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Loi Toma v Workforce Recruitment and Labour Services Pty Ltd T/A Workforce International Group [2023] FWCFB 63 (21 March 2023)

Last Updated: 23 March 2023

Fair Work Act 2009

s.604—Appeal of decision
Loi Toma
v
Workforce Recruitment and Labour Services Pty Ltd T/A Workforce International Group

(C2022/7958)

Appeal against decision by email dated 17 November 2022 of Deputy President Dean in matters U2018/2283 and C2019/1868 – permission to appeal refused.

[1] Mr Loi Toma has applied pursuant to s.604 of the Fair Work Act 2009 (Cth) (Act) for permission to appeal a decision of Deputy President Dean issued by email on 17 November 2022 (decision).

[2] In the decision, the Deputy President:

1. dismissed two costs applications made by the respondent in matters U2018/2283 and C2019/1868 on the basis that the applications were no longer pressed; and
   
2. dismissed a costs application filed by Mr Toma on 15 November 2022 on the basis that it was not made within the 14-day statutory timeframe prescribed by s.402 of the Act.
   

[3] The application before us was listed for permission to appeal only. It proceeded to a hearing on 10 February 2023 at which Mr Toma appeared together with a support person, Mr Thiruvasan Nagan and an interpreter of the Samoan language.

[4] Mr Toma challenges the decision on various grounds. However, for the reasons that follow, we decline to grant permission to appeal and dismiss the application.

Procedural history

[5] Mr Toma was employed by the respondent, a labour hire company, from May 2016. Mr Toma’s employment with the respondent ceased in February 2018 and he filed an application for an unfair dismissal remedy with the Commission on 5 March 2018.

[6] Mr Toma’s unfair dismissal application was first heard by the Commission on 24 May 2018. The application was dismissed pursuant to s.587 of the Act (the May 2018 decision).[1] The May 2018 decision was quashed by a Full Bench on 27 September 2018 and remitted to another Member.[2]

[7] On 11 March 2019, after the subsequent hearing of Mr Toma’s application for an unfair dismissal remedy, the application was again dismissed (the March 2019 decision).[3] Mr Toma’s application for permission to appeal was rejected by a Full Bench on 18 June 2019 (the June 2019 decision).[4]

[8] The respondent lodged two applications for costs against Mr Toma. The first costs application was made following the issuance of the March 2019 decision and was allocated to Deputy President Dean. The second costs application was made by the respondent following the issuance of the June 2019 decision. The second costs application was remitted to Deputy President Dean for determination.[5]

[9] On 15 July 2019, Mr Toma made a costs application pursuant to s.401 of the Act against the paid agent which represented the respondent in the Commission proceedings concerning the March 2019 decision and the June 2019 decision (the July 2019 costs application).[6]

[10] Mr Toma also applied to the Federal Court for judicial review of the March 2019 decision and the June 2019 decision. Mr Toma submitted that the Commission had denied him procedural fairness by providing an incompetent interpreter, who did not accurately interpret the proceedings. Further, Mr Toma contended that the name of the first respondent, which was amended by the Commission, was incorrect.

[11] On 9 August 2019, Deputy President Dean issued a decision in respect of the respondent’s first costs application, and Mr Toma’s July 2019 costs application. The respondent’s second costs application was dealt with in a separate decision summarised at [13] below. The Deputy President concluded, in respect of Mr Toma’s July 2019 costs application, [7]s follows:7

“The Toma Costs Application was made outside the 14 day time limit prescribed in s.402 of the Act. Workforce sought that the Commission dismiss the Toma Costs Application, given the Act makes no provision for the time limit to be extended. The parties were given an opportunity to be heard in relation to issue. After hearing from the parties, I decided that I would dismiss the Toma Costs Application as it was not made in accordance with the Act.”

