Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision [2019] FWC 182 of Deputy President Sams at Sydney on 21 June 2019 in matter number U2016/12864.

[1] Subeg Singh has applied, pursuant to s 604 of the Fair Work Act 2009 (FW Act), for permission to appeal against a decision of Deputy President Sams issued on 21 June 2019[1] (Decision) in which he dismissed Mr Singh's application for an unfair dismissal remedy against his former employer, Sydney Trains. In the amended notice upon which he now proceeds, Mr Singh contends that the Decision was attended by appealable error in six respects and that the grant of permission would be in the public interest.

[2] The procedural course of Mr Singh's unfair dismissal remedy application and his appeal has been long and somewhat meandering. His original application was filed on 24 October 2016 (in anticipation of his dismissal, which took effect on 30 November 2016). There was an unsuccessful conciliation before a staff conciliator on 14 December 2016, a directions hearing before the Deputy President on 23 December 2016, and a further unsuccessful conciliation before him on 10 January 2017. On 16 February 2017, the Deputy President was advised by Mr Singh's then legal representative that his application had been settled. However on 22 March 2017, the Commission was notified that Mr Singh had changed his representation, and subsequent correspondence advised that Mr Singh denied that he had entered into a settlement. There was then a controversy about Mr Singh's representation, which was resolved when he again obtained new legal representation. It was then necessary for the Deputy President to determine the issue of whether Mr Singh's application had been settled, and he did so in a decision issued on 7 August 2017[2] in which he concluded that a settlement had indeed been reached on 13 February 2017. On that basis the Deputy President determined to dismiss Mr Singh's application pursuant to s 587(1)(c) of the FW Act on the basis that it had no reasonable prospects of success.

[3] Mr Singh then appealed this decision and, in a decision issued on 3 October 2017,[3] a Full Bench granted him permission to appeal, upheld his appeal and quashed the Deputy President's decision. The matter then returned to the Deputy President for determination of the merits of Mr Singh's unfair dismissal remedy application. After some interlocutory skirmishing, the application was heard before the Deputy President on 9-11 April, 23-25 July and 20 and 23 August 2018. The Deputy President then reserved his decision and, as earlier stated, the decision now under appeal was issued on 21 June 2019. Sydney Trains' success then led it to lodge an application for costs on 4 July 2019.

[4] Mr Singh lodged his notice of appeal against the decision on 10 July 2019. By this time he had changed his representation again. His appeal was listed for hearing before a Full Bench, both as to the application for permission to appeal and the merits of the appeal, on 7 August 2019. However on 16 July 2019 the lawyers for Sydney Trains wrote to the Commission requesting an adjournment of the hearing on the basis that its counsel and solicitor who had conducted the matter at first instance were unavailable on the day of the hearing. They also requested that the matter be listed for hearing on the question of permission to appeal only. The first part of this request was, by consent, acceded to, and the matter was eventually re-listed for hearing before the currently-constituted Full Bench on 13 November 2019 (again, both as to the application for permission to appeal and the merits of the appeal). Directions were issued on 27 September 2019 requiring, among other things, that Mr Singh file an outline of submissions by 16 October 2019. An outline of submissions was subsequently filed by Mr Singh in accordance with this direction.

[5] Meanwhile the Deputy President issued his decision as to Sydney Trains' costs application on 30 September 2019.[4] He determined that Mr Singh should pay Sydney Trains' party-party costs from 3 November 2017. He reserved making an order giving effect to his determination in light of Mr Singh's appeal of his earlier decision, and stated a presumption that Mr Singh would amend his appeal grounds to encompass the costs decision.

[6] At some time thereafter, Mr Singh changed his legal representation yet again. On 25 October 2019, Hall Payne Lawyers filed a notice that they were commencing to act for Mr Singh. On 31 October 2019, Mr Singh's new lawyers stated that they had been instructed to seek to amend the notice of appeal in respect of both the Decision and the costs decision, and requested that the existing directions and hearing date be vacated and new directions made leading to a new hearing date in February 2020. In response to this, the presiding member conducted a directions hearing in relation to this application on 1 November 2019. It was submitted at that hearing by counsel for Mr Singh that the notice of appeal and outline of submissions previously filed on behalf of Mr Singh did not disclose any arguable contention of appealable error, and it would be necessary for his appeal case to be re-formulated in order for his interests to be properly represented. It would also be necessary to amend the notice of appeal to encompass the costs decision of 30 September 2019. Sydney Trains opposed the adjournment, and proposed instead that the hearing date of 13 November 2019 be retained on the basis that it would only deal with the issue of whether Mr Singh should be granted permission to appeal against the Decision, with any appeal against the costs decision to be reserved until that was determined. Mr Singh did not seek to be heard against this proposal. Accordingly the hearing was re-listed on that basis, and Mr Singh was directed to file an amended notice of appeal and a three-page outline of submissions concerning permission to appeal by 8 November 2019. These directions were complied with, the hearing as to permission to appeal against the Decision proceeded on 13 November 2019, and we then reserved our decision.

