Plaintiff v Defendant

2 AS was born on 23 January 2008 and held in the detention centre between July 2013 and August 2014.

3 The defendants to AS' claim are the Minister for Immigration and Border Protection (the Minister) and the Commonwealth of Australia (the Commonwealth) (collectively, the Defendants). International Health and Medical Services Pty Ltd (IHMS) and Serco Australia Pty Ltd (Serco) are third parties joined by the Commonwealth.

4 The Commonwealth contracted out much of the management of the detention centre, in broad terms, to IHMS which provided medical services; and to Serco, which provided administrative and other services.

5 The lawyers for AS are engaged in pre-trial preparation, including conferring with witnesses they may call at the trial. A number of orders have already been made in relation to witnesses bound by confidentiality obligations to facilitate pre-trial preparation and enable the legal practitioners to confer with former employees or contractors of the Commonwealth and IHMS.[1]

6 However, an issue has arisen in relation to the lawyers for AS being permitted to speak to a former Serco employee, Timothy Haye, before the start of the trial. Serco asserts that Mr Haye is bound by confidentiality obligations contained in his employment contract and that he should be kept to those confidences. Serco accepts that he can be compelled to give evidence at trial, but contends that the Court should not, in effect, override Serco's contractual right to insist on confidentiality prior to the trial. If this be correct, to use legal vernacular, counsel for AS will have to call Mr Haye 'cold'.

7 AS argues that it is in the public interest that the lawyers be able to interview Mr Haye prior to the trial, and that this is consistent with the aims of the Civil Procedure Act 2010 (CPA).There is a potential for the case to be disrupted if Mr Haye is not relieved of his confidentiality obligations.

8 The relevant parts of AS' summons of 7 October 2016 state:

Mr Timothy Haye

(a) for the purpose of conferring with the legal advisers to any party in this proceeding in respect of the allegations made in the Plaintiff's statement of claim dated 23 September 2016;

(b) be relieved of any obligations of confidence he owed to the Second Third Party (Serco) insofar as those obligations would otherwise be breached by his communication of confidential information to the legal advisers of any party to this proceeding and this Court.

9 To give some context to this application, it is necessary to set out the case that is made against the Commonwealth, including Serco's involvement - in précis it is as follows:[2]

(a) AS is the representative plaintiff in the class action which she brings on behalf of all detainees:

(i) who were kept in the detention centre between August 2011 and August 2014; and

(ii) who suffered injury whilst in detention.

(b) Serco was contracted by the Commonwealth to provide accommodation, security and recreational services for persons in detention on Christmas Island;[3]

(c) the conditions to which AS and group members were subject to while in detention included control by Serco as to who was able to visit, telephone or otherwise contact them;[4]

(d) AS and group members, while in detention, were prevented from accessing medical and health services and recreational facilities, other than those that the Commonwealth or Serco chose to make available to them;[5]

(e) AS and group members were subject to physical conditions and a daily routine exclusively determined by the Commonwealth and Serco, including the provision of food, accommodation and recreational and occupational activities;[6]

(f) the Commonwealth and Serco were aware of threats of self-harm made by AS; and

(g) the Commonwealth (and therefore Serco) breached its duty of care to AS and group members.

10 The Defendants' third party notice seeking indemnity and/or contribution from Serco identifies these particulars of breach:

(a) failing to ensure that the physical conditions of detention were not such were likely to cause or exacerbate injury and/or developmental delay in minors;

(b) failing to adequately assess and monitor the condition of AS and group members to determine whether, and to what extent, they suffered from injury which might be caused or exacerbated by detention;

(c) failing to have in place a system for the assessment and monitoring of the condition of AS and group members to determine whether, and to what extent, they suffered from injury which might be exacerbated by detention;

(d) failing to provide AS and group members with timely access to adequate medical services for injuries which should have been identified had an adequate assessment and monitoring system been in place;

(e) failing to provide AS and group members with timely access to adequate medical services for injuries which it had identified;

(f) failing to have in place a system for the medical treatment of AS and group members which was capable of ensuring that they were provided with timely access to adequate medical facilities in respect of injuries;

(g) failing to make adequate arrangements for AS and school age group members to undertake appropriate educational programmes or attend school; and

(h) failing to ensure that AS and school age group members attended a school on each day on which the school was open for instruction.