[12] The Deputy President determined it appropriate to adjourn the respondent’s first costs application until the conclusion of Mr Toma’s application to the Federal Court for judicial review of the March 2019 decision and the June 2019 decision. In this respect, the Deputy President determined as follows:[8]

“I consider it is inappropriate to progress the Costs Application in these circumstances, as to do so could result in the awarding of costs that may have to be repaid depending on the outcome of the Federal Court Proceedings. It follows that I do not consider the submissions made by Workforce to be sufficiently persuasive as to outweigh the reason why it is more appropriate to adjourn the proceedings...

The Workforce Costs Application is adjourned pending the determination of the Federal Court Proceedings.”

[13] On 9 August 2019, the Deputy President also issued a decision in respect of the respondent’s second costs application. For reasons identical to those extracted at [11] above, the Deputy President also adjourned the respondent’s second costs application pending the determination of Mr Toma’s application for judic[9]al review.9

[14] On 3 August 2020, Mr Toma’s application for judicial review of the March 2019 decision and the June 2019 decision was dismissed by the Federal Court. The primary judge found that any error arising from either deficient interpretation or the change of the first respondent’s name was immaterial and did not bear upon the March 2019 decision or the June 2019 decision.[10] Mr Toma’s appeal of this decision to a Full Court of the Federal Court was dismissed on 8 June 2022.[11]

[15] On 17 March 2022, Mr Toma commenced separate proceedings in the Federal Court alleging that he had been subjected to racial discrimination by the Commission by reason of the manner in which the Commission dealt with Mr Toma’s unfair dismissal application in the May 2018 decision and thereafter by the Full Bench of the Commission when hearing Mr Toma’s appeal (i.e. the June 2019 decision). On 25 October 2022, Mr Toma’s application for leave to pursue a racial discrimination claim was refused by the Federal Court.[12]

[16] By email dated 2 November 2022, the Chambers of Deputy President Dean issued correspondence to the parties in the following terms (formal parts omitted):

“The Deputy President wishes to finalise the outstanding costs applications in the abovementioned matters. As you know, the costs applications were stood over pending the outcome of numerous proceedings in the Federal Court of Australia, with the most recent decision being handed down on 25 October 2022 by Raper J.

Given the decisions made by the Federal Court of Australia (including in relation to costs) and the time that has elapsed since the costs applications were made, the Deputy President proposes to dismiss all the costs applications currently before her with the consent of both parties.

If either party wishes to press any costs application, then a hearing will be scheduled.

Please advise whether consent is given to dismiss all costs applications, or whether you wish to be heard in relation to any costs application, by no later than noon on Wednesday 9 November 2022.”

[17] In the absence of a response from Mr Toma or the respondent, the Deputy President’s Chambers issued the further correspondence by email (formal parts omitted) on 10 November 2022:

“We refer to our email of 2 November, a copy of which is below. No response has been received from either party.

Please note that if no response is received by 4pm tomorrow (Friday 11 November 2022), the Deputy President intends to dismiss all costs applications relating to these matters for want of prosecution.”

[18] On 10 November 2022, the respondent’s representative advised the Commission that the respondent would not be pursuing its costs applications against Mr Toma “in either matter.”

[19] On 14 November 2022, Mr Toma sent an email to the Deputy President’s Chambers and the respondent. Mr Toma’s email advised that he intended to file a costs application pursuant to ss.611 and 400A of the Act and sought that a hearing be convened in the Commission. Mr Toma’s Form F6 costs application was filed by way of an email dated 15 November 2022 in which Mr Toma stated that, “[i]f not for the actions and omissions of the Respondent, I would not have incurred these costs.” Mr Toma repeated his request for a hearing.

