Moussalli v Western Power (No.3) [2010] FMCA 389 (4 June 2010)

Last Updated: 8 June 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOUSSALLI v WESTERN POWER (No.3)

[2010] FMCA 389

INDUSTRIAL LAW – Alleged unlawful termination of employment – temporary absence or illness – non-membership of a trade union – filing of a complaint or participation in proceedings and recourse to competent administrative authority – political opinion, national extraction or social origin. PRACTICE AND PROCEDURE – Application for summary dismissal – principles. PRACTICE AND PROCEDURE – INDUSTRIAL LAW – Alleged unlawful termination – onus of proof.

Evidence Act 1995 (Cth), s.56 Federal Magistrates Act 1999 (Cth), s.17A Workplace Relations Act 1996 (Cth), ss.240, 254, 659(2), 664, 717, 718, 719 Workplace Relations Regulations 2006 (Cth), reg. 2.12.8

Balding v Ten Talents Pty Ltd (2007) 162 IR 17; [2007] FMCA 145 Crowley v Parker Hannifin (Australia) Pty Ltd (2006) 154 IR 88; [2006] FCA 901 CSR Viridian Ltd (formerly Pilkington Australia Ltd) v Claveria (2008) 171 FCR 554; [2008] FCAFC 177 Goldman Sachs JB Were Services Pty Ltd v Nikolich (2007) 163 FCR 62; [2007] FCAFC 120 Hayward v Rohd Four Pty Ltd (2008) 177 IR 212; [2008] FMCA 1490 He v Lewin (2004) 137 FCR 266; [2004] FCAFC 161 Jennings v Salvation Army (Vic) Property Trust Inc (2003) 128 IR 366; [2003] FCA 1193 Moussalli v Western Power (No. 2) [2010] FMCA 374 Nikolich v Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784 Randall v Greyhound Australia Pty Ltd [2008] FMCA 1191 Rogers v Millennium Inorganic Chemicals Ltd & Anor (2009) 229 FLR 198; [2009] FMCA 1 Sallehpour v Frontier Software Pty Ltd (2005) 139 IR 457; [2005] FCA 247 Weerasinghe v Prism Grafix Pty Ltd (2009) 186 IR 330; [2009] FMCA 728 Zhang v Royal Australian Chemical Institute Inc (2005) 144 FCR 347; [2005] FCAFC 99

Applicant:

REEF MOUSSALLI

Respondent:

WESTERN POWER

File Number:

PEG 64 of 2009

Judgment of:

Lucev FM

Hearing date:

2 June 2010

Date of Last Submission:

2 June 2010

Delivered at:

Perth

Delivered on:

4 June 2010

REPRESENTATION

Counsel for the Applicant:

Mr S. Heathcote initially; later no appearance.

Counsel for the Respondent:

Ms E. M. Hartley and Ms P. Brooke

Solicitors for the Respondent:

Freehills

ORDERS

(1) That the respondent’s application in a case filed 17 May 2010, as amended by the Court’s order of 26 May 2010, be upheld.
(2) That the applicant’s application, as amended and filed 26 June 2009, be dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH

PEG 64 of 2009

REEF MOUSSALLI

Applicant

And

WESTERN POWER

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application in a case by the respondent, Western Power, to summarily dismiss the application of the applicant, Mr Moussalli, on the basis that the application has no reasonable prospect of success.
2. On 26 May 2010 the Court dismissed an application in a case by Mr Moussalli for an extension of time in which to comply with earlier orders of the Court. The application, if granted, would have had the effect of adjourning the substantive hearing of this matter listed for 8, 9 and 10 June 2010. At that time the summary dismissal application was listed for hearing on 2 June 2010.[1]

Appearances at the summary dismissal hearing

3. At the hearing of the summary dismissal application on 2 June 2010 Counsel initially appeared for Mr Moussalli. Counsel however appeared only to inform the Court that Mr Moussalli was not appearing, and to seek to put forward affidavit material indicating why that was the case. Counsel explained that in essence the affidavit material indicated that Mr Moussalli was unable to attend on medical grounds.[2]
4. In Moussalli (No. 2) the Court had made an order, bearing in mind the length of time which the proceedings had been on foot, the history of the matter, and the objects and purposes for which this Court is established, to the following effect:
   • (6) If any application is to be made to adjourn any future proceedings in this matter by the applicant on medical grounds, that application is to be supported by affidavit evidence from:
     • (a) the applicant’s treating General Practitioner; or
     • (b) a medical specialist,
     • and that treating General Practitioner or medical specialist must appear in person to be cross-examined on the affidavit if the respondent so requests.
5. The Court sought clarification from Counsel for Mr Moussalli as to whether any application was made to adjourn these proceedings. Twice Counsel said that his instructions were to advise the Court that Mr Moussalli was not appearing, and to indicate the reasons for that, and thrice said that there was no application made for the adjournment of the summary dismissal hearing.[3] In the circumstances, the Court indicated that the affidavits were therefore irrelevant, because there was no application before the Court in respect of which they might constitute relevant evidence.[4] Counsel sought and was given leave to be excused from the hearing shortly thereafter.[5]
6. The summary dismissal application proceeded in the absence of Mr Moussalli, or Counsel for him. The Court reminded Counsel for Western Power of her obligations to the Court in proceeding in Mr Moussalli’s absence.

Grounds of the application for summary dismissal

7. The application was originally filed as a no case to answer application, which was amended to a summary dismissal application under s.17A of the Federal Magistrates Act 1999 (Cth).[6]
8. The grounds for the summary dismissal application are set out in submissions filed with the application in a case filed on 17 May 2010 and in facts and contentions of law filed on 28 May 2010 in relation to the substantive hearing set down for 8, 9 and 10 June 2010.
9. Put shortly, Western Power’s case is that:
   1. Mr Moussalli has failed to provide evidence of material facts necessary to enliven the protections afforded under s.659(2) of the Workplace Relations Act 1996 (Cth);[7]
   2. as a consequence of the failure to adduce any evidence of the essential elements of the alleged contraventions of s.659(2)(a) of the WR Act Mr Moussalli is incapable of establishing the contraventions to the requisite standard required by the WR Act; and
   100. the matter can be determined on the basis of Mr Moussalli’s evidence because it does not establish the essential elements of the alleged contraventions of s.659(2) of the WR Act.

