telstra pit.
Mr Welsh points out that Mr Grech in his said statement at [24] says that he became aware of the incident concerning the plaintiff 5 minutes after it occurred and after he finished what he was doing drove to the job site which was half an hour away. At [25] Mr Grech describes the location as being at Cranebrook on Council property. More pertinently at [29]-[32] he describes in some detail the circumstances leading to the alleged injury, mentioning that the Plaintiff "would have done 30-50 similar jobs before that one." After the incident he took the Plaintiff to the medical centre at Hurstville where he saw a Dr Chan. At [28] he states that he followed up reporting procedures and although he did not complete an incident form except to the GIO.
The Plaintiff has been in receipt of worker's compensation benefits and there is nothing to suggest prejudice in so far as the case on damages is concerned.
Viewed as a whole I do not consider that the evidence presented shows significant prejudice will be occasioned by the grant of leave. As was stated by McColl JA in The Salvation Army (South Australian Property Trust) v Rundle [29] "Brisbane South is authority for the proposition for an application for extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential Defendant… 'Significant prejudice' means such prejudice as would make the chances of a fair trial unlikely… for a trial to be fair, it need not be perfect or ideal…" [30]
Oppressive to Defendant to allow action brought long after the circumstances giving rise have passed. The circumstances of the injury, in this case were no doubt investigated by the insurer, reported to the employer and subject to ongoing medical treatment and review as part of the workers compensation process. The Plaintiff did not undergo surgery until March 2007 and thereafter a lump sum claimed was pursued by the Plaintiff's solicitors, which culminated in a complying agreement being entered on 3 December 2008 for 21% whole person impairment. At least until this point the circumstances giving rise to the injury were continuing. For a reasonable period thereafter the Defendant might well have anticipated that a Common Law action might be brought, although perhaps less so as more time elapsed.
Desirability for people to be able to manage their affairs and utilise their resources on the basis of claims can no longer be made against them. In this instance we have an insured Defendant and the insurer indemnifies the Defendant not only for the liability in damages to Mathew Grech but also fully under workers compensation legislation. As was stated by Nielson DCJ in Jones v Spackman [31]
"The Insurer of the Defendant would have to have some estimate or reserve placed against the potential value of the Plaintiff's Workers Compensation claim and, considering that there was permanent impairment, one might think that the reserve would clearly make allowance for the payment of compensation until the Plaintiff's putative for time and date. Clearly, the estimate for a Common Law action might be different. The liability for Workers Compensation weekly payments and things such as s.60 expenses can be amortised over a long period of time, whereas a Common Law estimate might require the insurer to have a reserve against the payments of a large lump sum within the immediate future; that is, within the next 18 months to 2 years. Clearly, there are differences but, in any event in a case of the current nature there could be no suggestion that the Defendant had no reserve or allowance available to him to meet the potential claim"
The public interest requires disputes to be settled as quickly as possible. Whilst this is acknowledged it has to be seen in the context of the capacity of the Court to do justice in the circumstances of the case through the grant of leave in appropriate circumstances.
The delay in this instance has been quite significant.
At first the Plaintiff was reluctant to seek legal advice because of the fact that he was hoping that his situation would improve, a reluctance to sue his brother and the fact that he was in receipt of workers compensation benefits. The situation clearly changed following his operation in March 2007 when it appears that his situation did not improve and 2008 he was out of work.
He saw Brydens on 21 May 2008. Whilst he conceded that he had been advised of two sets of rights he stated that he did not know what was involved except that he needed to get the compensation case finished first and then bring a second action. The Defendant conceded that up until December 2008 Brydens had acted promptly. As I have already stated the circumstances in which after the finalisation of the lump sum compensation proceedings the file was archived and has not been explained by those involved.
In [8] of her first affidavit dated 28 May 2014 Ms Jones states that there appears to have been a 4 year period when no work was undertaken on the Plaintiff's file. In her affidavit of 24 July 2014 Ms Jones claims that this is incorrect referring to a period between 22 January 2009 when I checked the settlement monies was forwarded to the Plaintiff and in January 2012 when correspondence was received from the GIO dated 5 January 2012, being correspondence marked "annexure B" to Ms Jones said affidavit.
The Defendant disputes in circumstances in which the Plaintiff did not make contact with his solicitors until March 2012; contending that his assumption that "things were being done" was not plausible.
The 3 year period is certainly a lengthy period of time for no communication to take place.
Furthermore delay overall was compounded so far as the Defendant was concerned by what appear to be delays by the Plaintiff's solicitors in the progression of the matter particularly in obtaining counsel's advice and an expert report.
On the evidence I am also satisfied that t the Defendant was not put on notice of the common law claim until 4 April 2013 for the purposes of the Workplace Injury Management & Workers Compensation Act 1998.
