Applicant v Respondent

[2016] FWC 6565

[2016] FWC 6565

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.589 - Application for interim decision

Applicant
v
Respondent
(U2016/769)

COMMISSIONER CLOGHAN PERTH, 21 SEPTEMBER 2016

Application for interim decision.

[1] On 26 August 2016, I issued a decision [2016] FWC 6047 in an application by the Respondent for an order that the hearing dates of 7 and 8 September 2016 be vacated and that “the matter be relisted on dates to be determined by the Commission in consultation with the parties”.

[2] In my Decision, I concluded:

"[63] While I have dismissed the Respondent’s request for the order, I am now better informed with respect to the availability of individual witnesses.

 [64] Having considered the individual leave arrangements of the witnesses, the following dates will ensure that six (6) of the seven (7) Respondent’s witnesses are available to give their evidence:

• 19 to 21 September 2016 inclusive.





 [65] Alternatively, the following dates will ensure that all seven (7) witnesses are available to give their evidence:

• 4 to 6 October 2016 inclusive.





 [66] If the parties cannot agree on one (1) of the two (2) options immediately above, the Commission will set the matter down without further consultation.”

[3] On 29 August 2016, the Applicant’s representative advised that he was unavailable on the September dates but available on the October dates. The Respondent’s representative advised that its legal team was not available on the October dates but available on the September dates.

[4] On 2 September 2016 at 10:49 am, my Associate issued a notice of listing advising the parties that the hearing would be listed on 4, 5 and 6 October 2016.

[5] Four (4) minutes later, Mr Billing, Corrs Chambers Westgarth (Corrs) sent an email to my Associate requesting an urgent meeting with me to discuss a “pressing matter”.

[6] The “pressing matter” was reduced to an application by the Respondent on 6 September 2016. The application is for an order that I recuse myself from further hearing the matter pursuant to s.589 of the Fair Work Act 2009 (FW Act).

[7] The grounds for the order sought, as set out in the application are that:

“… the Commissioner is the presiding Commissioner in [the] matter, and he has made decisions and contacted and discussed the matter with both the parties on an ex-parte basis which has demonstrated an apprehended bias such that it is inappropriate that he continue to hear this matter.

[The Respondent] relies on the witness statements of Nicholas David Ellery and Steven Heathcote in support of this application and its written submissions.”

[8] The application was the subject of a conference on 5 September and a hearing on the same day. Hearings were also conducted on 6 and 7 September 2016.

[9] At the conference and hearings on 5 and 7 September 2016, the Respondent was represented by Mr S Billing. At the hearing on 6 September 2016, the Respondent was represented by Mr C Strike of Corrs.

[10] The Applicant is represented by Mr S Heathcote.

[11] For the reasons that follow, I have determined, having considered all the circumstances, that I should not recuse myself from continuing to hear this matter.

RELEVANT PROCEDURAL BACKGROUND

[12] The Applicant was dismissed by the Respondent on 4 February 2016 for serious misconduct.

[13] On 23 February 2016, the Applicant made an application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal by the Respondent.

[14] The application was the subject of conciliation before a Conciliator on 8 April 2016. Conciliation was unsuccessful and referred to me for arbitration on 11 April 2016.

[15] On 12 April 2016, I issued procedural directions for a hearing on 7 June 2016.

[16] On 20 April 2016, consistent with the procedural directions, the Respondent’s in-house Employment Law Counsel provided documents that the Respondent intended to rely upon in the hearing on 7 June 2016.

[17] On 21 April 2016, Mr Billing provided notice to the Commission of Corrs acting for the Respondent.

[18] On 4 May 2016, Mr Paton of Corrs, emailed the Commission and relevantly advised that, “unfortunately one of the witnesses we expect to call, and our counsel are unavailable on that date [7 June 2016]”.

[19] The procedural directions were amended and a hearing scheduled for three (3) days commencing on 25 July 2016.

[20] Prior to 25 July 2016, the Respondent objected to an order sought by the Applicant for the production of documents on the basis that they were legally privileged (LPP), or it would be oppressive for the Respondent to comply with such an order.

[21] For reasons relating to fairness, it was necessary to vacate the 25 July 2016 hearing into the substantive matter of the application. The Commission conducted a hearing into the Applicant’s application for the production of documents and the Respondent’s objection on LPP grounds.

[22] On 1 August 2016, I issued my Decision with respect to the Applicant’s application for the production of documents and the Respondent’s objection. 1 I dismissed the Respondent’s LPP objection.

[23] On 2 and 9 August 2016, I received emails from Mr Paton regarding availability of witnesses and the Respondent’s Senior Counsel.

[24] On 15 August 2016, I received an email from the Respondent’s solicitor expressing concerns at the significant delay in having the matter heard and determined, and requesting that the Commission list the matter as early as possible.

[25] On 16 August 2016, I listed the matter for hearing on 7 and 8 September 2016.