Summary dismissal – principles

10. The principles in relation to the summary dismissal of proceedings in this Court were set out in Balding v Ten Talents Pty Ltd.[8] In Ten Talents this Court observed as follows:
    • 15. Rule 13.10 of the FMCA Rules provides as follows:
      • “The Court may order that a proceeding by stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
        • (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or”
    • 16. The gist of r.13.10(a) is that there is
      • “no reasonable prospect of successfully prosecuting the proceeding or claim”.
    • 17. In a summary judgment context similar provisions appear in s.17A(1)(b) and (2)(b) of the Federal Magistrates Act 1999 (“FM Act”) and s.31A(1)(b) and (2)(b) of the Federal Court of Australia Act 1976 (“FCA Act”).
    • 18. The summary dismissal provisions in s.17A of the FM Act were specifically considered (and rule 13.10(a) of the FMC Rules also mentioned) in MG Distributions Pty Ltd & Ors v Khan & Anor (2006) 230 ALR 352; [2006] FMCA 666 (“MG Distribution”). In MG Distribution McInnis FM held that s.17A of the FM Act appears to lower the satisfaction threshold entitling this Court to dismiss a claim, but did not necessarily detract from well settled principles concerning summary dismissal. Thus, it was still appropriate to consider those principles in relation to the question of the no reasonable prospect of success test under s.17A of the FM Act, if there is a real question of fact or law to be determined upon which the rights of the parties depended. See MG Distribution, ALR at 360-361 and 361-262 per McInnis FM; FMCA at paras 37-39 and 42-44. The Court went on to observe that:
      • “summary dismissal ... remains a matter for careful consideration. There is a primary obligation on courts to permit parties to be heard even though there may appear to be strong arguments which have the potential to effectively defeat a claim or a defence.” ALR at 363 per McInnis FM; FMCA at para 45 per McInnis FM.
    • 19. Similarly, and having regard to the nature of this Court, its rules (albeit preceding r.13.10(a) of the FMC Rules in its current form), functions and “philosophy”, Lander J has observed that this Court ought be cautious, and not summarily dismiss a claim unless the matter be “clear, beyond any doubt”: Rana v University of South Australia [2004] FCA 559; (2004) 136 FCR 344 at 355; [2004] FCA 559 at para 75 (“Rana”).
    • 20. In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd: (2006) 70 IPR 146; [2006] FCA 1352 (“Boston Commercial”) Rares J gave detailed consideration to the phrase “no reasonable prospect of successfully prosecuting the proceeding” (in that case for the purposes of s. 31A of the FCA Act). Rares J noted that conceptually the test had “some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff.”: Boston Commercial IPR at 156 per Rares J; FCA at para 43 per Rares J. Reference was made to the decision of the Judicial Committee of the Privy Council: Hocking v Bell [(1947) [1947] HCA 54; 75 CLR 125 at 130-131 per Viscount Simon and Lords Porter, Uthwatt, De Pareq and Oaksey; approving of Latham CJ’s dissenting statement in the High Court in Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430 at 441-42 per Latham CJ (“Hocking (HC)”), where Latham CJ said:
      • “But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law.” Hocking (HC) at 441-442 per Latham CJ.
    • 21. Rares J went on to say that in s.31A cases
      • “where there is a real issue of fact to be decided in the sense identified in the above principle, (that is by Latham CJ in Hocking HC at 441-442) and, possibly where there is a real issue of law of a similar kind, it is obviously appropriate that the matter goes to trial.”: Boston Commercial IPR at 157 per Rares J; FCA at para 44 per Rares J.
    • 22. In Boston Commercial Rares J said that if there was, “contested evidence [which] might reasonably be believed one way or the other so as to enable one side or the other to succeed” then “the Court must be very cautious not to do a party an injustice by summarily dismissing”: IPR at 158 per Rares J, FCA at para 45 per Rares J. The purpose of the enactment was said by Rares J to be “to enable the Court to deal with matters which should not be litigated because there is no reasonable prospect of any outcome but one”: Boston Commercial IPR at 158 per Rares J; FCA at para 47 per Rares J. Thus the discretion to summarily dispose of the proceedings was not enlivened “[u]nless only one conclusion can be said to be reasonable”: Boston Commercial IPR at 157 per Rares J; FCA at para 45 per Rares J.
    • 23. In Boston Commercial Rares J also discussed a court’s ultimate aim as being the attainment of justice: Boston Commercial IPR at 158 per Rares J; FCA at para 46 per Rares J; citing Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 154 per Dawson, Gaudron and McHugh JJ, and “a key feature of the judicial power under Ch III of the Constitution” being that “the Court be in a position to, and in fact does, quell a controversy”: Boston Commercial IPR at 158 per Rares J; FCA at para 47 per Rares J.
    • 24. The summary dismissal of proceedings power might defeat, not advance, the attainment of justice, if used to prevent the substantive agitation of a controversy in which each side has a reasonable prospect of success: Boston Commercial IPR at 158 per Rares J; FCA at para 47 per Rares J.
    • 25. In Australian and International Pilots Association v Qantas Airways [2006] FCA 1441 (“Pilots Association”) Tracey J in the Federal Court considered Boston Commercial, and summarised Rares J’s conclusion as being that section 31A of the FC Act had lowered the barrier somewhat but that: “it nonetheless constituted a difficult obstacle for a respondent to surmount”: Pilots Association at para 23 per Tracey J. Tracey J specifically agreed with the principles set out by Rares J in Boston Commercial, and determined to act consistently with those principles in the application of section 31A: Pilots Association at para 23 per Tracey J.
    • 26. In Pilots Association Tracey J found that the applicant had no reasonable prospect of success and indicated that ordinarily that would justify the dismissal of the proceedings: Pilots Association at para 34 per Tracey J. However, because it was the first time the pleadings had been “subjected to curial scrutiny” Tracey J determined that the “preferable course” was to strike out the further amended Statement of Claim, and grant leave to file a further amended Statement of Claim: Pilots Association at para 34 per Tracey J. Whilst neither the reasons for judgment nor the order make it plain it seems that those orders must have been made under O.11r16 of the Federal Court Rules which Tracey J had adverted to when considering section 31A: Pilots Association at paras 23 and 34 per Tracey J.
    • 27. In the Federal Court in Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited (In Liq) (formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 Jacobson J said at para 30:
      • “The authorities relating to the proper construction and effect of s.31A of the Federal Court of Australia Act were exhaustively reviewed by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352 at [31]- [48]. His Honour stated the relevant principles at [45] and they may be summarised as follows:
        • In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.
        • There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.
        • Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.
        • Unless only one conclusion can be said to be reasonable, the discretion under s.31A cannot be enlivened.”
    • 28. In Duncan v Lipscombe Child Care Services Inc (2006) 150 IR 471; [2006] FCA 458 (“Duncan”) Heerey J in the Federal Court said:
      • “a fundamental change to the standard to be applied in strikeout applications has been introduced by s. 31A [of the FCA Act]”: Duncan IR at 473 per Heerey J; FCA at para 5 per Heerey J.
    • 29. Heerey J went on to say:
      • “Plainly s 31A was introduced to establish a lower standard for strikeouts (either of claims or defences) than that previously laid down by the High Court’s decision in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130, namely that the allegations are “so clearly untenable that [they] cannot possibly succeed)”: Duncan IR at 473 per Heerey J; FCA at para 6 per Heerey J.
    • 30. Heerey J went on to speak of the “former strikeout standard” and to describe s.31A of the FCA Act as “a clear, and different command” in the course of ordering that various paragraphs of the statement of claim be struck out.
    • 31. In the Federal Court in Fortron Automotive Treatments Pty Ltd v Jones (No. 2) [2006] FCA 1401 (“Fortron (No. 2)”) French J respectfully disagreed with the approach to s.31A of the FCA Act adopted by Heery J in Duncan. In Fortron (No. 2) at para 21 French J said:
      • “Section 31A is not a vehicle for simply striking out parts of pleadings that are deficient. Sections 31A allows for “judgment” or nothing. Alternative remedies with respect to deficient pleadings must be found in the rules of the Court.”
    • 32. This Court respectfully agrees with the views of French J cited above, and adopts them as applicable to summary dismissal applications under r.13.10(a) of the FMC Rules. This judgment or nothing approach must of course be appropriately exercised having regard to the principles established in Boston Commercial Services, and in the manner prescribed in MG Distribution and Rana.[9]
11. The Court adopts the above observations in Ten Talents as applicable to this case. The Court therefore adopts the “judgment or nothing” approach to the summary dismissal application, qualified in the manner set out above.

