Training and education 33
Employers should also train and educate their workers on issues of workplace harassment because:
- workers will become more aware of their roles and responsibilities;
- offenders will become more conscious of their behaviour, how it may be perceived and the possible consequences of their actions, potentially deterring aberrant behaviour in the future;
- workers will have a more accurate knowledge of what does and does not constitute workplace harassment;
- workers will become aware of the consequences of making malicious, frivolous or vexatious complaints;
- it can promote cultural change and a healthy and safe workplace; and
- people will be informed and encouraged to take action against harassing behaviour.
To create awareness of workplace harassment, employers should provide training to all workers on all general workplace harassment issues, including the prevention policy and procedures for making complaints. Training should be tailored to meet the special needs of workers with respect to genders, age, and disability, work experience and language and literacy levels.
It is also important that employers identify any workers with ineffective managerial styles as these behaviours may contribute to workplace harassment. Workers with supervisory responsibilities should be provided with training that focuses on developing a greater understanding of human behaviour, communication and people management. Assessment should also be conducted to ensure that supervisors should be able to apply newly acquired knowledge, skills and abilities in the workplace.
Appropriate records should be kept about training undertaken.
Monitor and review
Finally, employers should regularly check the effectiveness of the control measures implemented and monitor for signs of workplace harassment. It is also important periodically to check that the initial hazards that were identified and assessed are still valid. Significant changes to work and work systems could affect the risk profile of the workplace. Hazards may have changed and control measures may need to be updated to meet them.
Again, appropriate records should be kept of all monitoring and review activity.
Some lessons from the cases
Maddaford v. MA Coleman Joinery (NSW) Pty Ltd and others 34
These proceedings arose out of an initiation ceremony visited upon a hapless employee in a workshop environment.
A successful prosecution for offences against OH&S legislation Practice notes:
- The employer's problems here appeared to stem from the complete absence of any attempt at regulation of relevant risks. Note the absence of any relevant policy, and the absence of intervention by one of the directors of the employer company, despite advance warning of the incident.
- From the absence of any policy you can probably also assume that none of the protagonists had had any training in relation to their relevant obligations and as to the appropriate legislative standard of workplace behaviour.
- The victim was only 16. We are not told the ages of the perpetrators. Could their 'youth' have been a risk factor?
The employer company, its two directors and five employees were successfully prosecuted under the New South Wales Occupational Health and Safety Act 2000 after a 16 year old worker was subjected to a severe initiation "prank" by fellow employees in a Sydney factory.
During the half hour incident the worker was grabbed, wrapped in cling wrap, secured to a trolley (which was spun around) and had sawdust pushed in his mouth and thrust down his shirt and pants. Wood glue was also squirted in his mouth and over his body and he had a fire hose sprayed on him to wash the sawdust and glue out of his mouth until he coughed and choked.
The Industrial Magistrate who heard the matter found that, while there was a history of pranks at the workplace, there was no workplace violence policy in place. One of the directors was aware that an initiation ceremony was going to take place but had not intervened, even though there was a serious risk of injury.
The company was convicted and fined $24,000. The directors were convicted, with 1 fined $9,000 and the other $12,000. Four of the five employees were placed on good behaviour bonds and the other was fined $500. All of the employees were also individually ordered to pay court costs.
For other examples of situations where employers, and individuals, have incurred vicarious liability arising out of misguided workplace pranks, see:
- Macquarie Area Health Service v. Egan  NSWCA 26 (25 February 2002); and
- Cahill v. State of NSW (NSW Police)  NSWIRComm 33 (17 February 2005).
Goldman Sachs JB Were Services Pty Limited v. Nikolich 35
In Nikolich, a claim for damages heard as part of what started out as an unlawful termination claim in the AIRC, Mr Nikolich was awarded damages of $515,000 for breach by his employer of the terms of his employment contract.
Common law claim for damages for breach of contract (psychiatric injury)
- The employer was liable because (a) the "aspirational" statements in its harassment policy were incorporated, as terms, into the employee's contract of employment and (b) the employer was found to have breached relevant provisions of the contract, by failure to live up to what had become "actual", rather than merely "aspirational", commitments.
- According to the employer, incorporation of the terms of the policy into the employment contract was not intentional. In practice, policies – including those dealing with bullying and like subjects – should generally be excluded from contractual arrangements.