The Plaintiff's explanation that he was not experienced in the legal system stating the obvious. When asked, he struggled to explain the difference between the two types of proceedings. He knew common law proceedings involved negligence, that his claim was out of time and that an extension could be obtained. However, he reiterated on several occasions that he did not know what was involved and that he attended to things requested of him by his legal representatives. True enough he could have made enquiries; however I accept his explanation as described in [23] and [24] of these reasons as genuine.
Whilst the position of the Plaintiff's solicitors has been earlier described it is clear that a significant part of the post December 2008 delay rests for them to account. In circumstances in which common law proceedings do not appear to have been progressed before Mr Hadgipantelis initiated some action in 2012, none of the numerous previous solicitors who handled this matter have given evidence.
In Pearce v Integra Coal Operations Pty Ltd [32] Rothman J at [46] stated that ordinarily delay occasioned by a solicitor will be visited on the Plaintiff. See also NSW v Judd, [33] Coal & Allied Operations Pty Ltd t/a Hunter Valley Operations (Howick) Mine v Stringer [34] and Pearce v Integra Coal Operations Pty Ltd. [35]
However overall the test is not whether a full and satisfactory explanation has been provided but rather what is "fair and just" or "what does the justice of the case require". [36]
[5]
CONCLUSION
The Plaintiff's injury was a significant one and is not contended by the Defendant that the claim is not bona fide.
I do not find any substantial prejudice such that a fair trial could not take place were leave to be granted.
The Plaintiff was out of time to commence proceedings at the time he first consulted Brydens. His reluctance to seek legal advice before 2008 was explained by the reluctance to sue his brother, his anticipation of improvement and the fact that he was in receipt of workers compensation benefits and held a job until the end of 2007.
At the time of the first consultation with Brydens his attention was drawn to potential common law proceedings and accepting his evidence as I do I am satisfied that he was to be guided to peruse a common law action should it be open to him after the conclusion of his lump sum compensation claim. His knowledge of what was required remained poor and vague to say the least. Having heard from him I am satisfied that he was almost entirely dependant on his solicitors, was unclear as to what was involved in the pursuit to his future entitlements and genuinely albeit naively believed his interests were being advanced on his behalf.
The delay is deprecated however I am not satisfied that the Plaintiff had at any point abandoned his case or made an election not to proceed at common law after his lump sum compensation claim had concluded.
The matter is finely balanced. Not without some hesitation I am of the view that justice is best served by granting the application.
Pursuant to s151D(1) of the Workers' Compensation Act 1987 I order an extension of time for the bringing of the proceedings in respect of the cause of action pleaded in matter number 2014/58355.
I will hear the parties as to costs.
[6]
Endnotes
[5] Affidavit Matthew Grech 26 May 2014
Exhibit A
[12] Affidavit Matthew Grech 28 May 2014
[12] Affidavit Matthew Grech 28 May 2014
[13] Affidavit Matthew Grech 28 May 2014
[14] Affidavit Matthew Grech 28 May 2014
[11] Affidavit Cara Jones 26 May 2014
Annexure B Affidavit Cara Jones 24 July 2014
[10] Affidavit Cara Jones 26 May 2014
Annexure C to Affidavit Cara Jones 24 July 2014
Annexure A to Affidavit Cara Jones 24 July 2014
[5] Affidavit Cara Jones 24 July 2014
Annexure B to Affidavit Cara Jones 24 July 2014
[4] Affidavit Cara Jones 24 July 2014 and Exhibit 1
[6] Affidavit Cara Jones 24 July 2014
[23] Affidavit Cara Jones 26 May 2014
[22] Affidavit Cara Jones 26 May 2014
[24] Affidavit Cara Jones 26 May 2014
Exhibit A
Annexure B to Affidavit Samuel Kennedy 24 July 2014
[4] Affidavit Samuel Kennedy 24 July 2014
[5], [7] and Annexures D and E to Affidavit Samuel Kennedy 24 July 2014
[16] Affidavit Matthew Grech 28 May 2014
[19] Affidavit Matthew Grech 28 May 2014
[2001] NSWCA 442
[1996] HCA 25 and (1996) 186 CLR 541
[2011] NSWCA 70
Annexure C to Affidavit Samuel Kennedy 29 July 2014
(2008) NSW CA 347(96)
Cited with approval by Basten JA with whom Gyles AJA and Hoeben JA concurred in Strasburger Enterprises Pty Ltd t/a Quiks Food Stores v Scerna (2008) NSW CA 354 (52)
(2014) NSW DC 139(77)
[2014] NSW SC 561
[2003] NSW CA 355 Handley JA [43] with whom Santow JA and Gyles JA agreed
[2003] NSW CA 271per Ipp JA at [35]
[2014] NSW SC 561 at [46]
Itek Graphix Pty Limited v Elliott supra at [87]
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Decision last updated: 09 February 2015