[26] On 18 August 2016, the Respondent made an application pursuant to s.589 of the FW Act, for an order that the hearing dates of 7 and 8 of September 2016 be vacated and that “the matter be relisted on dates to be determined by the Commission in consultation with the parties”.

[27] The Commission received submissions from the parties on 18, 22, and 24 August 2016 regarding the Respondent’s application to vacate the hearing dates of 7 and 8 September 2016.

[28] On 26 August 2016, I issued my Decision 2 in relation to the Respondent’s application to vacate the hearing dates of 7 and 8 September 2016. My conclusion to the Decision is set out in paragraph [2] above.

[29] On 2 September 2016 at 10:49 am, my Associate advised the parties that the substantive hearing into the application was listed for 4, 5 and 6 October 2016.

[30] At 10:53 am on the same day (2 September 2016) my Associate received an email from Mr Billing seeking “an urgent meeting…in Chambers. The purpose of the meeting is so that the parties can jointly raise a pressing matter…”.

[31] On the same day (2 September 2016) my Associate listed the matter for a conference on Monday 5 September 2016 at 12:00 noon. The conference progressed into a hearing.

[32] On 6 September 2016, Mr Billing made this application on behalf of the Respondent and subject of a hearing on that day and 7 September 2016.

APPLICANT’S RESPONSE TO RESPONDENT’S APPLICATION

[33] On 5 September 2016, Mr Heathcote submitted as follows:

“MR HEATHCOTE:  Thank you, sir.  The position from the applicant's perspective is that he has no concerns at all about you hearing the matter, except - and I only put this caveat - the concern we have is that given your upcoming retirement and given that the respondent is likely to appeal on the basis that Mr Billing has outlined, any decisions you make, including a decision to recuse or not to recuse yourself, that the applicant may well be deprived of his hearing date in any event.

His concern is not you hearing it.  In fact, as you've indicated, he would be delighted to get to a hearing date at the earliest possible opportunity.  His concern only is if you continue to hear the matter, that the logistics of dealing with the application that has been foreshadowed and the outcome of any decision that you might make, might leave the applicant in a position where those decisions are simply subject to appeal in circumstances where they otherwise might not be.  So his concerns are not bias per se.  His concerns are entirely practical and logistical.

Perhaps I'll just put it this way:  the applicant has no concerns about bias, apprehended or otherwise.  The applicant's concern is when can he get to a hearing and, if he gets to a hearing and he succeeds at hearing, what are the likely outcomes for him.  Not so much based on the merits of the case and the decision at first instance but whether, based on the concerns that Mr Billing has put before you, the applicant - if he succeeds - might be then confronted with an appeal that otherwise might not have happened.” 3

EVIDENCE

[34] The relevant evidence of Mr Ellery is contained in the following paragraphs and related to a meeting I had with him on 30 August 2016:

“12. Commissioner Cloghan then said to me that he wanted to pass on the following feedback to me:

a. He did not think that Corrs had handled the communications very well in the programming of the matter;

b. David Paton, a solicitor employed by Corrs, had not been clear in what he had been saying to the FWC in relation to issues or difficulties about the programming of the Matter; and

c. If Mr Paton had been clear, Commission Cloghan probably would have been able to hear the Matter earlier.

13. I recall saying to Commissioner Cloghan in response that I did not know very much about the Matter, as it was not my file. I said that Mr Paton was not currently working at Corrs, he was on a leave of absence and was now working with the Federal Government. I said I would pass on his feedback to Simon Billing, the partner at Corrs who has carriage of the Matter.

14. Commissioner Cloghan then said to me that Ian Neil, counsel for [Respondent] in the Matter, did not seem to have been well prepared for a hearing in the Matter before him at an earlier date.

22. Since this time, I have not heard, or received any communication, from the FWC in relation to the Matter.

23. On Wednesday, 31 August 2016 at 11.00am, I met with Mr Billing and informed him of my conversation about the Matter with Commissioner Cloghan.

24. I did not prepare a file note concerning my conversation with commission Cloghan on Tuesday, 30 August 2016, or make any notes or recording of it.” 4

[35] The relevant evidence of Mr Heathcote is:

“12. On 31 August 2016, sometime in the late afternoon or early evening, I retrieved a voicemail message that Commissioner Cloghan had left for me. As I recall it, commissioner Cloghan’s message simply requested that I return his call.

13. Sometime around 0900-0930, I spoke to Commissioner Cloghan on the phone. My recollection is that I made the call from my mobile phone.

14. As I recall our discussion, Commissioner Cloghan told me that he wanted to settle some dates on which this matter could be heard.

15. I already knew that he was likely to be experiencing difficulty finding appropriate dates because of the limited availability of the Respondent’s witnesses and Senior Counsel.

16. I understood that the Commissioner was trying to find a date that:

(a) accommodated his schedule of existing commitments;
(b) allowed the Respondent access to its key witnesses; and
(c) gave him time to write a decision before his scheduled retirement date on 31 October 2016.