- The employer appeared to have all necessary systems and processes in place dealing with the risk of workplace bullying. The basic problem here, as found in the judgment, was excessive delay in responding to and dealing with the employee's harassment complaint.
Mr Nikolich was employed as an investment adviser. The employer had a policy in place dealing, among other things, with the prevention of workplace harassment and related grievance procedures. The Court found that the terms of the policy were incorporated into Mr Nikolich's contract of employment. The effect of this was that, as part of the employment contract, the employer had agreed to take "every practical step to provide and maintain a safe and healthy work environment".
Mr Nikolich's case was that he had had a dispute with his manager about the reallocation of a former worker's clients among other investment advisers, leading to allegations that the manager intimidated and harassed him. He made a complaint about the manager's conduct. Both at trial and on appeal the Court found that the employer had failed to abide by its policy, and had failed to take "every practical step" to maintain a safe work environment, because of the employer's delay in dealing with his complaint. The result of the delay was that Mr Nikolich suffered a serious psychological injury.
Naidu v Group 4 Securitas Pty Ltd and Nationwide News Ltd 36
In June 2005 the Supreme Court of New South Wales awarded $1.9 million in damages to a former employee suffering psychiatric illness caused by bullying in the workplace.
Group 4 Securitas Pty Ltd (Group 4) was contracted to provide security services for Nationwide News Ltd (News) at a number of its sites. Mr Naidu was employed by Group 4 as a security guard and assigned to work at News premises under the direct supervision of News staff, in particular Mr Chaloner, the News Security and Fire Manager.
A common law claim for damages for personal injury arising from negligence and breach of contract (psychiatric injury)
- Recommended reading – for it's breadth of issues – for any OH&S practitioner concerned to manage the risk of workplace bullying.
- The law considered in the judgment was far from complete analyses of the various heads of liability to which Group 4 and News were exposed upon the facts. Upon any view both defendant companies and the perpetrator were exposed to prosecution for breach of their statutory duties to the victim under occupational health and safety legislation, and, all could also have been exposed to civil and potentially criminal proceedings under anti-discrimination legislation.
- Note the incorporation into the contract of employment of relevant policies. Generally an undesirable practice. See also Nikolich above.
- Problem areas indicated included, potentially, a lack of training for both the perpetrator and others who were aware of what was going on leading to cultural problems; failure by the employer to act upon actual knowledge of a relevant risk; failure by the employer to properly supervise the victim.
Mr. Naidu testified that between 1992 and 1996 Mr Chaloner engaged in extensive bullying towards him. The bullying took a number of forms, including physical assaults (including sexual abuse), indecent exposure, racist and sexual verbal abuse, financial threats and general humiliation. Mr Naidu also claimed that he was forced to work excessive hours and perform personal tasks for Mr Chaloner unrelated to his work duties. As a consequence of the bullying and abuse, Mr Naidu's health deteriorated and he was diagnosed with serious depression and a post traumatic stress disorder.
The Court found that Group 4's discrimination and harassment policy constituted a condition of Mr Naidu's employment contract. The publication of the harassment policy by Group 4 implied that it was a term of the employment contract that Group 4 would not, by its servants or agents, intimidate, racially or personally vilify him, subject him to demeaning, harassing or abusive conduct or threats of violence and that it would, as far as reasonably practicable, protect him from any such conduct occurring in the course of his employment.
The Court also found that, even if the harassment policy hadn't existed, permitting intimidator conduct to be inflicted on employees was a breach of an implied term of Mr Naidu's employment contract. The effect of the implied term was that Group 4 would not, by its servants or agents, intimidate or racially or personally vilify Mr Naidu, subject him to demeaning, harassing or abusive conduct or threats of such conduct or threats of violence and that it would, so far as reasonably practicable, protect him from any such conduct occurring in the course of his employment.
Group 4 employees at the News site were aware of the manner in which Mr Naidu was treated by Mr Chaloner. The Court attributed this knowledge to Group 4. By entrusting Mr Naidu to the close, continuous and direct supervision of Mr Chaloner, Group 4 had accepted responsibility for Mr Chaloner's conduct.
Group 4 was also aware the Mr Chaloner could be unreasonable and demanding and that he routinely used the intimidation of staff as a management technique. This coupled with several isolated instances of unacceptable conduct of which Group 4 was aware, ought to have alerted Group 4 to enquire as to whether there were any risks to Mr Naidu's health. Had it done so, it is likely that the true extent of Mr Chaloner's misbehaviour would have been mostly exposed.