[20] The costs application attached to Mr Toma’s 15 November 2022 email was specified to be made in relation to the May 2018 decision and the March 2019 decision.[13] In this sense, it differed from Mr Toma’s 15 July 2019 costs application which was made in respect of the March 2019 decision and the June 2019 decision. It also differed from the 15 July 2019 costs application on the basis that the costs were sought against the respondent pursuant to ss.400A and 611 (and not from the respondent’s representative as in the 15 July 2019 costs application).[14]

[21] A further email was sent to the parties by the Deputy President’s Chambers on 17 November 2022. This email is the subject of Mr Toma’s appeal in these proceedings, and is set out in full below (formal parts omitted):

“We refer to the decision made by Deputy President Dean on 9 August 2019, a copy of which is attached. In this decision the Deputy President dismissed the costs applications made by Mr Toma (see para 8), because an application for costs must be made within 14 days after the date of decision, and both of Mr Toma’s costs applications were made outside this time period. There is no ability for the Commission to accept a costs application made outside this statutory timeframe.

For the same reason, the new application for costs made by Mr Toma within the last week cannot proceed because it was not made within 14 days after the date of the decisions made in 2019.

The applications that were adjourned pending the outcome of the Federal Court proceedings were the costs applications made by the Respondent. As the Respondent has confirmed it no longer presses these applications, the files will now be closed and all matters are concluded.”

[22] Mr Toma lodged his notice of appeal in respect of this decision on 23 November 2022.

Appeal grounds and submissions

[23] Notwithstanding the references in Mr Toma’s notice of appeal to Commission matter U2018/2283 as well as matter C2019/1868,[15] Mr Toma confirmed at the hearing before us that he sought only to appeal the 17 November 2022 decision issued by email by the Deputy President.

[24] Having regard to Mr Toma’s notice of appeal and his outline of submissions, we understand Mr Toma’s appeal grounds to be, in substance, as follows:

1. The Deputy President invited the parties to make a costs application notwithstanding s.377 of the Act.
   
2. Mr Toma accepted the Deputy President’s offer and requested a hearing, at which point there was a binding contract, which neither party can unilaterally amend without consent.
   
3. The Deputy President unilaterally changed the agreement by reversing her own decision and relying upon s.377 to dismiss Mr Toma’s 15 November 2022 costs application.
   
4. Section 377 of the Act is silent on the time limit for filing an application for costs.
   
5. The Deputy President has racially discriminated against Mr Toma.
   

[25] Mr Toma submits that permission to appeal should be granted because it is in the public interest that trust is maintained in the Commission, which is bound to the terms of contracts “just like any other Australian.”[16] Further, Mr Toma contends that there is a public interest in ensuring that his concerns relating to racial discrimination are heard.[17] As to the application of s.377 of the Act, Mr Toma contends that it is in the public interest to understand why the Commission chose to strictly adhere to this provision. In this respect, Mr Toma compares s.377 to s.602 of the Act and submits that “there are no time limits when the FWC can correct an obvious wrong.”[18]

Consideration

[26] The Deputy President’s decision is one to which s.400 of the Act applies. Therefore, permission to appeal must not be granted unless the Commission considers it is in the public interest to do so (s.400(1)). Further, appeals on a question of fact can only be made on the ground that it involved a significant error of fact (s.400(2)).

[27] The test in s.400(1) is a stringent one.[19] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[20] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent

decisions dealing with similar matters.[21] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[22] 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.[23]

[28] For the reasons which follow, we do not consider that it would be in the public interest to grant permission to appeal in this matter.

[29] Notwithstanding Mr Toma’s erroneous reference to s.377 of the Act in his notice of appeal and submissions, the statutory foundation which informed the decision under appeal lies in s.402 of the Act, which provides as follows:

“Application for costs orders

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after:

1. the FWC determines the matter; or
   
2. the matter is discontinued.”
   

[30] Section 402 is not applied on a discretionary basis. It provides for the timing of costs applications in unfair dismissal applications such as Mr Toma’s. The effect of the provision is that any application for costs, whether against a party under ss.611 or 400A, or against a lawyer or paid agent under s.401, must be made within 14 days after the determination or discontinuance of the matter.

[31] The application of s.402 of the Act made inevitable, we consider, a conclusion that Mr Toma’s 15 November 2022 costs application under s.400A of the Act could not proceed. This is because the 15 November 2022 costs application was filed by Mr Toma in relation to the May 2018 decision and the March 2019 decision, each of which had been determined by the Commission approximately 4.5 years and 3.5 years prior and well outside the 14-day statutory deadline for the lodgement of costs applications in unfair dismissal proceedings in the Commission.

