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Roche DP in Universal Consultancy Services Pty Ltd v Mrinal Datta [2008] NSWWCCPD 87 (19 August 2008)

45. At the arbitration, counsel for Universal submitted that "likely" in section 53 means "on the balance of probabilities - 51per cent". I note several authorities have considered the meaning of the word "likely" in a different context: Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 27 FLR 400 at 410; Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 339; Boughey v R (1986) 161 CLR 10 at 14 per Gibbs CJ, at 18-22 per Mason, Wilson, Deane JJ, at 42-4 per Brennan J, and held that "likely" means "probable". Whether there is any difference between "probable" and "on the balance of probabilities" has not been argued and I express no concluded view. For the purpose of the present appeal, I accept that "likely" in section 53 means "on the balance of probabilities", as submitted by Universal's counsel at the arbitration.

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