1
Fair Work Act 2009
s.604 - Appeal of decisions
H.J. Heinz Company Australia Ltd
v
Debbie Green
(C2014/4890)
H.J. Heinz Company Australia Ltd
v
Sharon Crilly
(C2014/4892)
VICE PRESIDENT WATSON
DEPUTY PRESIDENT HAMILTON
COMMISSIONER JOHNS
MELBOURNE, 9 SEPTEMBER 2014
Appeal against decision [[2014] FWC 3402] of Commissioner Wilson at Shepparton on 22
May 2014 in matter number U2014/36 - Appeal against decision [[2014]FWC 3402] of
Commissioner Wilson at Shepparton on 22 May 2014 in matter number U2014/37 -
Permission to appeal - Whether grounds of appeal attract the public interest - Permission to
appeal not granted - Fair Work Act 2009 - s.394, s.400, s.604.
Introduction
[1] This decision concerns an application for permission to appeal against a decision of
Commissioner Wilson handed down on 22 May 2014. The decision of the Commissioner
concerned unfair dismissal applications made by Debbie Green and Sharon Crilly under s.394
of the Fair Work Act 2009 (the Act) in relation to the termination of their employment by H.J.
Heinz Company Australia Ltd (Heinz).
[2] At the hearing of the matter Mr A. McNab, of counsel and Ms J. Tiffin appeared on
behalf of Heinz and Mr B. Terzic and Mr J. Wieladek appeared on behalf of both Ms Green
and Ms Crilly.
Background
[3] The background circumstances are conveniently summarised in the Commissioner’s
decision as follows:
[2014] FWCFB 6031
DECISION
E AUSTRALIA FairWork Commission
[2014] FWCFB 6031
2
“[9] On 4 and 5 December 2013, Ms Green and Crilly were working a night shift.
They are friends who work closely alongside each other and both are smokers.
[10] The Heinz plant is a non-smoking plant, so when a staff member wants to smoke
a cigarette they must leave the factory and exit the plant through a secure perimeter
gate, which is around 80m from the front door of the plant that serves as an entrance
for the plant’s factory and its offices. There is a smokers’ “hut” adjacent to the secure
perimeter gate, which is rather like a picnic shelter found in recreation parks. The
smokers’ hut consists of a roof; rear and side wind barriers; a table and connected
benches; and a large industrial ashtray. The front side of the hut facing the factory is
open to the elements and more or less in a direct line from the plant’s front door
although that line is partly obscured by a small shrub. Within a few metres of the rear
of the hut is the staff car park, which is well-lit with large commercial flood-lights.
[11] When this decision refers to the “car park”, that is a reference to not only the car
park itself, but the smokers’ hut as well, unless the context indicates otherwise. When
this decision refers to the term ‘smoko’, that is a reference to what the parties plainly
see as a work break.
[12] Not long after 5am on 5 December, Ms Green and Ms Crilly left the plant and
exited through the secure perimeter gate. Why they left the plant and what they did is
controversial.
[13] They were seen to have left by at least one other employee, Mr Les Middlebrook.
Another employee, Mr Gary Howarth, also claims to have seen them leave.
[14] Shortly before they left the plant, Ms Green and Ms Crilly were spoken to by Mr
Watts. What was said, and where he spoke with them is contested; however there is no
contest that he thought they may have been going for an unauthorised smoko and that
he asked them that, which they denied. The parties agree that Heinz employees may
have four breaks per shift. A fifth would be unauthorised, potentially leaving
employees open to disciplinary action if they took one.
[15] On Mr Middlebrook’s and Mr Howarth’s evidence Ms Green and Ms Crilly were
seen outside of the plant, and in the smokers’ hut, and it looked to Mr Middlebrook
like the women were having a cigarette.
[16] After Ms Green and Ms Crilly returned to the premises, and after each doing
other things for a short while, they spoke with Mr Watts. Ms Green’s and Ms Crilly’s
evidence (of which there is no alternative version) is that Ms Crilly went to the toilet
and Ms Green went to her locker. When they spoke with Mr Watts, he asked them
about their reason for leaving the premises. Again there is a contest on the evidence
relating to this discussion.