Amended claim and amended application

12. An amended claim and an amended application were filed on 26 June 2009. In the amended claim Mr Moussalli says he was employed as an engineer by Western Power from 7 March 1995 to 17 November 2008. Mr Moussalli attached to the amended claim the written notice of termination sent to him by Western Power on 17 November 2008. The gist of the termination letter is contained in the following paragraph:
    • You have been certified fit to return to work. I find your response to making yourself available to return to work unsatisfactory and after careful consideration have decided to terminate your employment, effective immediately.

Mr Moussalli was paid in lieu of notice along with entitlements. Mr Moussalli sought, by way of remedy, reinstatement, compensation and orders for training and rehabilitation for progressive return to work.

13. In the amended application the final orders sought are as follows:
    • 1. An order that I be reinstated and provided with counselling and rehabilitation for a gradual return to a work environment that meets my qualifications and experience, and resolution of the issues of the grievance that I lodged.
    • 2. An order that I receive compensation from the employer to the maximum amount under the Act, that the court thinks is appropriate.
    • 3. Suitable training (local or usa) to be provided by the employer, to the satisfaction of both parties, in relation to the new SCADA system mainframe or otherwise.
14. The grounds on which the amended application is made are as follows:
    • 1) The grounds of this application are some of the grounds listed under section 659 (2) of the Workplace Relations Act 1996, namely:
      • “ 2) Except as provided by subsection (3) or (4), an employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
        • (a) temporary absence from work because of illness or injury within the meaning of the regulations;
        • (b) non-membership of a trade union;
        • (e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
        • (f) political opinion, national extraction or social origin;”
    • 2) The grounds under section 659 (2) (e) are detailed as follows:
      • a) Participation In Proceedings
        • i) Worker’s Compensation Claim (Filed May 2008)
      • b) Filing of Complaints
        • i) Initial Grievance under the employer’s Fair Treatment System (FTS) against Roger Boxall and Sasha Barac (Dec 2004)
        • ii) Grievance (FTS) against Rod Newton (Aug 2006)
        • iii) Initial Grievance (FTS) against Rod Newton and David Liddle (Feb 2007)
        • iv) Formal Grievance (FTS) against Rod Newton, David Liddle and Human Resources (Dec 2007)
      • c) Violation of Employer’s Own Regulations
        • i) Failure to apply Fair Treatment System Policy
        • ii) Failure to include relevant documents to Personal File
        • iii) Failure to provide HR support personnel (~ June 06 to Dec 06)
        • iv) Failure of HR to provide requested FTS application related documentation
        • v) Failure of HR to provide requested policy documents in regard to return to work issues
        • vi) Failure of HR to follow correct process in terms of job applications (Aug 06, March 07, July 07)
        • vii) Failure of HR to follow up query regarding alleged questionable job application processes
        • viii) Failure of HR to provide pay slips and clarifications of my pay.
        • ix) Failure to follow up my request for pay of leave while on Worker’s Compensation awaiting Insurer’s decision.
      • d) Violation of Certified Agreement
        • - Dispute Settlement Procedure (Clause 9) of WESTERN POWER Salaried Employees Certified Agreement 2005.
      • e) Violation of Laws
        • i) Occupational Safety and Health Act 1984
          • – Workplace Bullying (Section 19 – Duties of Employer)
          • – Failure to Provide Rehabilitation
          • – Duty of Care
      • ii) Equal Opportunity Act 1984 (WA)
        • – Discrimination (other employees relocated)
        • – Victimisation (Section 67)
      • iii) Public Sector Management Act 1994
        • – Termination Letter
      • iv) Western Australian Public Sector Code of Ethics
        • v) Workers’ Compensation & Injury Management Act 1981
          • – Failure to pay me leave while decision of Insurer was pending.
          • – Failure to Assist Insurer in the investigations of my claim.
          • – Failure to provide Rehabilitation.
      • vi) Minimum Conditions of Employment Act 1993
      • vii) Employer’s Duty of Care
        • viii) Convention No. 158 of the International Labour Organisation
          • – Entitled: “Convention Concerning Termination of Employment at the Initiative of the Employer”
          • – Ratified by Australia.
          • – Indicative of standards of employment protections.
          • – Article 7: employee to be given opportunity to defend himself against allegation made.
15. Mr Moussalli has drafted the amended application with some specificity having regard to the various heads of claim available under s.659(2) of the WR Act. The manner of drafting, and the fact that it is an amended application, allow the Court to infer that Mr Moussalli was aware, at least to some degree, that the requirements of s.659(2) of the WR Act were quite detailed and specific.