The result was that Group 4 was found to be liable for Mr Naidu's injuries, because of breach by the company of its express and implied obligations to Mr Naidu under the terms of his contract of employment, and, in negligence for breach of its duty of care at common law to provide him with a safe place at work.
So far as News was concerned, the Court found that, in every material and practical sense, Mr Naidu was Mr Chaloner's subordinate, even though Mr Naidu was employed by Group 4 and Mr Chaloner by News. In these circumstances it was inescapable that News took over, on its own behalf and as agent for Group 4, at least joint responsibility for the course, content and character of Mr Naidu's employment.
In this case so much of the threatening and demeaning behaviour and racial vilification was so intimately connected with the exercise of authority by Mr Chaloner and so closely associated with his day to day direction and control of Mr Naidu's activities that, although the conduct was not authorised and, indeed, was prohibited by News, News was found vicariously liable for the conduct.
The ultimate illness suffered by Mr Naidu was caused by the misconduct of Mr Chaloner towards him. The Court was satisfied that it was reasonably foreseeable that an illness might well result from Mr Chaloner's misconduct, whether or not Mr Chaloner was aware, or cared, whether this might be the result.
Both Group 4 and News were found liable in negligence for psychological injuries inflicted upon Mr Naidu by Mr Chaloner's conduct. They were found to have a duty of care to provide Mr Naidu with a safe workplace and safe systems of work, which they had breached.
Of the total damages awarded to Mr Naidu:
- a sum of $150,000 was awarded as exemplary damages against News, in effect to punish News for Mr. Chaloner's reprehensible conduct and to deter News from allowing such conduct in the future; and
- a sum of $100,000 was awarded against Group 4 for its breach of its various obligations to Mr. Naidu under his employment contract, for allowing or permitting him to be subjected to "over four years of malicious mistreatment" by Mr. Chaloner.
Otherwise, for the total damages awarded of almost $2M, in practical terms both Group 4 and News were jointly liable.
Amongst the many lessons to be taken from the case, it is a reminder to employers who have placed employees under the day to day supervision of third parties that they cannot abdicate their responsibility to provide a workplace that is safe and without risk to their employees' physical and mental health. It also makes it clear that a failure to provide a workplace that is free from physical and verbal abuse may expose an employer to damages for breach of the employee's contract of employment.
It is also important not to overlook that the law considered in the judgment was far from a complete analyses of the various heads of liability to which Group 4 and News were exposed upon the facts. Upon any view both companies and Mr Chaloner were exposed to prosecution for breach of their statutory duties to Mr Naidu under occupational health and safety legislation, and, all could also have been exposed to civil and potentially criminal proceedings under anti discrimination legislation.
Lulham v. Shanahan, Mitchell, Dickinson & DM & SA Watkins Pty Ltd t/a Watkins Steel  QADT 11
A decision of the Queensland Ant-Discrimination Tribunal which involved a successful complaint alleging a course of conduct – a pattern of behaviour – that amounted to sexual harassment.
The complainant, Mr Lulham, was a boiler maker working for Watkins Steel.
In the last 12 months of his employment he was subjected to various, clearly offensive and reprehensible, behaviour by several of his co-workers, including:
- statements in the workplace inferring that he was homosexual;
- statements in the workplace to the effect that he was a paedophile;
- statements to and amongst his co-workers to the effect that he "often had sex with little boys";
- suggestions that he frequented gay bars;
- suggestions that he engaged in bestiality with rodents (gerbils); and
- physical assaults when he was grabbed by one of the perpetrators who simulated sexual intercourse with him.
As perhaps the inevitable result of this behaviour, Mr Lulham developed a depressive illness and, eventually, became unable to work for a period (found to be 12 weeks) and left his employment with Watkins Steel.
He initiated proceedings in the Queensland Anti-Discrimination Commission, alleging that he had been sexually harassed. Ultimately that claim was successful in the Anti-Discrimination Tribunal, which awarded him compensation, against both Watkins Steel and the actual perpetrators, of $26,000.