[17] The night shift finished shortly after and the relevant staff were not scheduled to
work again until Monday 9 December.
[2014] FWCFB 6031
3
[18] Overall, Ms Green and Ms Crilly explain their absence from the plant due to Ms
Crilly’s medical condition. The condition sometimes requires unexpected access to
certain supplies, and it is Ms Crilly’s evidence that this was the case on 5 December.
She thought she had enough supplies in her locker to get through the shift, but by 5 am
this proved incorrect. Ms Crilly spoke about this with Ms Green, who is a first aid
officer and has a box of first aid supplies and equipment in the boot of her car, parked
that night in the Heinz car park through the secure perimeter gate. Ms Green said to
Ms Crilly that she might have supplies in her first aid kit, which led to them both
leaving the plant.
[19] On Monday 9 December, Mr Les Middlebrook, a Cook/Kitchen Operator with
Heinz Echuca went to see Mr Lester Gilmore, Human Resources/Continuous
Improvement and Operational Risk Manager, at the same site. Mr Middlebrook told
Mr Gilmore that, with reference to the night shift on 4 and 5 December, Ms Green and
Ms Crilly “had taken a 5th break at approximately 5:00 am and that he and Gary
Howarth had witnessed them sitting in the smokers’ hut”. This observation followed a
prior warning on the night of 4 and 5 December given by Mr Middlebrook to the
Applicants’ team leader, Mr Brian Watts. The precise nature of the warning and the
level of suspicion it might create is disputed.”
[4] Following an investigation into the events on that evening both Ms Green and Ms
Crilly were dismissed. In the unfair dismissal case the Commissioner concluded as follows:
“[82] This case falls to be determined on the competing versions of events as set out in
the evidence. That evidence shows inconsistencies and implausibilities in the versions
of events as given by Mr Watts, Mr Middlebrook and Mr Howarth, which in turn
cause there to be, at the least, serious questions about the integrity of other parts of
their evidence. As a result, I am unable to prefer their evidence to that of the
Applicants.
[83] Because of this, I find the evidence given in these proceeding shows the
following;
Ms Crilly needed the supplies for her medical condition referred to previously,
and Ms Green thought she had some in her car boot. They each saw leaving the
plant to search for them in Ms Green’s car as a solution to the problem.
It is likely that Mr Middlebrook did speak with Mr Watts prior to 5:00 am
about the possibility that various people may try to “sneak other breaks in” and
it is likely that he named the Applicants along with “a few other names”. There
is no evidence that would support the view that Mr Middlebrook did not speak
with Mr Watts about these things, and so I do not make such a finding.
Objectively, Mr Middlebrook’s conversation with Mr Watts was not a pointed
warning of prior knowledge on Mr Middlebrook’s part, and it was not taken
that way by Mr Watts. At best, it was put forward by Mr Middlebrook and
taken as such by Mr Watts as a general warning along the lines of “watch out
for this practice; certain people will try you on”.
Mr Watts did not chase after the Applicants after they passed his office,
instead, the balance of probabilities suggests that he passed them going the
[2014] FWCFB 6031
4
other way. I find also that he did not ask the Applicants the suspicion laden
question “what are you guys doing?”, followed by the challenge that “you have
already had 4 breaks”. Rather, it is consistent with the evidence elsewhere and
his own conduct that he asked them the less suspicious question “are you going
for another smoko?” and did not challenge them further when they replied they
were not, and did not say anything further. Mr Watts’ evidence of this
interaction has been embellished by him.
Mr Middlebrook saw the Applicants leave the premises when he was in the
canteen.
I do not accept Mr Middlebrook’s evidence that he saw the Applicants sitting
in the smokers’ hut. His statements to Mr Gilmore and in his witness statement
evidence about the nature of his prior warning to Mr Watts were embellished
and he subsequently retreated from them in cross-examination. As a result, it is
likely on the balance of probabilities that his evidence in regard to viewing the
Applicants in the smokers’ hut is embellished at the least. Since I have not
accepted Mr Howarth’s evidence that he was in the canteen at the time the
Applicants were leaving the plant, or that he was subsequently in the planning
room, I also regard as unreliable Mr Middlebrook’s evidence of being with Mr
Howarth in either place.