Affidavit evidence

16. In determining this summary dismissal application the Court has had regard to four affidavits filed by Mr Moussalli. They are:
    1. Mr Moussalli’s affidavit sworn 20 April 2009 (in the Federal Court proceedings prior to transfer to this Court);[10]
    2. Mr Moussalli’s affidavit sworn 26 June 2009;[11]
    100. Mr Moussalli’s affidavit sworn 16 July 2009;[12] and
    4. Mr Moussalli’s affidavit of 17 August 2009.[13]
17. Mr Moussalli also had the opportunity to file further affidavit material on or before 1 March 2010 by reason of this Court’s orders of 1 February 2010. Mr Moussalli failed to avail himself of that opportunity.[14]

Relevant statutory provisions

18. The relevant statutory provisions in this case are ss.659(2) and 664 of the WR Act which provide as follows:
    • 659(2) Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
      • (a) temporary absence from work because of illness or injury within the meaning of the regulations;
      • (b) ...
      • (c) non-membership of a trade union;
      • (d) ...
      • (e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
      • (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
      • (g) ...
      • (h) ...
      • (i) ...
    • 664. In any proceedings under section 663 relating to a termination of employment in contravention of section 659 for a reason (a proscribed reason ) set out in a paragraph of subsection (2) of that section:
      • (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but
      • (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 659(3) or (4) applies).

Observations on the relevant statutory provisions

19. In Randall v Greyhound Australia Pty Ltd[15] this Court said that:
    • 112. There are three elements that must be established to succeed in a s.659(2) action:
      • a) the Respondent terminated the employment of the Applicant (termination of employment);
      • b) the Applicant had a particular attribute described in one of the paragraphs in subsection 659(2) (proscribed attribute); and
      • c) the Respondent terminated the Applicant’s employment by reason of the Applicant having the attribute, or for reasons that included that attribute as an operative reason (proscribed reason).[16]
20. In Hayward v Rohd Four Pty Ltd[17] this Court dealt with the onus of proof in cases such as this one, and said as follows:
    • 11. In my view, in proceedings under either Part 12 or Part 16 of the Act the applicant bears the legal onus of proving his or her case to the requisite civil standard. As will shortly be discussed, the respondent bears the evidential onus of proving a negative, regarding the reason or reasons for termination of employment. That is, in the absence of the employer proving that the reason for termination of employment was not for a proscribed reason, under either s.659(2) or 793(1) of the Act, it is not necessary for the employee to prove such facts; they are presumed in his favour.
    • 12. What then does the applicant have to prove, before the evidential onus shifts to the respondent? In my view, quite clearly an applicant will have to prove that:
      • (a) He or she is an employee; and
      • (b) His or her employment has been terminated.
    • 13. Is it then sufficient for the employee to simply allege that the employment was terminated for one or more of the proscribed reasons in s.659(2) or s.793(1) of the Act or is something more required?
    • 14. Common sense dictates that, at the least, the applicant must identify those reasons under either s.659(2) or 793(1) that are alleged to have formed the contravening conduct. In a case with pleadings, such particulars would be ordered as a matter of course. Otherwise a respondent would have to devote resources to proving a negative that could never arise on the facts.

...