[7] This Decision determines Mr Singh's application for permission to appeal against the Decision.

[8] Prior to his dismissal, Mr Singh had been employed by Sydney Trains or its predecessor statutory entities for 34 years. At the time of his dismissal he held the position of Team Leader, Track and Structures. His dismissal arose from his involvement in two serious safety incidents which occurred on 1 August 2015 while his team was undertaking track measurement work. Following these incidents, Mr Singh was suspended with pay while an investigation of the incidents was carried out. As a result of the investigation, a "Level 3 Report" was prepared by an external professional safety investigator, Ms Kerry Walker, which identified a number of systemic deficiencies in relation to the incident and made 15 recommendations for change, and also identified specific instances of failures to follow safety procedures by Mr Singh as well as others.

[9] On 5 August 2016, Mr Singh was issued with a letter requiring him to "show cause" why he should not be dismissed on the basis that an allegation of misconduct by him had been found to be sustained. The allegation and its particulars were as follows (with numbering added for subsequent reference purposes):

On 1 August 2015, between Mortdale and Wolli Creek, in your capacity as Team Leader and nominated Lookout for a Work Group assigned to complete planned track measurements on the DN Illawarra Local and the Up Illawarra Local, you failed to follow safety policies, procedures and guidelines that apply to your work including failing to carry out your duties safely and reasonably and adequately assess and plan. The particulars of the allegations are:

(1) During the course of planning and carrying about the work, you utilized the 'Lookout Working' method of protection, in locations that did not have sufficient Minimum Warning Time (MWT) and or Minimum Sighting Distance (MSD) to carry out the work.

(2) At or around 10.00am, at approximately 13.800 km on the city end of Allawah Station, whilst taking track measurements on Up and Down Illawarra Local lines, you 'missed' a warning light and failed to provide adequate warning to the Work Group to 'jump out of the way' of the approaching train.

(3) Subsequently, you failed to stop work and implement appropriate control measures.

(4) You failed to compile or make any form of formal incident report of this incident at the time these incidents occurred, in accordance with the Network Rules.

(5) At approximately 11.46.23hrs, while the Work Group were near the country end of Kogarah station, you failed to take care of the health and safety of yourself and others in your Work Group by allowing work to continue, despite the lack of MWT and MSD, leading to Work Group Leader Mr Cane Kolevski being forced to run across the Down Illawarra Line reaching a safe place at 11.46.26hr, approximately two seconds before train service 900 passed by the spot where Mr Kolevski was working, resulting in a near miss.

[10] As earlier stated, Mr Singh was subsequently dismissed effective from 30 November 2016 on the basis of the above allegation. It is to be noted that another member of Mr Singh's team was dismissed, two others were demoted, and Mr Andrew Lynn, the Technical Supervisor in the team, was reprimanded.

[11] The Deputy President set out in detail in the Decision the evidence given by the parties' respective witnesses, including that of Mr Lynn (called by Sydney Trains) and Mr Singh. After summarising the submissions, the Deputy President commenced his consideration of the matter by assessing the credit of Mr Singh as a witness. The Deputy President found, among other things, that Mr Singh's answers given in cross-examination were "...meandering, deflective... argumentative or unresponsive...";[5] that the entirety of his evidence was "designed and constructed" to support his position that he had done nothing wrong;[6] that his "dogged refusal to accept any responsibility for the events that day [i.e. 1 August 2015] entirely coloured his approach to answering questions which even hinted he might have had some culpability";[7] and that Mr Singh had to "reconstruct his case in order to fit the narrative of his insistence of innocence and in light of compelling corroborative evidence which did not help his case."[8] The Deputy President identified nine categories of examples from Mr Singh's evidence which, he said, demonstrated that Mr Singh's "spin" on the incidents of 1 August 2015 was "simply not believable".[9] The first example was as follows:

"Perhaps the most concerning of all, in a classic worst case of 'cherry picking', was Mr Singh's 'enthusiastic embrace' of the Level 3 Report where it was critical of systemic failures, or of others in the Team, but his complete rejection of any comment or finding which was critical of him. He justified this by saying Ms Walker was not there and when he said: 'she's not God'. I simply do not understand how it could seriously be suggested that the Commission would accept this selective, illogical and incoherent reading of the Level 3 Report."