I do not accept Mr Howarth’s evidence that he was in the canteen when the
Applicants were leaving the plant. The times recorded in his witness statement
are inconsistent with the times given by Mr Middlebrook about his presence in
the canteen and that of Mr Howarth. They are also inconsistent with the times
he referred to in his oral evidence which appear to have been adjusted to fit the
other aspects of his evidence. Since I do not accept this aspect of his evidence,
I also do not accept his evidence that he saw the Applicants in the smokers’
hut. He was most likely not in the planning room at the time the Applicants
were in the car park.
The balance of probabilities draws me to find that when the Applicants were in
the car park, they accessed Ms Green’s car boot for the supplies needed by Ms
Crilly.
When they returned, the Applicants spoke with Mr Watts, however Ms Green
did not ask “are we in trouble”. Instead, it is consistent with the balance of
probabilities and Mr Watts’ evidence of his subsequent conduct that he asked
“did you guys have five smokos?’ to which the Applicants replied they had
not.
While Mr Watts does not recall saying anything contemporaneously to Mr
Middlebrook about this alleged return conversation, he must have said
something to him before Mr Middlebrook reported the Applicants to Mr
Gilmore.
[84] As a result, and in consideration of the criterion set out in s.387(a) of the Act, I
find there was not a valid reason for Heinz to dismiss either Ms Green or Ms Crilly
related to their capacity or conduct (including its effect on the safety and welfare of
other employees).
[85] In addition to the criteria of “valid reason”, s.387 requires the commission to take
into account a number of other criteria in order to be satisfied that a dismissal was
harsh, unjust or unreasonable. I am satisfied on the evidence that the further criteria set
[2014] FWCFB 6031
5
out in s.387 have been either adequately met in favour of Heinz or are not relevant to
my consideration. In particular, I am satisfied that;
Heinz notified each Applicant of the reasons it held for dismissal both in the
course of its investigation and at the time of dismissal (s.387(b));
Heinz allowed each Applicant to respond to the allegations and have a support
person with them during each relevant part of the investigation (s.387(c) and
(d));
the reasons put forward by Heinz did not relate to unsatisfactory performance
by either Applicant (s.387(e));
the size of Heinz’s enterprise did not impact on the procedures it followed in
effecting the Applicants’ dismissals and that the company had adequate access
to dedicated human resource specialists or expertise in deciding the procedures
to be followed in effecting the dismissal (s.387(f) and (g)); and
there are no other matters I consider relevant in my assessment under this
section (s.387(h)).
[86] For the reason that I have found Heinz did not have a valid reason for their
dismissal, I find that Ms Green and Ms Crilly were unfairly dismissed within the
meaning of s.385, for the reason their dismissals were harsh, unjust or unreasonable. I
am also satisfied that it is appropriate for a remedy to be ordered by the Commission
in relation to their dismissals.”
[5] In relation to remedy the Commissioner concluded:
“[101] In considering whether reinstatement is inappropriate, I have given
consideration to the attitude and levels of cooperation shown by each Applicant
toward the Heinz’s investigation and to the giving of evidence in these proceedings.
Ms Green did not volunteer information she had to the investigation about why it was
necessary for her and Ms Crilly to leave the plant (as she did not to Mr Watts). Her
answers in cross-examination to questions about this subject were inadequate and her
evidence appeared combative at times. While Ms Crilly was more accommodating in
giving evidence, she was of no greater assistance in the Heinz investigation than Ms
Green. After considering all of the evidence in the matter, I formed the view that these
behaviours on the part of both Applicants likely had been accumulated over time and
likely associated with poor relationships between them and some of the other staff
involved in giving evidence.
[102] Likewise, I have formed the view that the evidence does not show that
reinstatement cannot succeed, or that the factors referred to within either Perkins or
Colson v Barwon Health No. 2 in relation to the consideration of mutual trust and
confidence, mean that reinstatement cannot succeed, or that it is otherwise
inappropriate.