11 The affidavit of Christopher Pagent, solicitor for Serco, sworn 7 November 2016, contains all the information provided to the Court about Mr Haye and his employment on Christmas Island.

12 Mr Pagent deposes that Mr Haye was employed by Serco from 7 September 2009 to 10 April 2015 as a detention service officer. Mr Haye's August 2009 contract of employment (the employment contract) describes his place of work and role at the detention centre.[7] As to confidentiality it provides:

It is a condition of your employment that you will not disclose nor use at any time either during your employment or thereafter, any policy, practice, procedure, prisoner information, client information, supplier information, trade secret, financial, business, confidential or other data belonging to or concerning the business operations or affairs of or otherwise relating to the company or any associated companies, their customers and other business organisations acquired in the course of your employment with the company without first obtaining the company's written consent to such disclosure, except such disclosure as may otherwise be specifically required or permitted by the company, required by law or unless such information has become public knowledge through no action by yourself.

13 The position description, contained in Exhibit CJP-7 to Mr Pagent's affidavit also describes Mr Haye's 'Key Result Areas':

(1) Maintain smooth running of assigned areas ensuring safety and security of detainees, colleagues and visitors.

(2) Perform accurate and timely security checks, headcounts and searches.

(3) Complete logs, reports, individual management plans and monthly casework.

(4) Interact with detainees informing management of any alleged abuse or impropriety, health or general concerns in regards to detainees.

(5) Hold current certifications.

14 "Detainee Care" is described as including the following tasks:

• Provide First Aid to Detainee/s including CPR.
• Interact, converse and actively listen to detainees. Treat detainees with dignity, integrity and equality.
• Respond to and assist in resolving problems decisively, professionally and non-confrontationally; informing Centre Manager/Facility Operations Manager of any abuse or information brought to your attention.
• Ensure daily contact with those identified as at risk of suicide and self-harm.
• Review and maintain strong awareness of self-harm/suicide prevention documentation and initiate appropriate actions as required.
• Identify and aid implement alternative coping mechanism with detainees who may have behavioural issues.
• Act as a safeguard to all detainees in detention through maintaining a secure and stable environment.
• Be a point of contact for detainees and other stakeholders in regard to the detainee's well-being and welfare needs.
• Maintain accurate records of interactions with detainees or other stakeholders.
• Notify the Health Care Service Provider Team of any concern about the physical or mental health of a detainee.

15 At the hearing, counsel for AS stated that Mr Haye has, in conformity with orders made by this Court, been contacted by Maurice Blackburn, the solicitors for AS, and that he is prepared to confer with the lawyers prior to trial in the event that the Court releases him from his confidentiality obligations.

Applicable principles and their application in previous cases

16 There was little dispute between the parties as to the applicable principles which are summarised here:

(a) an obligation of confidentiality (whether contractual or equitable) will not be enforced by a court, or will be treated by a court as void, if it has an adverse effect on the administration of justice;[8]

(b) this principle is applicable to both criminal and civil proceedings;

(c) for the protection of a confidence to be lost there must be some 'public element' relevant to the administration of justice that is affected;[9]

(d) determining whether the protection of a confidence should be removed depends on the circumstances, including the following:

(i) what information is sought to be protected;

(ii) the extent of the protection said to be afforded by the agreement;

(iii) whether the rights of third parties are affected; and

(iv) whether there are any wider public policies involved.[10]

(e) A court will not usually interfere with a party's preparation of a case for trial and, in particular how it lawfully obtains evidence to support the case.[11]

17 Before I consider the issues in this case in greater detail, it is helpful to look at three cases in which the question of disclosure of confidential information has been considered in the context of pre-trial preparation.

18 The first is the decision of Campbell J in the New South Wales Supreme Court in AG Australia Holdings Ltd v Burton.[12] In that case, AG Australia Holdings Ltd (AG) (previously GIO) was the defendant to a Federal Court class action brought, interestingly, by Maurice Blackburn on behalf of shareholders in GIO. Mr Burton was an executive in the reinsurance business of GIO. His employment contract included a confidential information non-disclosure provision.[13] Mr Burton was interviewed by a Maurice Blackburn solicitor and had been persuaded to make a witness statement for the proceeding. The intention was to call Mr Burton at trial.