Except for the treatment by the ADT (necessarily) of the behaviour in question as "sexual harassment", in every respect the behaviour of the perpetrators met the Code definition of harassment. The behaviour:
- was clearly unwelcome and unsolicited;
- was clearly offensive, intimidating and humiliating (if not also threatening);
- was clearly repeated in an ongoing pattern of behaviour; and
- not only constituted a risk to Mr Lulham's workplace health and safety, but a risk that crystallised in an actual injury.
A sexual harassment case arising out of bullying type behaviour (applicant suffered 'post traumatic stress disorder')
- The facts would have supported a prosecution for a breach of the relevant obligations under the WHSA, had the regulator in Queensland taken that course.
- The applicant could also have made a workers' compensation claim. We are not told whether he did or not but, regardless, workers' compensation insurance would not have covered the employer's liability in the sex harassment proceedings.
- When seeking for risk management purposes to define the outer limits of the meaning of "workplace harassment", don't get too carried away with the "sexual harassment" qualification. Make sure both risks are clearly covered without worrying too much about any dividing line between them.
- Other jurisdictions do not define workplace bullying or harassment to exclude "sexual harassment" (eg refer to the WorkSafe Victoria Guidance Note: Prevention of Bullying and Violence at Work). 'Cross-border' employers with common systems and policies will need to settle on a common definition, regardless of State and Territory distinctions.
- Other types of unlawful discriminatory treatment (of which sexual harassment is but one example) are not excluded from the Code definition – things like racial and religious vilification, vilification upon the grounds of sexual preference, or victimisation under the ADA.
- When seeking to risk manage behavioural type risks, employers need to take an integrated approach that covers all relevant risks to health and safety, and not try to draw any fine distinctions between various types of behaviour. The point, after all, to seek to eliminate risks to health and safety, however caused.
Hunt v. Rail Corporation of NSW 37
In this case the worker, a NSW RailCorp manager, was awarded $20,000 by the NSW Administrative Decisions Tribunal, because the employer was found to be vicariously liable for sexual harassment to which she was subject. The harassment took the form of offensive, and reoccurring, graffiti in the men's toilets and the placement of pornographic material, by persons unknown, in the manager's office.
The Tribunal found that the conduct in question was undertaken to humiliate and harass the worker, by creating an environment in which mail staff of the employer would see the graffiti that demeaned her. It also found that "given the nature of the antagonistic environment in the workplace, Ms Hunt would eventually be made aware of its existence and would therefore be affected the same way she would have had the graffiti been written in a more public space."
For its part the employer argued that it should not be liable, because it had undertaken numerous steps to prevent sexual harassment of its workers, including specific steps to prevent ongoing harassment of the manager. These included extensive investigation of the incidents; ongoing monitoring of the toilet areas and a range of other preventative measures.
Claim for compensation for sexual harassment
- The employer was found to be vicariously liable for the ongoing sexual harassment of a female worker, because, despite the existence of appropriate controls, it had not taken sufficient steps to prevent the relevant conduct from occurring.
- Particular shortcomings occurred in the training of its staff. Problems included the fact that training was not conducted before relevant events occurred; training was not compulsory, and; the employer did not make the arrangements necessary to ensure that all workers attended the training.
- The result was that the employer could not establish that its requirements for appropriate conduct and behaviour had in fact been communicated to its workers.
In particular it had conducted staff training about workplace behaviour including briefings about harassment and inappropriate behaviour. Some 17 training sessions were conducted for relevant staff over a period of about 18 months. However, not all employees attended and participation in training was not compulsory.
The employer was found not to have taken appropriate steps to prevent the harassment occurring. The shortcomings in its relevant systems and processes included:
- failure to ensure that all relevant staff participated in training eg to make the training compulsory and to facilitate attendance by all workers;
- the fact that the graffiti kept reappearing indicated that not all staff were aware of relevant policies; and
- staff training did not occur until well after relevant incidents occurred.
Q-Comp v Foote 38
Mr Foote's claim was for payment of workers' compensation benefits for a psychological injury stemming from alleged "systemic bullying" occurring over a period of years. The claim was resisted by the statutory insurer and initially rejected, but eventually allowed on appeal.
The factual history of the claim was extensive and complex. In summary, the workers' workplace appears to have been quite dysfunctional involving numerous conflicts and a number of grievances lodged against Mr Foote. He made a complaint of his own in June 2002, alleging a significant period of bullying and 'mobbing'.
The employer did nothing about the complaint until about 3 months later and after he had followed it up. He was told that an enquiry was to be initiated investigating allegations made both by and against him. The terms of reference for the enquiry did not allow for any investigation of the worker's mobbing allegations.