[103] Further, the evidence of Ms Tiffin and Mr Gilmore in relation to the asserted
loss of mutual trust and confidence does not show to a sufficient standard that Heinz
cannot have trust and confidence in either Applicant upon reinstatement. Considered
objectively, their witness statements references to mutual trust and confidence having
[2014] FWCFB 6031
6
gone is a justification of Heinz’s actions rather than evidence that would support their
assertions.
[104] Viewed objectively, and after taking into account the circumstances of the
matters before me, I am persuaded that there is sufficient trust to make a reinstated
relationship viable and productive.
[105] I have taken into account that the Heinz Echuca plant is relatively large, with
different shift rotations and there is likely sufficient human resource management and
other support available to minimise such friction as may arise. I do not consider the
time elapsed since the date of dismissal to be a factor that would make reinstatement
inappropriate, or that elapsed time in conjunction with other factors would make
reinstatement inappropriate.
[106] In all the circumstances I am satisfied that it is appropriate that there be an Order
pursuant to s.391(1)(a) requiring Heinz to reinstate each of Ms Green and Ms Crilly
by reappointing each person to the position in which they were employed immediately
before the dismissal.”
[6] The Commissioner also made an order for continuity of employment and payment of
lost remuneration arising from the dismissals.
The Appeal and Grounds of Appeal
[7] An appeal in relation to an unfair dismissal matter is governed by the provisions of
s.604 and s.400 of the Act. Section 604 of the Act deals with appeals generally. These
requirements are modified with respect to unfair dismissal appeals by s.400 of the Act, which
provides:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a
decision made by FWA under this Part unless FWA 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.”
[8] The test for determining whether it is in the public interest to grant permission to
appeal has been described as follows: 1
“[26] Appeals have lain on the ground that it is in the public interest that leave should
be granted in the predecessors to the Act for decades. It has not been considered useful
or appropriate to define the concept in other than the most general terms and we do not
intend to do so. The expression ‘in the public interest’, when used in a statute,
classically imports a discretionary value judgment to be made to be made by reference
to undefined factual matters, confined only by the objects of the legislation in question.
[2014] FWCFB 6031
7
[Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing
O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although 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, it seems to us that none of those elements is present in
this case.”
[9] The decision under appeal is of a discretionary nature. Such a decision can only be
challenged on appeal if it is shown that the discretion was not exercised correctly.2 It is not
open to an appeal bench to substitute its view on the matters that fell for determination before
the Commissioner in the absence of error of an appealable nature in the decision at first
instance.
[10] As the High Court said in House v The King3:
“The manner in which an appeal against an exercise of discretion should be determined
is governed by established principles. It is not enough that the judges composing the
appellate court consider that, if they had been in the position of the primary judge, they
would have taken a different course. It must appear that some error has been made in
exercising the discretion. If the judge acts upon a wrong principle, if he allows
extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he
does not take into account some material consideration, then his determination should
be reviewed and the appellate court may exercise its own discretion in substitution for
his if it has the materials for doing so. It may not appear how the primary judge has
reached the result embodied in his order, but, if upon the facts it is unreasonable or
plainly unjust, the appellate court may infer that in some way there has been a failure
properly to exercise the discretion which the law reposes in the court of first instance.
In such a case, although the nature of the error may not be discoverable, the exercise of
the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[11] The grounds of appeal allege that the Commissioner’s decision is tainted by error
because:
“i. the Commissioner wrongly applied the Briginshaw test leading to a rejection of
evidence of Mr Watts, Mr Middlebrook and Mr Howarth (Grounds 1 and 2);
ii. the Commissioner had no or insufficient regard to the differences in the
Respondents’ response to the allegations, both in the versions given prior to the
termination of their employment and in their evidence to the Commission (Grounds 1
and 4);
iii. the Commissioner had no or insufficient regard to the evidence of Mr Middlebrook
and Mr Howath as to:
1. the persons who were present in the canteen immediately prior to the
Respondents leaving the premises; and
[2014] FWCFB 6031
8
2. the observation of the Respondents in the "smokers hut"
iv. the Commissioner found that Mr Middlebrook had embellished his evidence when
there was no proper basis for this finding (Grounds 1 and 7(a));
v. the Commissioner failed to have any or sufficient regard to the evidence of Mr
Gilmore which corroborated the evidence of Mr Middlebrook and Mr Howarth that
the "smokers hut" could be clearly seen from the office area (Grounds 1 and 7(b));
vi. the Commissioner failed to have any or sufficient regard to the fact that there was
no possibility of mistaken identity of the persons in the "smokers hut" as the
Respondents admitted there was no one else in the car park or the "smokers hut"
during the time they were outside of the gate (Grounds 1 and 7(c)); and
vii. the Commissioner failed to have any or sufficient regard to the inherent
unlikelihood of Mr Watts, Mr Middlebrook and Mr Howarth concocting their
evidence.”