[32] The Deputy President approached this issue in the decision by referring the parties to her earlier decision dismissing Mr Toma’s 15 July 2019 costs application pursuant to s.402 of the Act. The Deputy President proceeded by concluding as follows:

“For the same reason, the new application for costs made by Mr Toma within the last week cannot proceed because it was not made within 14 days after the date of the decisions made in 2019.”

(emphasis added)

[33] While the decision does not itself specifically refer to s.402 of the Act, the Deputy President’s reference to her 9 August 2019 decision together with the statement “[f]or the same reason” makes it clear that s.402 of the Act provided the basis for the decision to dismiss.

[34] The conclusion reached by the Deputy President was the only one available given the operation of s.402 of the Act. The question of whether the 15 November 2022 costs application was made within 14 days after the Commission determined the matter(s) is a jurisdictional fact.[24] In circumstances where the 15 November 2022 costs application was made well outside the statutory timeframe for lodgement of such applications, the Deputy President was not empowered to further deal with the application. The Deputy President did not err in so determining.

[35] We turn now to consider Mr Toma’s grounds of appeal and, for the reason set out at [29] above, we proceed on the basis that the reference in Mr Toma’s notice of appeal and submissions to s.377 is in fact a reference to s.402 of the Act. We proceed in this way noting that s.377 of the Act relates to applications made pursuant to ss.365 and 372 under the general protections provisions of the Act and is therefore unrelated to Mr Toma’s application under s.394.

[36] We observe at the outset that none of Mr Toma’s grounds of appeal challenge the Deputy President’s core finding that the 15 November 2022 costs application was lodged outside the 14-day statutory timeframe contrary to s.402 of the Act, and therefore the appeal grounds cannot affect the ultimate outcome.

[37] In relation to appeal ground one, we do not accept that the Deputy President invited the parties to make a costs application, as contended. Mr Toma’s misapprehension about this matter may have arisen on account of the following statement in the 2 November 2022 email to the parties:

“If either party wishes to press any costs application, then a hearing will be scheduled.”

[38] To the extent this statement may have suggested that Mr Toma had a costs application before the Commission at that time, it was not accurate. As at 2 November 2022, Mr Toma had no extant costs applications before the Commission for Mr Toma to “press.” However, the parties had not been invited to “make” a costs application and further, the Deputy President’s 2 November 2022 correspondence also referred to “the costs applications” that “were stood over pending the outcome of numerous proceedings in the Federal Court of Australia...” It is therefore apparent, notwithstanding any confusion flowing from a reading of the extract at [37] above in isolation, that the references in the Deputy President’s 2 November 2022 correspondence to “costs applications” related to those applications that had already been lodged in the Commission and had been held in abeyance pursuant to the Deputy President’s decisions of 9 August (see [12] and [13] of this decision). Further and in any event, this matter was clarified in the decision, wherein the Deputy President stated:

“The applications that were adjourned pending the outcome of the Federal Court proceedings were the costs applications made by the Respondent. As the Respondent has confirmed it no longer presses these applications, the files will now be closed and all matters are concluded.”

[39] It follows that appeal ground one cannot be made out.

[40] Appeal ground two proceeds on the premise that the Deputy President invited a costs application from the parties and “offered” to convene a hearing, which Mr Toma accepted. Given our conclusion in relation to the first ground of appeal, we do not accept that a costs application was invited and appeal ground two must therefore also fail. We observe however, that Mr Toma’s contention that “there was a binding contract” between he and the Commission, to which the Deputy President was bound, is misplaced. It is trite to observe that the Deputy President did not make an offer of the necessary kind. For any contract to exist the parties to an agreement must intend to create legal relations and such an intention is plainly not evident from the Deputy President’s 2 November 2022 case management correspondence. Mr Toma’s contentions in this respect are not reasonably arguable.