• 17. In Bahonko v Sterjov [2007] FCA 1244 Jessup J said:
  • “95 The applicant relies upon s 170CQ of the WR Act. At the relevant time, it provided:
    • In any proceeding under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section:
      • (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but
      • (b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies).
  • Although it is well-established that the effect of this provision is to reverse the onus of proof on the matter of reason under s 170CK(2), there is an aspect of the operation of s 170CQ of the WR Act which has been little discussed in the cases, but which is of some importance in the present matter, largely because there is no evidence as to the applicant’s political opinion, social origin or physical or mental disability. Notwithstanding that she has not proved those matters, is the applicant entitled to rely upon s 170CQ merely by alleging that she was dismissed because of those reasons, or one or more of them?
  • 96 There were two distinct groups of provisions of the WR Act which used "reverse onus" sections in circumstances where the reason for which an act was done was part of the legislative prohibition. One group was that with which this proceeding is concerned, s 170CK(2)(f). For the sake of convenience, I shall call that paragraph the anti-discrimination provision. The other group was to be found in Part XA of the WR Act, which I shall call the anti-victimisation provisions. The latter group had its origins in s 5 of the Conciliation and Arbitration Act 1904 (Cth). That section created a prohibition, as part of the criminal law, upon employers taking specified action against their employees for the reason that the employees were union members or officers, or in other specified respects involved in union activities. Under s 5(4) of the 1904 Act,
    • ... if all the facts and circumstances constituting the offence, other than the reason for the defendant’s action, are proved, it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge.
  • Under that provision, it lay upon the prosecutor to prove the existence of the factual circumstance alleged to provide the basis of the defendant’s reasons for dismissal. For example, if it were alleged that an employee had been dismissed because of his or her union membership, it was for the prosecutor to prove that the employee was a union member; by s 5(4) it then lay upon the defendant to prove that that circumstance was not the reason why the employee had been dismissed. Examples of informations which were dismissed because the prosecution had failed to prove the existence of the circumstance said to provide the basis of the defendant’s reason may be seen in Heidt v Chrysler Australia Limited (1976) 26 FLR 257, 270-271 and Leontiades v F T Manfield Pty Ltd [1980] FCA 49; (1980) 43 FLR 193, 198-199.
  • 97 Section 5 of the 1904 Act was replaced by s 334 of the Industrial Relations Act 1988 (Cth). The provision setting up a reverse onus of proof was subs (6), as follows:
    • In a prosecution for an offence against subsection (1), (2), (3), (4) or (5), it is not necessary for the prosecutor to prove the defendant’s reasons for the action charged nor the intent with which the defendant took the action charged, but it is a defence to the prosecution if the defendant proves that the action was not motivated (whether in whole or in part) by the reason, nor taken with the intent (whether alone or with another intent), specified in the charge.
  • In Lawrence v Hobart Coaches Pty Ltd (1994) 57 IR 218, 219, Northrop J held that the legal effect of the new s 334(6) was the same as the effect of the previous s 5(4).
  • 98 The anti-discrimination provision was first introduced by an amendment made to the 1988 Act in 1993 (with effect from 30 March 1994). The new provision, s 170DF(1), was supported by a reverse onus section, s 170EDA(2), in the following terms:
    • If an application lodged under section 170EA alleges that a termination of employment of an employee contravened subsection 170DF(1) on the ground that the termination:
      • (a) was for a particular reason or reasons referred to in that subsection that were stated in the application; or
      • (b) was for reasons stated in the application that included a particular reason or reasons referred to in that subsection;
    • the termination is taken to have contravened subsection 170DF(1) unless the employer proves, in any consent arbitration arising from the application or in any proceedings arising on the referral of the application to the Court, that:
      • (c) the employment was not terminated for the particular reason or reasons or for reasons that included the particular reason or reasons; or
      • (d) the particular reason was a reason, or the particular reasons were reasons, to which subsection 170DF(2) or (3) applied.
  • One difference between s 170EDA(2) and the pre-existing s 334(6) was that the new provision operated in a civil, whereas the other provision operated in a criminal, context. That difference does not, however, explain why the legislature chose different terminology by which to give effect to its reverse onus policy in the context of the new anti-discrimination provision.
  • 99 The 1988 Act was substantially amended, and renamed as the WR Act, in 1996. What was s 334(6) – reverse onus in the context of the anti-victimisation provisions – became s 298V, and what was s 170EDA(2) – reverse onus in the context of the anti-discrimination provision – became s 170CQ. In the course of these amendments, a transposition occurred. The terminology of the new s 298V followed the general terms of what had been s 170EDA(2), and the terminology of the new 170CQ followed the general terms of what had been s 334(6). That is to say, the now anti-victimisation reverse onus section looked more like the previous anti-discrimination reserve onus section; and vice-versa. The Parliamentary materials accompanying the amendments of 1996 do not explain this transposition. The circumstance that, at the same time, the anti-victimisation provisions were broadened and de-criminalised does not, of itself, provide an obvious explanation.
  • 100 Whatever be the reason for the legislative changes of 1996 to which I have referred, the result was that s 170CQ came to be expressed as s 334(6) had been. As held by Northrop J in Lawrence, that provision was of the same legal effect as s 5(4) of the 1904 Act. It follows that s 170CQ was likewise of that legal effect, and that the established jurisprudence, to which I have referred in par 95 above, applied to the construction and operation of s 170CQ. The jurisprudence to which I refer, of course, is that which made it part of the prosecutor’s (or applicant’s) case to prove as an objective fact the circumstances alleged to constitute the basis of the "reason" to which the reverse onus section applied. Indeed, one of the three grounds in Lawrence itself was determined in favour of the respondent employer for the very reason that the prosecutor had called no evidence to establish that the union in question was seeking better industrial conditions: see 57 IR at 220. The same approach, in my view, should be taken under s 170CQ.
• 18. In Buckingham v KSN Engineering Pty Ltd & Anor [2008] FMCA 546 at [93] Lucev FM said:
  • “A consideration of s.809(1) makes it immediately apparent that any application (here the Amended Statement of Claim) must allege conduct (and more than merely a breach reciting the relevant provisions of the WR Act). The onus of proof in relation to the conduct alleged is what is reversed, as was explained in Geraldton Port Authority as follows:
    • “If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: s 298V; Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266-271 per Northrop J. The reversal of the onus in respect of proof of the reasons for the conduct is a recognition that "the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer": Heidt v Chrysler Australia Ltd at 267.”
• 19. In Rojas v Esselte Australia Pty Limited [2008] FCA 1585 at [46] – [50] Moore J held that the applicant must prove the existence of objective facts which are said to be a basis for the respondent’s conduct.
• 20. I respectfully adopt the reasoning of Jessup J, Moore J and Lucev FM and conclude that the applicant must prove the preliminary facts necessary to enliven the need for a respondent to embark upon attempting to discharge its evidential onus of proof.
• 21. The next question that arises is what the respondent must establish to discharge its onus of proof under either s.664 or s.809 of the Act.[18]

...

• 34. From the above review of the authorities I conclude that the determination of this proceeding requires the following:
  • (a) The applicant proving the fact of employment and its termination;
  • (b) The applicant proving such of the facts as he intends to rely upon to invoke one or more of the provisions in ss.659(2) and 793(1) of the Act;
  • (c) The respondents proving that such identified reasons were not the reason, or one of the reasons, for the termination of the applicant’s employment;
  • (d) In discharging that onus the respondents do not have to prove that the applicant’s employment was terminated for a valid reason, as long as it was not terminated for a proscribed reason.[19]

21. Therefore, before the evidentiary burden shifts to Western Power under s.664 of the WR Act, Mr Moussalli must first discharge the evidentiary burden of establishing under s.659(2) the facts of each of the grounds claimed to have been breached. If Mr Moussalli cannot do this then the claim under s.659(2) of the WR Act must fail.[20]
22. It is therefore necessary to examine separately each of the grounds on which the application is made.

Temporary absence because of illness or injury

23. The regulation referred to in s.659(2)(a) of the WR Act is reg.2.12.8 of the Workplace Relations Regulations 2006 (Cth).[21]
24. Regulation 2.12.8 deals with what constitutes an employee’s absence from work because of illness or injury as a temporary absence, and provides as follows:
    • (1) For paragraph 659 (2) (a) of the Act, an employee's absence from work because of illness or injury is a temporary absence if:
      • (a) the employee provides a medical certificate for the illness or injury within:
        • (i) 24 hours after the commencement of the absence; or
        • (ii) such longer period as is reasonable in the circumstances; or
      • (b) the employee:
        • (i) is required by the terms of an industrial instrument to:

(A) notify the employer of an absence from work; and

(B) substantiate the reason for the absence; and

(ii) complies with those terms; or
(c) the employee has provided the employer with a required document in accordance with section 254 of the Act.

(2) Subregulation (1) does not apply if:

(a) the employee's absence extends for more than 3 months, unless the employee is on paid sick leave for the duration of the absence; or

(b) the total absences of the employee, within a 12 month period, whether based on a single or separate illnesses or injuries, extend for more than 3 months, unless the employee is on paid sick leave for the duration of the absences.