19 During the pre-trial processes, GIO became aware that Mr Burton had been talking to Maurice Blackburn and that the firm was preparing a witness statement.[14] Prior to the witness statement being finalised, and after Maurice Blackburn had refused to give an undertaking in relation to a potential breach by Mr Burton of his confidentiality agreement, AG sought injunctive relief against both Mr Burton and Maurice Blackburn. The heart of the relief sought was to restrain both Mr Burton and Maurice Blackburn from using any information obtained from Mr Burton which breached the confidentiality provision of Mr Burton's employment contract. The injunction sought to prevent Mr Burton from further discussion with Maurice Blackburn and delivery of all documents and materials to AG including the draft witness statement. Part of the argument (which was rejected by Campbell J) on behalf of Mr Burton and Maurice Blackburn was that pre-trial preparation was well underway and would be seriously prejudiced.[15]

20 The judgment contains an extensive analysis of authorities related to the question of confidentiality and the adducing of evidence in court proceedings. Campbell J concluded that both Mr Burton and Maurice Blackburn should be restrained from using information which breached the confidentiality undertaking contained in Mr Burton's employment contract.[16] His Honour accepted that the exercise was one of balancing policy considerations underpinning the administration of justice against the public interest in protecting the confidentiality obligations contained in a contract of employment. His Honour held:

Having surveyed these principles which the community has already adopted formally by law, I can see no basis for holding that a former employee, who has been entrusted with his employer's confidential information, and has promised not to disclose it, ought be free on grounds of public policy to disclose that information to a solicitor, if he so wishes, and if the solicitor bona fide wishes to receive that information for the purpose of advancing litigation which the solicitor is in the course of running.

In Re Morris, Jordan CJ said that the court could also look at principles which the community as a whole has already adopted tacitly by the general course of corporate life. No specific evidence on that matter was put before me. As a matter of judicial notice, I do not find that there is any definite principle which this community adopts in the general course of its corporate life, whereby former employees are free to disclose their former employer's secrets to a solicitor who wishes to use those secrets in litigation against the former employer.

In these circumstances, I do not find that public policy requires the terms of the confidentiality undertaking to be treated as void, or for the court to decline to enforce them, to the extent that the confidentiality undertaking prohibits Mr Burton from disclosing confidential information to Maurice Blackburn Cashman.[17]

21 The second decision is that of the New South Wales Court of Appeal in Richards v Kadian.[18] This case involved an obligation of confidence in the context of a doctor/patient relationship.

22 Ankur Kadian, by his litigation guardian, brought a claim in negligence against Bruce Richards, a medical practitioner involved in the treatment of his congenital heart condition. Dr Richard's lawyer wanted to interview two of Ankur's treating doctors as part of pre-trial preparation. Ankur's lawyers objected on the basis that this was a breach of doctor/patient confidentiality.

23 I have already referred to parts of this judgment in setting out the relevant principles. Beazley JA analysed many of the authorities and concluded:

The real question for determination is when the court will not permit an obligation of confidence to be insisted upon. As appears from the above review of authorities, the principle has always been stated in association with an identifiable public interest that goes beyond the private civil rights of parties to the obligation.[19]

Her Honour then said:

This case involves private litigation between the parties... The claimant has a right to defend the allegations against him. To that extent, the administration of justice is involved. Ankur also has a confidential relationship with his treating doctors that the law will protect unless it can be said that to do so may interfere with the administration of justice. However, the language of the case law is clear: an obligation of confidence will only be overcome where there is some matter of public interest that requires it. That will only be so where, to use the language of Asquith LJ in Monkland v Jack Barclay Ltd "the contract is incontestably and on any view inimical to the public interest." Party/party litigation of the type here is not of that nature.[20]

...