[12] It is further contended that the Commissioner’s order of reinstatement was
inappropriate because:
“i. there was no basis in the evidence for the finding that there was sufficient trust to
make a reinstated relationship viable and productive (Ground 9);
ii. the Commissioner found that there was a fraught if not fragile relationship between
the Respondents, the Appellant and those working for the Appellant (Ground 3(a));
iii. the Commissioner found that the Respondents had not cooperated with the
investigation into the allegations against them (Ground 3(b)); and
iv. the Respondents would have to work closely with and be managed by persons
whose evidence the Commissioner had rejected in favour of the evidence given by
them (Ground 3(c)).”
[13] Further errors were alleged in supplementary written submissions including the
alleged failure “to weigh manifest defects in the Applicants’ evidence”.
Permission to Appeal
[14] We have considered the grounds of appeal and the allegations that there are errors in
the fact finding process adopted by the Commissioner. In so far as these grounds allege an
error in approach they involve the contention that the Commissioner misapplied the principles
in Briginshaw v Briginshaw4 in stating:
“[81] While the standard of proof in this matter is the balance of probabilities, regard
must be had to the nature of the issue under consideration. In these matters the issues
are whether the Applicants lied to their supervisor in leaving the premises and upon
return, and whether they lied in the subsequent investigation. In order to find these
[2014] FWCFB 6031
9
things, it is appropriate to bear in mind “a proper degree of satisfaction is required
having regard to the seriousness of the allegations”; per Budd v Dampier Salt Ltd.”
[15] It is alleged that the Commissioner did not apply the same degree of scrutiny to all of
the evidence. In Budd v Dampier Salt Ltd5 a Full Bench of the Australian Industrial Relations
Commission said the following in relation to Briginshaw v Briginshaw:
“[14] The second ground of appeal is that the Commissioner erred in the application
of the principle in Briginshaw. So far as relevant, that case decided two things. The
first is that where allegations are made in civil proceedings which, if proven, might
found criminal liability, the standard of proof remains the civil standard. It follows that
it is necessary that the court only be satisfied on the balance of probabilities. The
second thing is that in such a case a proper degree of satisfaction is required having
regard to the seriousness of the allegations. In the words of Dixon J., as he was: “The
nature of the issue necessarily affects the process by which reasonable satisfaction is
obtained.”
[15] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd the High Court pointed
out that care needs to be taken in applying what was said in Briginshaw. Furthermore,
it would be wrong, for example, to apply a standard of proof higher than the balance of
probabilities. Counsel for the appellant contended that the Commissioner failed to
have regard to the seriousness of the situation for the appellant in making findings of
fact as to what had occurred and in deciding that there were no extenuating
circumstances for the appellant's behaviour.
[16] In relation to fact finding, the Commissioner analyzed the evidence with care.
In making findings he indicated how the findings were reached, in particular why he
rejected some evidence and accepted other evidence. There was no error in the fact-
finding process. To the extent that this ground involves a contention that the
Commissioner did not exercise the statutory discretion properly it should also be
rejected. Briginshaw was a case concerned with the nature of findings about conduct.
It is potentially misleading and unnecessarily complicated to attempt to apply
Briginshaw to the exercise of judgement required once the findings about conduct
have been made. Section 652(3) specifies the way in which the discretion is to be
exercised and the matters to be taken into account. Loss of employment is a serious
matter and applications for a remedy are to be dealt with seriously. That the
Commissioner so regarded it in this case is clear from his decision. There is no basis
on which to conclude that the Commissioner's approach to the fact-finding process or
to the exercise of the discretion was erroneous because of anything said by the Court
in Briginshaw. The second ground of appeal must be rejected.”