(3) In this regulation:

• medical certificate has the meaning given by section 240 of the Act.

25. Section 240 of the WR Act provides as follows:
    • Definitions
    • In this Division:
    • ...
    • "medical certificate" means a certificate signed by a registered health practitioner.
    • ...
26. In Rogers v Millennium Inorganic Chemicals Ltd & Anor[22] this Court dealt with the interaction between s.659(2)(a) of the WR Act and reg.2.12.8 of the WR Regulations, having regard to prior judgments of the Federal Court and the statutory forebears of that legislation.[23] This Court said in Millennium Inorganic Chemicals that:
    • 52. The Federal Court has considered the interaction between, and construction of, s.659(2)(a) and reg.2.12.8 and their statutory forebears. In the context of the current provisions of the WR Act (s.659(2)(a)) and WR Regs (reg.2.12.8) that consideration establishes that:
      • (a) reg.2.12.8 is an exhaustive statement of what constitutes a temporary absence from work under s.659(2)(a); and
      • (b) if a particular absence does not fall within the matters defined in reg.2.12.8 then s.659(2)(a) has no application (even if ordinarily the particular absence could be said to be a temporary absence).
    • 53. It is therefore necessary, for an absence to be a “temporary absence from work” under s.659(2)(a), that one of the preconditions in reg.2.12.8 be met.[24]

Provision of a medical certificate for the illness or injury

27. It is implicit in reg.2.12.8 of the WR Regulations that the medical certificate provided in relation to the alleged illness or injury giving rise to the temporary absence actually indicates that the person the subject of the medical certificate is ill or injured. In this case, Mr Moussalli has not provided a medical certificate which indicates that he was ill or injured and required to be temporarily absent from work at the time of, or for some months before, the alleged unlawful termination. The evidence indicates that he was certified fit for work by two medical practitioners: Doctors Lloyd and Dixon on 24 April 2008 and 28 August 2008 respectively,[25] and certified fit for a restricted return to work by Dr Keating, the workers’ compensation insurance doctor on 13 October 2008.[26] Dr Lloyd, a Consultant Occupational Physician, in his April 2008 opinion said that Mr Moussalli’s “psychological symptoms had been resolved.” He said that a successful prolonged return to work for Mr Moussalli depended upon his workplace concerns being addressed and that this “is not a medical matter and can only be addressed by his management.” Dr Dixon, a Consultant Psychiatrist, in his opinion of August 2008 saw no reason to dispute Dr Lloyd’s opinion, and went on:
    • “I found he gave no evidence of anxiety or depression and appeared to have quite recovered from his earlier reactive depression.
    • In addition there was no evidence of neurosis, psychosis or personality disorder. ...
    • In summary Mr Moussalli is now free from the depression that accompanied his stress reaction to his work situation and would benefit from the usual rehabilitation process in such situations to resume work.”
28. In the circumstances, there is no evidence that Mr Moussalli was in fact temporarily absent from work because of illness or injury for more than 6 months before his alleged unlawful termination.

Terms of an industrial instrument

29. The only industrial instrument which is before the Court, namely the Western Power Salaried Employees Certified Agreement 2005,[27] contains no provisions relating to the notification of an employer in relation to an absence from work or the substantiation of the reason for any absence.[28] No other relevant industrial instrument is before the Court. There is therefore no evidence that Mr Moussalli has complied with the terms of any relevant industrial instrument in relation to:
    1. the notification to Western Power of his absence from work; or
    2. the substantiation of the reason for his absence.[29]

Document under s.254 of the WR Act

30. Mr Moussalli’s evidence indicates that he was not on a period of sick leave at the time of his alleged unlawful termination because his sick leave had been terminated by Western Power. Section 254 of the WR Act does not therefore apply.[30] Even if it did apply, Mr Moussalli is unable to meet its terms because he has not provided a medical certificate or statutory declaration indicating that he was unfit for work during the relevant period of time because of a personal illness or injury.[31] Indeed, as set out above,[32] the evidence provided by Mr Moussalli indicates that he was fit for work at the time of his alleged unlawful termination, or fit for at least a restricted return to work at that time.

Length and payment of the absence

31. An absence is not a temporary absence if the employee’s absence extends for more than three months unless the employee is on paid sick leave for the duration of the absence.[33] In this case, Mr Moussalli’s absence extended for more than three months. There is no evidence that Mr Moussalli was on paid sick leave for the duration of the absence. In fact, Mr Moussalli’s evidence indicates to the contrary. It indicates that in May 2008, some six months prior to the alleged unlawful termination, he lodged a workers’ compensation claim because Western Power had stopped his sick leave and he “was not paid for many months”.[34]
32. In the circumstances, Mr Moussalli’s evidence is that his absence extended for more than three months and that he was not on paid sick leave for the entire duration of the absence (and in particular from May to November 2008), or at the time of the alleged unlawful termination. Therefore, reg.2.12.8(1) of the WR Regulations cannot have any application, and therefore there cannot be a temporary absence or illness “within the meaning of the regulations” for the purposes of s.659(2)(a) of the WR Act.[35]

Conclusion – temporary absence because of illness or injury

33. Mr Moussalli has failed to prove the facts necessary to establish a claim under s.659(2)(a) of the WR Act, and this part of his claim cannot succeed.

Non-membership of a trade union

34. Mr Moussalli has led no evidence at all regarding membership or non-membership of a trade union. There is no suggestion in the affidavits filed by Mr Moussalli that there was ever any issue with respect to his non-membership of a trade union arising in relation to his alleged unlawful termination. His claim under s.659(2)(c) of the WR Act therefore cannot succeed because there is no proof of the essential element of that part of the alleged contravention under s.659(2)(c) of the WR Act.