There may be a balancing exercise, depending upon the nature of the confidential information, the public interest said to be affected and whether there is any other public interest consideration. This too is clear on the authorities. However, in this case, that question does not arise, as, contrary to Senior Counsel's submission, the obligation of confidence is not being insisted upon in circumstances where it is contrary to public policy to do so.[21]

24 The final case of relevance is the recent Victorian decision of Sifris J in Johnson v AED Oil Ltd.[22] In that case, it was contended that a clause in a settlement deed precluded two witnesses from participating in a pre-trial conference with solicitors for one of the defendants with the result that each would be called to give evidence at trial 'cold'. The clause read:

Each and all of the Equinox Parties agree and warrant that they will not act against the interest of [various AED entities]... save as compelled by a court of Australia. [23]

25 Sifris J considered whether the clause ought not to be enforced on the grounds that it interfered with the administration of justice. Ultimately, his Honour held that while there would be some minimal disruption to the conduct of the trial, in the circumstances of that case, such disruption would not adversely affect the administration of justice so as to warrant a waiver of the clause.

26 This limited excursus demonstrates several things. First, courts are reluctant to relieve a witness of a confidentiality obligation in the pre-trial phase of litigation. Second, and this is the qualification - each case turns upon the nature of the confidential relationship, any relevant legislation and whether there is a real prospect of an adverse effect upon the administration of justice which outweighs the public interest in protecting the confidence. Third, that the balancing exercise requires consideration of the various issues described in [16](d).

27 Bearing these principles in mind and for the reasons that follow, I have come to the conclusion that the lawyers for AS should have orders which enable them to confer with Mr Haye prior to trial. In my view, the public interest in the administration of justice outweighs that of the maintenance of the commercial confidence. I am conscious of the need to protect contractual bargains and accept that this conclusion is a departure from determinations in other cases but this is a different case in a different legislative paradigm.

28 The first and primary point is whether the interests of justice will be adversely affected by requiring AS to call Mr Haye without the opportunity of conferring with him.

29 I accept AS' submission that the CPA plays an important role in determining where the public interest lies. The overarching purpose of the CPA is to facilitate 'the just, efficient, timely and cost effective resolution of the real issues in dispute'.[24] To that end, the Court is required to have regard to the following relevant matters in making any order or direction which furthers the overarching purpose:

(a) the just determination of the civil proceeding;

(b) the public interest and the early settlement of disputes by agreement between parties;

(c) the efficient conduct of the business of the Court;

(d) the efficient use of judicial and administrative resources;

(e) minimising the delay between the commencement of the civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for-

(i) the fair and just determination of the real issues in dispute and;

(f) the timely determination of the civil proceeding;

(g) dealing with the civil proceeding in a manner proportionate to the complexity or importance of the issues in dispute; and

30 Under s 48 of the CPA, the Court has specific, non-exclusionary powers in relation to pre-trial procedures, empowering it to 'make any order or give any direction it considers appropriate to further the overarching purpose in relation to pre-trial procedures'. Section 49(1) gives a similar power to a Court in relation to the conduct of a trial.

31 The relevance of parliamentary intention in determining what is in the public interest was recognised by Campbell J in AG Australia. As his Honour said:

While the administration of justice is a very important matter of social policy, it is not one which overrides all other matters of public importance. There are many constraints under which litigation operates, where, as a matter of public policy, information is not able to be used at all in litigation.[25]

His Honour then referred to privileges under the Evidence Act 1995 (Cth), confidentiality in discovery, subpoena production and the principles contained in the decision of Harman v Home Office.[26]

32 Whilst there are many limitations to the disclosure of confidential information in pre-trial processes (such as those identified by Campbell J), the other side of the coin, now recognised in the CPA, is that Parliament requires the efficient conduct of litigation with concomitant effective use of judicial resources. The ultimate aim should be ensuring that justice is done between the parties as efficiently and inexpensively as possible.

33 It is clear that Parliament, by the enactment of the CPA and in particular ss 48 and 49, requires a court, as a matter of public policy in the judicial administration of proceedings, to take into account both pre-trial and trial processes in ensuring that the overarching purpose is fulfilled.

34 The importance of the CPA, and its effect on the management of litigation was recognized by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd,[27] in which it said of its NSW analogue:

The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.

That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.[28]

35 So the option here is between allowing the lawyers for AS to prepare the case with adequate appreciation of matters which may well be relevant to the case of AS against the Commonwealth (and to its third party proceedings against Serco and IHMS), as against Mr Haye being called 'cold' without anyone, including the Court, knowing positively whether his evidence will be of marginal or critical relevance.