[41] By appeal ground three, Mr Toma contends that the Deputy President unilaterally changed “the agreement” and dismissed the 15 November 2022 costs application, rather than convening a hearing. In circumstances where no such contract existed between Mr Toma and the Commission and/or the Deputy President, appeal ground three cannot succeed. In any case, for the reasons set out at [30] to [34] of this decision, the Deputy President’s reliance upon s.402 of the Act to dismiss the 15 November 2022 costs application was not a discretionary decision. To the extent that Mr Toma contends, by his submissions, that the Deputy President “made a si[25]ificant error”25 by failing to convene a hearing, such contention must fail.

[42] Mr Toma contends by appeal ground four that s.377 of the Act is silent on the time limit for filing an application for costs. This is not accurate. Both ss.402 and 377 make express reference to the 14-day requirement for filing an application for an order for costs. To the extent that Mr Toma suggests, by conducting a comparison to s.602 of the Act, that “there are no time limits when the FWC can correct an obvious wrong,” such a contention is not reasonably arguable. The Commission’s power to correct an obvious error etc pursuant to s.602 has no bearing upon the statutory time limits imposed by parliament for the filing of costs applications.

[43] It is submitted by appeal ground five that the Deputy President has racially discriminated against Mr Toma. We have considered Mr Toma’s notice of appeal and submissions in respect of this matter and set out below the contentions advanced in support of this appeal ground:

(a) “Deputy President Dean has continued her racial discrimination against me. This started when she was a member of the Full Bench that, in June 2019, decided that it was not “in the public interest” to discuss my claims of racial discrimination.”[26]

(b) “Deputy President Dean, like she did in 2019, is covering up for the wrong doing of other FWC members who racially discriminated against me and lied. She has done it again in her Decision on 17 November 2022.”[27]

(c) “My grounds for Appeal is that Dean read my F6 costs application and realised that and realised that [sic] I had successfully proven racism and lies by her colleagues and exposed her behaviour in 2019. She should have removed herself rather than trying to sweep this under the carpet.”[28]

[44] The high-water mark of Mr Toma’s contention of racial discrimination is that the Deputy President (a) formed part of the Full Bench which issued the June 2019 decision dismissing Mr Toma’s application for permission to appeal the March 2019 decision (see [7] above), and (b) engaged in the same conduct in the decision under appeal before us.

[45] In order to address Mr Toma’s contention, we have considered the June 2019 decision. The Full Bench, of which the Deputy President formed part, considered Mr Toma’s third ground of appeal which dealt with an apparent refusal by the first instance Member to recuse themselves from determining Mr Toma’s unfair dismissal application. The Full Bench concluded that there was no basis for the Member to recuse themselves, there being no reasonable grounds advanced by Mr Toma for him to do so.[29] Against this background, the Full Bench rejected Mr Toma’s contention that he was discriminated against in either the May 2018 decision or the March 2019 decision and found that these matters did not support the grant of permission to appeal.[30]

[46] Mr Toma has advanced no reasons capable of supporting a conclusion that the June 2019 decision of the Full Bench, summarised above, discriminated against him. We note that the Federal Court declined Mr Toma’s application for leave to pursue a racial discrimination claim against the Commission in respect of the June 2019 decision (as well as the May 2018 decision) on 25 October 2022 (see [15]<[31] above).31

[47] There being no established act of discrimination by the Full Bench, it follows that it cannot be said that the Deputy President “continued” her racial discrimination against Mr Toma when she issued the decision under appeal. Further and in any event, Mr Toma has not explained how the decision discriminates against him or “is covering up” for other Members of the Commission when it was predicated upon compliance with s.402 of the Act.

[48] Having regard to the above matters, we are satisfied that Mr Toma’s allegations of racial discrimination against the Deputy President are without foundation. The contention advanced by appeal ground five that Mr Toma has the been the subject of racial discrimination is not reasonably arguable.