The filing of complaint, participation in proceedings or recourse to a competent administrative authority

35. The jurisdictional prerequisites for the operation of s.659(2)(e) of the WR Act were set out by this Court in Weerasinghe v Prism Grafix Pty Ltd[36] where the Court observed as follows:
    • 7. There are three discrete circumstances in which in s.659(2)(e) of the WR Act operates, as set out by the Full Court of the Federal Court in Zhang v Royal Chemical Institute Inc:
      • 23. Three circumstances can trigger the operation of the proscribed reason in s.170K(2)(e).[37] First, the filing of a complaint by the employee. Second, participation by the employee in proceedings against an employer. In both those cases they must involve alleged violation of laws or regulations by the employer. The punctuation supports that construction. Third, recourse by the employee to competent administrative authorities will trigger the operation of the section. All three circumstances are directed to complaints to parties other than the employer.
      • ...
      • 25. ... A complaint can only be filed somewhere and with someone other than the employer and probably only to a Court or Tribunal...[38]
    • 8. In CSR Viridian Ltd (formerly Pilkington Australia Ltd) v Claveria, it was argued that:
      • 33. ... a worker should not be regarded as having had recourse to a competent administrative authority unless the substance of his or her complaint to such an authority was that there had been, or might well have been, a violation of laws or regulations (although it was not submitted that he or she need have any more than the most general of notions as to the identification of the laws or regulations concerned). [39]
      • ...
    • 9. It is therefore clear that in order to meet the jurisdictional prerequisite of a claim at least one of the three circumstances in s.659(2)(e) of the WR Act must be operative.[40]

Workers’ compensation claim

36. Mr Moussalli asserts that a workers’ compensation claim was filed in May 2008. The evidence does not indicate that at that time the “claim” was made to an external authority. In any event, the making of a workers’ compensation claim even to an external authority:
    1. is not the filing of a complaint against an employer involving alleged violation of laws or regulations;
    2. is not participation in proceedings involving alleged violation of laws or regulations because it is no more than the making of a claim for compensation under a no-fault compensation scheme; and
    100. is not recourse to competent administrative authorities.[41]
37. Mr Moussalli’s claim on the basis of his workers’ compensation claim cannot therefore succeed under s.659(2)(e).

Filing of complaints and violation of employer’s own regulations

38. Under the headings “Filing of Complaints” and “Violation of Employer’s Own Regulations” Mr Moussalli has set out a series of:
    1. complaints made by him, all characterised as grievances, against other employees, and in one case, the human resources department of Western Power; and
    2. alleged failures by Western Power to carry out certain acts such as applying policies, providing documents, following correct processes and following up queries made by or in relation to Mr Moussalli.
39. Mr Moussalli’s evidence in relation to the grievances and alleged failures shows that they are all related to matters internal to Western Power, and made internally within Western Power. They relate to what might be characterised as alleged internal administrative failures by Western Power. The Fair Treatment System referred to in the amended application by Mr Moussalli is a dispute resolution system internal to Western Power, with no resort to any external authority for the resolution of the dispute raised. Further, it is not a dispute resolution system which can be engaged simultaneously with an external dispute resolution system such as that provided for in clause 9 of the Certified Agreement.[42] Mr Moussalli’s evidence discloses no complaint by Mr Moussalli to any external authority in relation to these matters prior to, or as at the time of, the alleged unlawful termination.
40. Section 659(2)(e) of the WR Act requires that a complaint be filed somewhere and with someone other than the employer, and usually with a court or tribunal.[43] Furthermore, there is no evidence that the complaints filed or alleged failures (said to constitute violation of the employer’s own regulations) were the subject of any proceedings as at, or before, the time of the alleged unlawful termination, for the purposes of s.659(2)(e) of the WR Act.
41. The filing of complaints and alleged violation of employer’s own regulations the subject of the application by Mr Moussalli are not matters within the ambit of s.659(2)(e) and this part of his application cannot succeed.

Violation of certified agreement

42. Mr Moussalli’s application alleges violation of the Certified Agreement. The Certified Agreement is in evidence.[44] However, there is no evidence that Mr Moussalli has filed a complaint with a court having jurisdiction to deal with a contravention of the Certified Agreement,[45] nor participated in proceedings against Western Power in relation to the alleged violation or contravention of the Certified Agreement.
43. Mr Moussalli cannot succeed on this aspect of his claim under s.659(2)(e) because there is no evidence to support the claim.

Violation of laws

44. The application contains a long list of laws alleged to have been violated by Western Power, but with no particularisation of what constitutes the alleged violations. Setting aside the fact that some of them might not be laws (such as the Western Australian Public Sector Code of Ethics and the “Employer’s Duty of Care”) there is again no evidence of any complaint to an external authority or participation in proceedings in relation to the alleged violations prior to, or as at the time of, the alleged unlawful termination.
45. Mr Moussalli cannot succeed on this aspect of his claim under s.659(2)(e) because there is no evidence to support the claim.

Political opinion, national extraction or social origin

46. The only evidence which relates to this head of the claim is evidence that in a meeting on 21 September 2006[46] a fellow employee, Mr Newton:
    • “... negatively referred to my political convictions and made some nasty attacks to my character. At that time, it became more common knowledge that I was from Lebanese descent as my mother who had been trapped in Lebanon further to the Israeli bombing of Beirut, was in the process of being rescued by the Australian Navy.”[47]
47. The above evidence must be considered in its context, namely that:
    1. between March and August 2006 Mr Moussalli “had a number of issues” with Mr Newton “which ranged from discrimination and there were a number of instances where ... [Mr Newton] ... undermined my authority by directly interfering while I was acting for ... [Mr Arney].”;[48] and
    2. Mr Moussalli says that at that time he approached a Mr Goddard “in order to file a grievance under Western Power’s Fair Treatment System” regarding his issues with Mr Newton but he “felt bullied out of it” after the September 2006 Meeting.[49]
48. The September 2006 Meeting:
    1. was more than two years prior to Mr Moussalli’s alleged unlawful termination; and
    2. was in relation to internal grievances that Mr Moussalli then had with Mr Newton, not any matter related to his alleged unlawful termination which occurred more than two years later.
49. Further, there is simply no evidence as to what Mr Moussalli’s political convictions were, and no evidence as to how:
    1. any political conviction; or
    2. the matter of national extraction or social origin, if commented upon (there is no evidence it was commented upon or raised in any way) in the September 2006 Meeting,

can be said to be a reason for a termination occurring more than two years later, which on its face, occurs because Mr Moussalli refused to return to work when Western Power considered he had been certified fit to return. There is, on the evidence of Mr Moussalli, no logical or rational connection between the events in the September 2006 Meeting and his termination more than two years later. Finally, there is no suggestion in the affidavits filed by Mr Moussalli that there was ever any issue with respect to his political opinion, national extraction or social origin arising in relation to his alleged unlawful termination.