[12] The Deputy President then turned to a consideration of the matters required to be taken into account under s 387 of the FW Act. In relation to whether there was a valid reason for the dismissal, the Deputy President outlined the applicable principles in a non-controversial way[10] and then said:

"[332] It will be evident from the earlier discourse, that I reject Mr Singh's evidence as to his minimal role in the incidents on 1 August 2015. His evidence is not credible or believable. His testimony is riddled with unsubstantiated bravado, inconsistencies and improbabilities, rather than a full, frank and honest account of the events that day. I rely particularly on the evidence of the Level 3 Report and the Report of the Regulator. Moreover, I accept the evidence of Mr Lynn as to the events of that day where it conflicts with the evidence of Mr Singh. I am satisfied that on 1 August 2015, in Mr Singh's capacity as Team Leader and nominated Lookout for a Team assigned to complete planned track measurements on rail lines at Kogarah and Allawah, Mr Singh failed to follow safety policies, procedures and guidelines that applied to his work, including failing to carry out his duties safely and reasonably and adequately assessing and planning. The specific allegations, as set out in the 'Show Cause' letter of 5 August 2016, have been proven, on the balance of probabilities. Accordingly, I am satisfied there was a valid reason for Mr Singh's dismissal."

[13] The Deputy President then considered the other matters specified in s 387. It is only necessary for present purposes to refer to the Deputy President's consideration of s 387(b)-(g) to note that, in relation to paragraphs (f) and (g), the Deputy President criticised the lengthy period between the incidents on 1 August 2015 and the suspension of Mr Singh which immediately followed, and his dismissal effective from 30 November 2016.

[14] As to s 387(h), the Deputy President first rejected a submission that Mr Singh had been the subject of differential treatment, noting that it was premised on Mr Singh having done nothing wrong on 1 August 2015 and finding that Mr Lynn's conduct, which was ony the subject of a reprimand, was of a different kind.[11] The Deputy President then took into account Mr Singh's long period of exemplary service, his advanced age (76) and his unlikely prospects of alternative employment, but found that there matters did not outweigh the seriousness of the incidents on 1 August 2015 because Mr Singh as a long-serving employee would be expected to have known better.[12] The Deputy President then said:

"[346] Even if these 'harshness' elements tipped the balance in favour of an unfairness finding, Mr Singh seeks a remedy nothing short of full reinstatement. Reinstatement, in my view, would be utterly unthinkable in circumstances where he refuses to accept any responsibility at all for the incidents of 1 August 2015 and casts the entire blame on Sydney Trains and his fellow employees. There was not a skerrick of remorse - no regret for his actions - no apology - no contrition."

[15] After referring to the Full Bench decision in Hatwell v Esso Australia Pty Ltd,[13] the Deputy President said:

"[348] Given Mr Singh's own evidence, I could not be at all confident that he would not act in a similar way in similar circumstances, or take a similar cavalier approach to his responsibilities as Team Leader. He ignored his responsibilities as a PO4 for which he had been trained. He disregarded the cardinal safety policies and procedures of Sydney Trains, notwithstanding he claimed he had a good knowledge and awareness of them. His belligerent denial of any wrongdoing is so gravely concerning, that I am satisfied the employer's trust and confidence in him has been permanently destroyed."

[16] The Deputy President then concluded that Mr Singh's dismissal was neither harsh, unfair nor unreasonable, and dismissed his application.[14]

[17] Mr Singh submitted that the decision was infected by error, including jurisdictional error, in five respects, and that the appeal raised for consideration matters of principle and issues of general significance in respect of the Commission's jurisdiction under Pt 3-2 of the FW Act such as to warrant the grant of permission to appeal in the public interest. The five heads of alleged error, and the submissions made in relation to each of them, may be summarised as follows:

(1) Failure to give adequate reasons and address centrally relevant submissions made by Mr Singh: Mr Singh's evidence was criticised, but no critique or analysis was made in the Decision of Sydney Trains' witnesses notwithstanding detailed submissions having been made about the deficiencies in their evidence. There was no proper analysis of the five particulars, and they were dealt with in a single paragraph. Mr Singh's detailed submissions about each particular were not addressed. Mr Singh's credit was irrelevant to a number of the particulars. The Deputy President was required to give adequate reasons which identified the basis for the decision reached and the extent to which the submissions were understood and accepted or rejected. This was not done.