Following the investigation the worker was informed that he was liable to disciplinary action and given an incomplete copy of the investigation report. As part of this process he was transferred to a different role, potentially limiting his career aspirations.
Some months later he submitted an application for compensation based on psychological injury allegedly suffered over the period of his employment. The insurer's initial rejection of the claim was based upon the statutory exception for work related psychological injuries stemming from 'reasonable management action reasonably taken".
Successful claim for workers' compensation benefits for a stress injury following a bullying complaint
- The claim was allowed because the employer's efforts to deal with and manage the complaint were inadequate.
- The case highlights the importance of a proper complaint and investigation process, undertaken by a competent and experienced investigator.
- Delay in the progression of complaint management, as a contributor to liability, is a common theme from the cases. Complaints need to be followed up as quickly as possible and, where the process will be prolonged, the complainant needs to be kept informed of the progress of the investigation.
- Employers also need to set their control targets at the 'lowest common denominator'. Foote is an example of the application of the 'egg-shell skull' principle, which is to the effect that the wrongdoer's liability will not depend on the susceptibility of the 'ordinary' person but, rather, upon the individual frailties of the individual victim.
The Industrial Court held that the exception was not available, and in fact that that the investigation of Mr Foote's complaint and the employer's subsequent actions were unreasonable because:
- the investigation had taken too long, compared to the rate at which complaints against Mr Foote had been investigated;
- the employer had not kept Mr Foote informed about the progress of the investigation
- the terms of reference for the investigation did not correspond with Mr Foote's complaint;
- the investigation was not sufficiently thorough. No adequate attempt was made to identify the detail of Mr Foote's concerns;
- his transfer to another position was significantly detrimental to his chosen career path; and
- the employer largely ignored indications that Mr Foote was suffering from distress.
It made no difference to the claim that Mr Foote suffered from a pre-existing psychological condition which may have contributed to his injury. The employer was obligated to deal with him "with all his faults".
Wilkinson v. Birdon Group 39
A sacked clerical assistant was awarded $16,000, 26 weeks' pay, by the New South Wales Industrial Relations Commission in compensation for unfair dismissal.
She had had a disagreement with a co-worker over what she believed could be a mistake on a spreadsheet.
Two months later many of her duties had been redistributed, prompting her to ask her employer if she was being "managed out". She continued to undertake the minimal duties required of her.
Three months after this she was told to take two weeks' leave and to look for another job. She refused and was later instructed to - and took - two weeks of paid leave.
When she returned to work, the general manager told her only to answer phones and "not to touch anything else or do anything else. You are sitting outside with the dogs. I'll pay you to sit outside with the dogs but you are not going to be here much longer."
An unfair dismissal claim
- Clearly what occurred here amounted to bullying?
- Wilkinson illustrates, in a completely 'over the top' way, how a misguided 'performance management' process can (a) amount to bullying behaviour (b) result in a stress injury and (c) lead to an industrial claim, in this case for a remedy from what was found to be a 'constructive' termination of employment.
- The point is that performance management processes must contain appropriate controls to ensure that 'feedback' and 'constructive criticism' do not become susceptible to claims of 'bullying'. This will require appropriate training of those involved in performance management processes (both giving and receiving) and relevant cross referencing between those processes.
- See also the decision in Claveria v. Pilkington Australia Limited (No 2)  FCA 1917. In that case the employer was found to have sacked a worker after he had complained to his union about alleged bullying and harassment. The result was that the AIRC ordered his reinstatement, the employer to pay more than $27,000 in compensation, and the employer to pay a penalty of $4,000 for terminating the worker unlawfully. A further example of a 'performance management process' gone completely off the rails leading to industrial liability.
- As noted in the paper 'reasonable management action taken in a reasonable way' is excluded from the definition of 'workplace harassment' in the Code. Those who will want to rely upon that exception will need to both know about it and understand it. The same exception generally applies to exclude psychological injuries flowing from 'reasonable management action reasonably taken' from statutory workers' compensation schemes.
The clerk said she would not give the general manager the satisfaction of resigning, saying he would have to fire her, to which he allegedly replied "Piss off and get out of my office, and go and sit with the dogs."
The general manager, who confirmed the substance of the conversation though denying certain words, conceded that his remarks were inappropriate.