36 The allegations made by AS set out at [9] combined with Mr Haye's position description and detainee care duties set out at [13] and [14] allow an inference that during Mr Haye's time on Christmas Island (five and a half years including all of the period in which AS was detained), he was probably involved in or was aware of a number of the activities which are the subject of assertions of breach of duty against the Defendants and third parties. Alternatively and at the very least, it is inevitable that he will be able to give evidence which will go to the sub-stratum of fact underpinning those allegations. For instance:

(b) the provision of accommodation, schooling, recreational programs, medical services at the detention centre;

(c) the relationship between the Defendants, Serco and, perhaps, IMHS; and

(d) the Defendants' and Serco's involvement in accommodation, education, access to medical services and the provision of recreational facilities and amenities.

37 I reject the submission made by Serco that there is sufficient evidence as to Mr Haye's interaction with AS available so as to obviate the need for access to Mr Haye prior to the trial. This apparently stems from a reference in a Maurice Blackburn letter to a discovered document which "suggests that Mr Haye had direct contact with AS" and the fact that her lawyers have instructions from the father of AS and will be able to confer with other witnesses.[29]

38 There is a degree of unreality associated with this submission. The lawyers for AS, like the Court, have no direct evidence (as opposed to the drawing of inferences) as to the degree of relevance of Mr Haye's testimony. This is clear from the affidavit of Tim Conboy, solicitor for AS, sworn 7 October 2016. Much of what Mr Haye may give evidence about is a 'known unknown', to use a famous phrase. On the other hand, Serco knows exactly what he did or did not do at the detention centre over a period of five years. Serco has not provided any further information other than Mr Haye's contract of employment and the statement of work duties set out at [13] and [14].

39 I consider that there is a real and not fanciful prospect that by requiring Mr Haye to give evidence 'cold', the orderly management of the trial will be impacted adversely. The trial will probably take up five to six weeks of Court sitting time. Orders have already been made for the provision of outlines of evidence of witnesses to be called at the trial. In the event that AS calls Mr Haye, the provision of an outline will inform the Defendants and IHMS of the substance of the evidence to be given by Mr Haye so that they may fashion their response. The unpalatable alternative is for Mr Haye to give evidence in chief 'cold' with a real prospect of the Court then being besieged by applications to adjourn or delay the trial while instructions are sought regarding matters disclosed by him for the first time at trial. Worse, there is real potential that one of the parties may wish to call further evidence or search for documents to amplify, rebut or qualify what has been said by Mr Haye. All of this can hopefully be avoided by the provision of an outline of Mr Haye's evidence prior to the trial. This will allow each of the parties an opportunity to gauge (and if necessary, investigate) any allegation relevant to Mr Haye's work at the detention centre. Absent this step, it is close to inevitable that there will be complaints from all sides of an inability to meet this evidence if not forewarned of its content. The risk of derailing the trial by adjournment or recall of witnesses is not just confined to what AS' lawyers may learn if forced to call Mr Haye 'cold'. It applies equally to the interests of the Commonwealth and IHMS.

40 The nature of this case is also relevant consideration in determining where the interests of justice truly lie. AS is only eight years of age. I am prepared to assume that she will be able to say little, if anything, about the circumstances of her detention. Although AS' parents will be able to provide some evidence as to the conditions on Christmas Island relevant to AS' detention, it is important to remember that they are refugees with limited command of the English language. A witness such as Mr Haye who can provide detailed evidence as to conditions on Christmas Island and, in particular, the role of the Defendants, Serco and IHMS in the management of the detainees generally and particularly of AS, will assist the trial judge in determining whether there is any substance to the allegations made by AS.

41 In addition, it must be borne in mind that this is a class action brought on behalf of over 3000 potential group members. In the recent Federal Court decision of Jones v Treasury Wine Estates Ltd,[30] the Full Court made the following observations about the Court's role in the management of class actions:

The rules of the Supreme Court of Victoria are not the same as those of this Court. Nonetheless the relevant rules in that Court are similar in that they have embraced modern judicial case management. This fact was of significance in his Honour's reasoning supporting the grant of anti-suit injunctive relief.