[49] Finally, to the extent that Mr Toma raises in his notice of appeal[32] other matters that may constitute further appeal grounds, we are satisfied that such matters generally address merely peripheral or irrelevant matters and do not involve any challenge to the core finding in the decision.

[50] Because Mr Toma’s appeal raises no reasonably arguable contention of appealable error, we have concluded that it would not be in the public interest to grant permission to appeal. However, in the event that Mr Toma forms the view that this Full Bench did not adequately deal with his contentions in relation to s.377 of the Act, notwithstanding our position at [35] of this decision, the outcome for Mr Toma’s appeal would be the same and we would not grant Mr Toma permission to appeal. Any contention that the Deputy President failed to comply with s.377 of the Act must fail in circumstances where (a) no application for an order for costs has been made by Mr Toma in relation to an application under ss.365 or 372, and (b) the Deputy President did not, in the decision, dismiss Mr Toma’s 15 November 2022 costs application pursuant to s.377 of the Act.

Conclusion

[51] Because we do not consider that the grant of permission to appeal would be in the public interest, s.400(1) of the Act prohibits such permission being granted. Accordingly, permission to appeal must be refused.

Order and disposition

[52] Permission to appeal is refused.

DEPUTY PRESIDENT

Appearances:

Mr L. Toma on his own behalf
Mr D. Slater for the respondent

Hearing details:

2023
Melbourne by video link:
10 February

[1] Loi Toma v Workforce Variable Pty Ltd T/A Workforce International [2018] FWC 2963.

[2] Loi Toma v Workforce Variable Pty Ltd T/A Workforce International [2018] FWCFB 5811, matter C2018/3158.

[3] Loi Toma v Workforce Recruitment and Labour Services Pty Ltd [2019] FWC 1564, matter U2018/2283.

[4] Loi Toma v Workforce Recruitment and Labour Services Pty Ltd [2019] FWCFB 4240, matter C2019/1868.

[5] Loi Toma v Workforce Recruitment and Labour Services Pty Ltd [2019] FWCFB 4625, matter C2019/1868.

[6] Form F6 Application for costs dated 15 July 2019 at [1.1] and [3.1], in matter U2018/2283.

[7] Loi Toma v Workforce Recruitment and Labour Services Pty Ltd [2019] FWC 5373 at [8], in matter U2018/2283.

[8] Ibid at [12]-[13].

[9] Loi Toma v Workforce Recruitment and Labour Services Pty Ltd [2019] FWC 5374 at [10]- [11].

[10] Loi Toma v Workforce Recruitment and Labour Services Pty Ltd [2020] FCA 1102.

[11] Loi Toma v Workforce Recruitment and Labour Services Pty Ltd [2022] FCAFC 100.

[12] Loi Toma v Fair Work Commission  [2022] FCA 1261. 

[13] Form F6 Application for costs dated 15 November 2022 at [1.1].

[14] Ibid at [2.1].

[15] Form F7 Notice of Appeal dated 23 November 2022 at [1.1].

[16] Applicant’s Outline of Submissions dated 31 January 2023.

[17] Applicant’s Outline of Submissions dated 31 January 2023; Form F7 Notice of Appeal dated 23 November 2022 at [3.1].

[18] Form F7 Notice of Appeal dated 23 November 2022 at [3.1].

[19] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).

[20] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 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].

[21] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27].

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

[23] 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; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

[24] Baxter Healthcare Pty Ltd v Portelli [2017] FWCFB 3891 at [95].

[25] Applicant’s Outline of Submissions dated 31 January 2023.

[26] Form F7 Notice of Appeal dated 23 November 2022 at 2.1, [2].

[27] Ibid at [3].

[28] Ibid at [5].

[29] Loi Toma v Workforce Recruitment and Labour Services Pty Ltd [2019] FWCFB 4240 at [25].

[30] Ibid at [26]-[27].

[31] Loi Toma v Fair Work Commission  [2022] FCA 1261  at  [38] -  [39] .

[32] Form F7 Notice of Appeal dated 23 November 2022 at [2.1].

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