(2) Failure to identify the seriousness/gravity of the misconduct: In order to determine whether conduct is sufficiently serious to justify dismissal such as to constitute a valid reason under s 387(a), or whether a dismissal is harsh because it is disproportionate to established misconduct, it is necessary to make findings about the seriousness or gravity of the conduct. The Deputy President did not do this.

(3) Error of principle/taking into account an irrelevant consideration in assessing harshness: The Deputy President considered and made a finding about the appropriateness of the remedy of reinstatement in considering whether the dismissal was harsh. This was not relevant to a consideration of whether the dismissal was unfair, and accordingly the Deputy President misconstrued and misapplied s 387(h).

(4) Failure to take into account the inordinate delay between suspension and dismissal: The Deputy President failed to consider the 16-month delay between suspension and dismissal, and the adverse effect this had on Mr Singh, as a relevant matter under s 387(h). Rather, the Deputy President dealt with it under s 387(f)-(g), which involved a misconception as to the nature of Mr Singh's case.

(5) Significant errors of fact concerning the five particulars: The first allegation was refuted by Sydney Trains' own witnesses, who said that the lookout method was appropriate. The second allegation was the result of Mr Singh seeking to prevent a colleague from engaging in unsafe work and, at its highest, involved a momentary lapse and a mistake of judgment. The third and fourth allegation were premised on there being a near miss, which was not the contemporaneous account of the train driver and not the way the incident was labelled by Sydney Trains, and was in any event reported to the Network Controller. The fifth allegation was refuted by Sydney Trains' own witness. These constituted significant errors of fact.

[18] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[15] There is no right to appeal and an appeal may only be made with the permission of the Commission.

[19] This appeal is one to which s 400 of the FW Act applies. Section 400 of the FW Act provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[20] In the Federal Court Full Court decision of Coal & Allied Mining Services Pty Ltd v Lawler and others,[16] Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 of the FW Act as "a stringent one."[17] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[18]

[21] A Full Bench of the Commission, in GlaxoSmithKline Australia Pty Ltd v Makin, identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters".[19]

[22] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[20] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[21]

[23] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[22] Our task is to determine whether there is an arguable case of appealable error and an apparent public interest in hearing an appeal on the merits. However, it is still necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

[24] In assessing whether Mr Singh's appeal grounds are sufficiently arguable such as to render the grant of permission to appeal in the public interest, it is necessary to recognise the importance of the Level 3 Report in the proceedings below and in the Decision. As earlier stated, following the incidents on 1 August 2015, Sydney Trains conducted an intensive investigation which led to the Level 3 Report being produced. The findings and conclusions of the Level 3 Report relevant to Mr Singh included the following:

• "Lookout Working" was an inappropriate method of protection for significant sections of the track covered by the team's task on 1 August 2015 where it was prohibited by the Hazardous Locations Register, and a higher level of protection should have been used. This method was determined by the Protection Officer, and was not challenged by the four other qualified Protection Officers in the group (of which Mr Singh was one).

• The Allawah incident was described as one where a train driver reported seeing a worker on the track without warning who had to jump out of the train's way.

• The Team Leader was acting as "Up Lookout" at the time, but missed the warning light for the approaching train. That was his only task in that role.

• Notwithstanding that the driver did not deem it to be a formal "near miss", it met the criteria for a "near miss", being a "High Potential Incident" (a worker safety incident where the likely and credible outcome could have been a fatality or permanent disability). All the members of the team should have been aware of this.

• After the incident, the incident should have been reported, work stopped and the incident investigated. This did not occur. The Team Leader (Mr Singh) had a high level of responsibility to report the incident and did not, which was understandable as he was the person who missed the warning light. Instead work was allowed to continue.

• If the Allawah incident had been reported and investigated appropriately, it was likely that work would have been modified in a way that would have avoided the Kogarah incident.

• The Kogarah incident was described as one in which an infrastructure worker was "nearly struck" by an unscheduled train service. The worker was about 70 metres away on the track when observed.

• The work group and other team members had a four year history of similar incidents that had resulted in retraining and coaching.

[25] As earlier stated, the Level 3 Report also identified systemic failings and culpability on the part of other persons as contributing to the causation of the incidents.

[26] As recorded in the Decision, Mr Singh relied upon the content of the Level 3 Report as being balanced, helpful and reliable - except where it made adverse findings concerning his own conduct. In those respects only, Mr Singh sought to contradict the findings of the report through his own evidence and through the cross-examination of Sydney Trains witnesses who had no role in the preparation of the report. For the reasons identified in the Decision, that position was simply not credible. Mr Singh's own self-exculpatory evidence was not accepted by the Deputy President who, with the advantage of seeing and hearing Mr Singh's evidence as it was given, found that he was not a witness of credit. The Deputy President gave very detailed reasons for reaching that conclusion. That credit finding was not challenged in Mr Singh's notice of appeal. Having perused the transcript of Mr Singh's evidence, we entirely agree with that finding.