The position here is the same. Moreover, the present case is a class action. Case management of such proceedings has a particular significance given the Court's supervisory role.[31]

Whilst it is common ground that the trial will only deal with the confinement of AS in the detention centre, there is a potential for findings to be made (adverse or favourable) which would bind both members of the group, the Defendants and the third parties. In that situation, it is patently in the interests of justice that all relevant evidence be marshalled in an orderly fashion and without disruption to the trial.

42 In summary, in this day and age, the principle upon which Serco insists simply does not stack up against the modern ethos of pre-trial and trial management in the context of this case. The necessary public element is the expeditious and fair management of the trial and the pre-trial process. On this basis alone I would accede to making the orders sought by AS.

43 Additionally, I can see no unfairness to Serco in permitting Mr Haye to be interviewed by the lawyers for AS. It is not contended that there is any commercial disadvantage to Serco. This is not a case in which the identified confidential information could be used by a competitor or involves vital information that should be kept out of the public eye.

44 Rather, this is a case where Serco is seeking to obtain a forensic advantage (which it contends it is entitled to) by restraining Mr Haye from talking to AS' lawyers. In this context, one must be mindful that Serco's lawyers have no such restraint upon their ability to confer with Mr Haye.

45 It should also be noted that Mr Pagent, in his affidavit, does not suggest that there is any prejudice to Serco in Mr Haye being interviewed by the lawyers for AS. Further, Mr Haye has now left Serco's employment so there is no question of inconsistency as between his confidentiality obligations and his ongoing role as a Serco employee.

46 Finally, I can see nothing that deprives Serco of a fair trial of its contest with the Commonwealth by allowing AS' lawyers to confer with Mr Haye prior to the trial. To the contrary, if (contrary to my assumption) Mr Haye has nothing of value to add to the trial of the issues, then he will not be called and any potential disruption will be avoided. On the other hand, if he does have relevant evidence then it will become part of the fabric of the fair trial of AS' claim and the third party proceedings without the prospect of trial dislocation.

47 Accordingly, I am of the opinion that the administration of justice will be adversely affected if the orders sought are not made. There is a real and identifiable public element in the efficient and expeditious administration of justice that makes it necessary for the obligation of confidentiality to be dispensed with. This outweighs any public interest in maintaining the contractual confidentiality between Serco and Mr Haye.

48 For the reasons I have set out, orders should be made dispensing with the confidentiality obligations owed by Mr Haye to Serco for the purpose of this proceeding. Such orders were made on 26 November 2016 in relation to confidentiality obligations owed by IHMS employees and no doubt orders in similar terms can be agreed between the lawyers for AS and Serco.

[1] See AS v Minister for Immigration and Border Protection (Ruling No.3) (2015) 307 FLR 122.

[2] Statement of Claim of 23 September 2016.

[7] Exhibit CJP-6 to the affidavit, sworn 7 November 2016.

[8] A v Hayden [1984] HCA 67; (1984) 156 CLR 532 (Mason J), 557, 571-572 (Wilson and Dawson JJ).

[9] Richards v Kadian [2005] NSWCA 328; (2005) 64 NSWLR 204, 215 [42], 224-225 [84]-[86] (Beazley JA), 241 [160] (Hodgson JA).

[11] Jones v Treasury Wines [2016] FCAFC 59; (2016) 241 FCR 111, 119 [52].

[12] [2002] NSWSC 170; (2002) 58 NSWLR 464 ('AG Australia').

[18] [2005] NSWCA 328; (2005) 64 NSWLR 204.

[22] [2011] VSC 94.

[24] CPA s 7.

[25] AG Australia [2003] NSWCCA 59; (2002) 56 NSWLR 454, [131].

[26] [1983] 1 AC 280.

[27] [2013] HCA 46; (2013) 250 CLR 303.

[28] Ibid 323 [56]-[57] (emphasis added).

[29] [6}of Serco's submissions referring to a letter from Mr Conboy of Maurice Blackburn.

[30] [2016] FCAFC 59; (2016) 241 FCR 111.

[31] Ibid 117 [38]-[39] (emphasis added).