(references omitted)
[17] In our view there is no error in the approach of the Commissioner to the fact finding
exercise he was required to undertake. He quoted and applied an appropriate Full Bench
authority on the relevance of the Briginshaw doctrine to unfair dismissal matters. In our view
his decision discloses that he assessed all of the evidence in an appropriate manner.
[18] The other alleged errors concern specific aspects of the Commissioner’s findings of
fact. The Commissioner’s decision is detailed and logically structured. It is evident that it is
http://www.westlaw.com.au/maf/wlau/app/document?&src=search&docguid=Id5c7e571a18311e099ddc9a8daf54a2f&epos=1&snippets=true&fcwh=true&startChunk=1&endChunk=1&nstid=std-anz-highlight&nsds=AUNZ_CASES&isTocNav=true&tocDs=AUNZ_CASES_TOC&context=5&extLink=false#FTN.5
http://www.westlaw.com.au/maf/wlau/app/document?&src=search&docguid=Id5c7e571a18311e099ddc9a8daf54a2f&epos=1&snippets=true&fcwh=true&startChunk=1&endChunk=1&nstid=std-anz-highlight&nsds=AUNZ_CASES&isTocNav=true&tocDs=AUNZ_CASES_TOC&context=5&extLink=false#FTN.4
[2014] FWCFB 6031
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based on the evidence given before him including his observations of the witnesses while
giving their evidence. His findings reflect a preference for the accounts of Ms Green and Ms
Crilly over other employees. As the High Court said in Devries v Australian National
Railways Commission6:
“10. More than once in recent years, this Court has pointed out that a finding of fact
by a trial judge, based on the credibility of a witness, is not to be set aside because an
appellate court thinks that the probabilities of the case are against - even strongly
against - that finding of fact (See Brunskill (1985), 59 ALJR 842; 62 ALR 53; Jones v
Hyde (1989), 63ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission
(1990), 171 CLR 167). If the trial judge's finding depends to any substantial degree on
the credibility of the witness, the finding must stand unless it can be shown that the
trial judge "has failed to use or has palpably misused his advantage" (S.S. Hontestroom
v. S.S. Sagaporack, [1927] AC 37, at p. 47) or has acted on evidence which was
"inconsistent with facts incontrovertibly established by the evidence" or which was
"glaringly improbable" (Brunskill (1985), 59 ALJR, at p. 844; 62 ALR, at p. 57).”
[19] The alleged errors of fact concern the veracity of evidence which was relied on by the
Commissioner to reach his conclusion that there was no valid reason for the dismissals. There
is no issue of principle involved in these grounds. Nor has it been demonstrated that the
findings manifest an injustice. It appears to us that the appeal grounds amount to an attempt to
re-argue the matters argued unsuccessfully before the Commissioner in an attempt to seek
alternative findings of fact.
[20] Heinz has not demonstrated that the appeal grounds overcome the hurdle involved in
demonstrating error in a discretionary decision based on the credibility of witnesses.
[21] In our view there is no basis to find that it is in the public interest to grant permission
to appeal in this case.
Conclusions
[22] As we have determined that it is not in the public interest to grant permission to
appeal, we decline to grant permission to appeal. The application for permission to appeal is
dismissed.
VICE PRESIDENT
Appearances:
[2014] FWCFB 6031
11
Mr A. McNab, of counsel and Ms J. Tiffin for H.J. Heinz Company Australia Ltd.
Mr B. Terzic and Mr J. Wieladek for Ms Green and Ms Crilly.
Hearing details:
2014.
Melbourne.
14 August.
Final written submissions:
H.J. Heinz Company Australia Ltd on 21 August 2014.
Ms Green and Ms Crilly on 28 August 2014.
Printed by authority of the Commonwealth Government Printer
Price code C, PR554949
1 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343.
2 House v The King (1936) 55 CLR 499 at [504]-[505] per Dixon, Evatt and McTiernan JJ.
3 Ibid.
4 (1938) 60 CLR 336.
5 (2007) 166 IR 407 at [14] - [16].
6 [1993] 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ.
http://www.fwc.gov.au/decisionssigned/html/2010fwafb5343.htm