[27] In the circumstances described, it was open for the Deputy President to proceed upon the findings and conclusions of the Level 3 Report. Mr Singh's notice of appeal did not contend for any contrary conclusion. As can be seen from our summary of the relevant aspects of the Level 3 Report, it supports each of the five particulars of the allegation of misconduct which formed the basis of Mr Singh's dismissal. Indeed, it appears that the particulars of the allegation were drawn from that report.

[28] As is apparent from paragraph [332] of the Decision, the Deputy President's finding that there was a valid reason for Mr Singh's dismissal was founded on his acceptance of the report and his rejection of the evidence of Mr Singh, together with his acceptance of the evidence of Mr Lynn where it conflicted with that of Mr Singh. We are satisfied ourselves that this finding was properly founded on the evidence and was the correct finding.

[29] Bearing these matters in mind, we turn to Mr Singh's appeal grounds. As to the first ground, we consider on the basis just explained that the Deputy President's reasoning as to why he found that there was valid reason for dismissal is clear, once it is read with his earlier detailed reasons for rejecting Mr Singh's evidence both specifically vis-a-vis the Level 3 Report and generally. Arguably, the Deputy President could have stated in greater detail why he rejected the submissions of Mr Singh in respect of each particular, but it is implicit that he adopted the analysis in the Level 3 Report and consequently rejected any analysis inconsistent with this. Even if there was any inadequacy in the Deputy President's reasons, there is no reasonable possibility that a different result could pertain in a re-hearing of the matter. In that sense, the grant of permission to appeal would not be of utility.

[30] In relation to the second appeal ground, the Decision from the outset treated the matter as involving an assessment of Mr Singh's culpability as an experienced employee in two serious safety incidents. Those incidents self-evidently involved a risk of death or serious injury. The proposition that there was some question needing to be determined about the seriousness or gravity of the finding of misconduct on Mr Singh's part in relation to these incidents is surprising. It has no substantive merit.

[31] In relation to the third appeal ground, we accept that it was not relevant to consider pursuant to s 387(h) whether the remedy of reinstatement was available, as the Deputy President did in paragraphs [346]-[348]. However, at paragraph [345], the Deputy President had already considered those matters which were relevant under s 387(h) and made a finding that the dismissal was not harsh. Thus paragraphs [346]-[348] were merely a frolic and not material to the outcome determined by the Deputy President. In relation to the fourth ground, it is not clear to us why the delay between suspension and dismissal, although worthy of criticism, could be relevant to or demonstrative of unfairness in the subsequent dismissal. On one view, Sydney Trains' foot-dragging benefitted Mr Singh by giving a period of income to which he would not have been entitled had it proceeded more expeditiously. Finally, as to the fifth ground, we are not satisfied that there is any reasonably arguable contention of factual error in respect of any of the five particulars of misconduct once regard is had to the reasoning and conclusions in the Level 3 Report and Mr Singh's failure to advance any credible case for the rejection of the adverse findings in that report.

[32] Mr Singh's case proceeded and was determined upon its own particular facts. We do not consider that it raises any issue on novelty or general application or raises any question of principle, or that it was counter-intuitive or manifested any injustice.

[33] For the reasons given, we do not consider that the grant of permission to appeal against the Decision would be in the public interest. Accordingly, permission to appeal against the Decision must be refused in accordance with s 400(1) of the FW Act.

[34] Mr Singh's appeal against the costs decision remains to be determined, and will now be listed for hearing.

P Boncardo of counsel with J Kennedy on behalf of Mr Singh.

M Seck of counsel with A Sharp on behalf of Sydney Trains.

[1] [2019] FWC 182

[2] [2017] FWC 4015

[3] [2017] FWCFB 4562

[4] [2019] FWC 6620

[5] [2019] FWC 182 at [316]

[13] [2019] FWCFB 2895

[14] [2019] FWC 182 at [351]

[15] This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2) of the FW Act; see Coal and Allied v AIRC [2000] HCA 47, 203 CLR 194, 74 ALJR 1348, 174 ALR 585, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ

[16] [2011] FCAFC 54, 192 FCR 78, 207 IR 177

[18] O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210, 64 ALJR, 89 ALR 71 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506, 85 ALJR 398, 275 ALR 408 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]- [46]

[19] [2010] FWAFB 5343, 197 IR 266 at [27]

[20] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]

[21] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; New South Wales Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28]

[22] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]

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