The clerk took five months' stress leave and returned to find someone else had taken her job and that she'd have to find a new role. She believed her employment had been terminated, and did not return to work.
These facts were found by the IRC to amount to unfair termination of the clerk's employment at the initiative of the employer eg a constructive dismissal, for which the clerk was entitled to compensation.
The IRC found the actions of the employer were deliberately designed to cause the employee to leave her job, and so amounted to termination of the employment at the initiative of the employer eg a constructive dismissal.
"The employer's conduct was insensitive, disingenuous and designed to harm [the employee] in her employment...."
"The conduct and demeanour of [the manager] in that meeting and his reference to her 'sitting with the dogs' is objectionable, intimidating, patronising and totally unacceptable."
1 For a primary statement of the '5 pillars' see, eg, section 27A (1) Workplace Health and Safety Act 1995 (Qld). In relation to 'workplace harassment' generally, see Prevention of Workplace Harassment Code of Practice 2004, discussed further below.
2 As to which see the Code, section 1.4.2.
3 A copy of the Code is available at: http://www.dir.qld.gov.au/publications/type/codesofpractice/index.htmc
4 WHSA, Part 4, Division 2. See, eg, section 41. The Code was made on 19 April 2004 and commenced on 1 June 2004 as an "advisory standard". Under the WHSA as then enacted, advisory standards were, and the Code was (and is) expressed to expire 5 years after commencement. However, under subsequent amendments to the WHSA effective from 18 November 2004, advisory standards as then in force were continued as codes of practice, expiring 10 years after commencement. The text of the Code as published by the Queensland Department of Industrial Relations does not reflect this, but despite the information contained in it, the Code will not expire until 18 March 2014.
5 See eg the WorkSafe Victoria Guidance Note – Prevention of bullying and violence at work (2003) the text of which is available at http://www.workcover.vic.gov.au .
6 These are taken from the sample Workplace Harassment Prevention Policy contained in Appendix 1 to the Code.
7 Based on overseas research. See paragraph 7.1 of the Code.
8 In Queensland vilification of a person upon the grounds of race, religion, sexuality or gender identity is unlawful under the Anti- Discrimination Act 1991 and, in some circumstances, can amount to a criminal offence.
9 See section 2 of the Code: Impact of workplace harassment.
10 See section 2 of the Code: Impact of workplace harassment.
11 WHSA, section 28.
12 See WHSA, Part 3, Division 2.
13 WHSA, section 36.
15 As reported by OHS Alert, 8 December 2008, www.ohsalert.com.au .
16 WHSA, section 24.
17 WHSA, section 26.
18 WHSA, section 26.
19 WHSA, section 27A (2).
20 WHSA, section 27A. Refer also to the Risk Management Code of Practice 2000.
21 WHSA, section 24.
22 WHSA, section 37(1).
23 WHSA, section 37(2).
24 See the Code, section 6.
25 The Code, section 4: Risk Management Process.
26 WHSA, Part 7, Workplace Consultative Arrangements.
27 The Code, section 5: Consultation.
28 See the Code, section 7.2: Recording the outcomes of risk assessments. See also paragraph 2.4 of the Risk Management Code of Practice 2000 for more information about record keeping in the risk management process.
29 See the Code, section 8: Decide on and implement control measures to prevent or control exposure to the risks.
30 See the Code, section 8.1: Workplace Harassment Policy. The Code includes a description of the elements for inclusion in an effective policy, and an example stand alone workplace harassment prevention policy.
31 See the Code, section 8.2: Complaint handling system.
32 See the Code, section 8.3: Human resource systems.
33 See the Code, section 8.4: Training and education.
34 Inspector Gregory Maddaford v. MA Coleman Joinery (NSW) Pty Ltd  NSWIRComm 317. These were proceedings brought by the Inspector on appeal from an original decision of the Victorian Industrial Magistrates' Court. In the original proceedings each of the directors of the company were fined $1,000.
35  FCAFC 120.
36  NSWSC 618. The ultimate outcome has since changed after an appeal. In particular, Group 4 was found, on appeal, not to be liable, but for present purposes the issues ventilated in the original trial judgment continue to be instructive. The appeal judgment is reported at  NSWCA 377.
37  NSW ADT 152 (24 July 2007)
38  QIC 76 (10 September 2008)
39 (2005) 56 AILR 200-167 (4 April 2005)
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.