50. Mr Moussalli’s claim under s.659(2)(f) of the WR Act cannot therefore succeed on the evidence he has submitted.

Conclusion and orders

51. The Court has concluded that each aspect of the claims made in the amended application by Mr Moussalli cannot succeed on the evidence that he has filed. The amended application therefore has no reasonable prospects of success. Indeed, in the Court’s view, it has no prospects of success at all on the evidence before the Court. As indicated above Mr Moussalli’s evidence has come in by way of four affidavits which are before the Court, and in circumstances where Mr Moussalli had the opportunity to file further affidavit material, he failed to avail himself of that opportunity, and has ultimately failed to lead evidence which proves his claims. There will therefore be orders upholding Western Power’s summary dismissal application, and dismissing Mr Moussalli’s amended application.
52. The Court will hear the parties as to costs.

I certify that the preceding 52Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fifty-twofifty-two (52) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: S. Gough

Date: 4 June 2010

---

[1] Moussalli v Western Power (No. 2) [2010] FMCA 374 (“Moussalli (No. 2)”).
[2] Transcript, 2 June 2010, pages 1-3.
[3] Transcript, 2 June 2010, pages 1-3 and 5.
[4] Evidence Act 1995 (Cth), s.56.
[5] Transcript, 2 June 2010, page 5.
[6] Moussalli (No. 2) at paras.1-3 per Lucev FM.
[7] “WR Act”.
[8] (2007) 162 IR 17; [2007] FMCA 145 (“Ten Talents”).
[9] Ten Talents IR at 24-26 per Lucev FM; FMCA at paras.15-32 per Lucev FM.
[10] “Mr Moussalli’s 20 April 2009 Affidavit”.
[11] “Mr Moussali’s 26 June 2009 Affidavit”.
[12] “Mr Moussalli’s 16 July 2009 Affidavit”
[13] “Mr Moussalli’s 17 August 2009 Affidavit”.
[14] See Moussalli (No. 2).
[15] [2008] FMCA 1191 (“Randall”).
[16] Randall at para.112 per O’Sullivan FM.
[17] (2008) 177 IR 212; [2008] FMCA 1490 (“Hayward”).
[18] Hayward IR at 218-221 per Wilson FM; FMCA at paras.11-14 and 17-21 per Wilson FM.
[19] Hayward IR at 223-224 per Wilson FM; FMCA at para.34 per Wilson FM.
[20] Sallehpour v Frontier Software Pty Ltd [2005] FCA 247; (2005) 139 IR 457 at 463 per Marshall J; [2005] FCA 247 at paras.43-45 per Marshall J (“Sallehpour”); Nikolich v Goldman Sachs JB Were Services Pty Ltd [2006] FCA 784 at paras.169 and 177 per Wilcox J (“Nikolich”); Crowley v Parker Hannifin (Australia) Pty Ltd [2006] FCA 901; (2006) 154 IR 88 at 92-93 and 94 per Marshall J; [2006] FCA 901 at paras.26 and 42 per Marshall J.
[21] “WR Regulations”.
[22] (2009) 229 FLR 198; [2009] FMCA 1 (“Millennium Inorganic Chemicals”).
[23] The Court considered Sallehpour and Nikolich. Nikolich was appealed, but not on this point: see Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 (“Nikolich Appeal”) of which a part only – as to costs – is reported at [2007] FCAFC 120; (2007) 163 FCR 62. The statutory forebears are the former s.170CK(2)(c) of the WR Act and reg.30C of the WR Regulations.
[24] Millennium Inorganic Chemicals FLR at 207-208 per Lucev FM; FMCA at 52-53 per Lucev FM (footnotes omitted).
[25] Mr Moussalli’s 26 June 2009 Affidavit, Annexure B.
[26] Mr Moussalli’s 26 June 2009 Affidavit, Annexure C.
[27] “Certified Agreement”; at Annexure S to Mr Moussalli’s 26 June 2009 Affidavit.
[28] WR Regulations, reg.2.12.8(b)(i).
[29] WR Regulations, reg.2.12.8(b)(ii).
[30] WR Act, s.254(1).
[31] WR Act, s.254(2) and (4).
[32] See para.27 above.
[33] WR Regulations, reg.2.12.8(2).
[34] Mr Moussalli’s 26 June 2009 Affidavit, paras.74 and 83-84. The quote is from para.84.
[35] WR Regulations, reg.2.12.8(2).
[36] (2009) 186 IR 330; [2009] FMCA 728 (“Prism Grafix”).
[37] Section 170K(2)(e) is now s.659(2)(e) of the WR Act.
[38] [2005] FCAFC 99; (2005) 144 FCR 347 at 351 per Lander J; [2005] FCAFC 99 at paras.23 and 25 per Lander J (with whom Spender and Kenny JJ agreed: FCR at 348, FCAFC at paras.1 and 2) (“Zhang”).
[39] [2008] FCAFC 177; (2008) 171 FCR 554 at 566 per Goldberg and Jessup JJ; [2008] FCAFC 177 at para.33 per Goldberg and Jessup JJ (“CSR Viridian”).
[40] Prism Grafix IR at 332-333 per Lucev FM; FMCA at paras.7-9 per Lucev FM (footnotes 37-39 above are footnotes in the case cited).
[41] Jennings v Salvation Army (Vic) Property Trust Inc [2003] FCA 1193; (2003) 128 IR 366 at 374 per Marshall J; [2003] FCA 1193 at para.35 per Marshall J; Zhang v Royal Australian Chemical Institute Inc [2005] FCAFC 99; (2005) 144 FCR 347 at 352 per Lander J; [2005] FCAFC 99 at para.34 per Lander J (“Zhang”); Hayward IR at 228 per Wilson FM; FMCA at para.70 per Wilson FM.
[42] Mr Moussalli’s 26 June 2009 Affidavit, Annexure P (at page 34 of the Annexure).
[43] Zhang FCR at 351 per Lander J; FCAFC at para.25 per Lander J; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at 280 per Gray and Mansfield JJ; [2004] FCAFC 161 at para.44 per Gray and Mansfield JJ; Prism Grafix IR at 334 per Lucev FM; FMCA at para.14 per Lucev FM.
[44] See footnote 27 above.
[45] WR Act, ss.717, 718 and 719.
[46] “September 2006 Meeting”.
[47] Mr Moussalli’s 26 June 2009 Affidavit, para.41.
[48] Mr Moussalli’s 26 June 2009 Affidavit, para.38.
[49] Mr Moussalli’s 26 June 2009 Affidavit, para.40.