17. I explained that I could not appear on any of the September dates because I was already committed to appearing in a civil matter that had been listed many months ago. I told him that:

(a) I didn’t believe that I could excuse myself from that civil matter without behaving unethically, or at the very least, unfairly, to the party that was relying on me to represent them;

(b) the Applicant had already waited a long time to get to arbitration;

(c) the Applicant would need representation because he would not be in a position to argue his own case;

(d) the Applicant would have great difficulty finding another lawyer to act for him and would certainly struggle to meet any additional costs that imposed;

(e) the Respondent, by comparison, had access to the resources of a very large law firm, and a choice of well-credentialed barristers accessible to them in any of the capital cities; and

(f) any significant delay would inevitably lead to the file being handed over to another Commissioner and that further delay would probably be the result – and further delay was an undesirable outcome.

18. I told the Commissioner that, in my view, the Respondent was in a better position to adjust to inconvenient timing than was the Applicant.

20. The discussion was reasonably short, perhaps only a few minutes in length, and it ended with the Commissioner telling me that he would need to consider carefully what to do next.

21. Later that day, I received an emailed message from Simon Billing. Simon is a partner at Corrs Chambers Westgarth, and he is the lawyer with supervisory responsibility for this matter. The email contained a request that I call Simon urgently.

23. Simon told me that he had become aware of Commissioner Cloghan having had a private conversation with Nick Ellery that canvassed issues related to this matter and, the timing difficulties that the parties were experiencing.

25. Simon told me that Commissioner Cloghan had raised a number of matters with Nick, and in the course of doing so, expressed a number of criticisms about the way in which the Respondent’s case had been conducted.” 5

Emails of the parties with respect to the nominated dates in Decision

[36] Email from Mr Heathcote on 29 August 2016 at 12:21 pm as follows:

“I spoke with the Respondent’s solicitors this morning to see whether we could agree on one of the 2 sets of alternative hearing dates to which the Commission referred in last Friday’s decision.

I am unable to appear on 19-21 September 2016 because of existing court commitments.   I am available on 04–06 October 2016.

I understand from my discussions with the Respondent that they are in the opposite position.   I am told that Ian Neill SC is available for the September dates, but has existing court obligations that clash with the October dates.

Unfortunately, we haven’t found a solution to the timing problems.”

[37] Email from Corrs on 29 August 2016 at 12:41 pm as follows:

“As mentioned in Mr Heathcote’s email below, we confirm that the Respondent is available to appear on 19 to 21 September dates. 

However, Ian Neil SC and Simon Billing (counsel briefed and solicitor with carriage of this matter since May 2016) are both unavailable for the whole of the proposed October dates, (4 to 6 October).

Further, as noted in the Commissioner’s decision one witness is not available to be present at the hearing on the dates in September.  If the Commission choses to proceed on the September dates the Respondent respectfully requests permission from the Commission to explore the possibility of that witness giving evidence by way of telephone or video.”

CONSIDERATION

[38] Difficulties programming the Applicant’s application for hearing into the merit or otherwise of his dismissal on 4 February 2016, are set out in Decision of 26 August 2016 [2016] FWC 6047.

[39] Having provided the parties of two alternative hearing dates when six (6) or seven (7) of the Respondent’s witnesses are available, I requested the parties to agree on one or the other dates.

[40] By 12:41 pm on the first working day after issuing Decision [2016] FWC 6047, the Commission was not only informed that the parties could not agree on the dates but the reasons for their inability to agree.

[41] In Decision [2016] FWC 6047, I made the following observation:

“[55] Before concluding, I wish to say that I have not considered the availability of Senior Counsel in consideration of the Respondent’s request for an order that the hearing dates be vacated. I have done so because the Respondent has submitted that the sole reason for seeking the order [to vacate the hearing on 6 and 7 September 2016] is the unavailability of witnesses. In doing so, I should note that the Commission has been advised, by email, on a number of occasions, the available dates of Senior Counsel.”

[42] Having considered the Applicant’s desire for the Commission to list the matter as early as possible and the Respondent’s sole concern being availability of witnesses, I listed the matter when all seven (7) of its witnesses are available.

[43] The Respondent does not assert actual bias on my behalf, but apprehended bias. The Respondent submits:

“MR BILLING:  - - - as a sitting member of the Commission dealing in arbitral mode.  I mean, I can understand that there is a difference between the conciliation dispute settling role of the Commission and its formal arbitration mode, but unfortunately the position we're placed in is in arbitral mode.  The member of the Commission is in the same position as a sitting judge determining a matter.  That is, ex parte discussions with counsel or representatives of parties is highly likely to lead to the view that there is apprehended bias.

It's not a matter of actual bias, it's a matter of apprehension of bias and there are many authorities to support that view.” 6

[44] It was plain and obvious from my Decision in the Respondent’s application for an order to vacate the earlier dates of 7 and 8 September 2016, that I had decided to hear and determine the substantive matter on one of two alternative dates.

[45] The primary function of the parties was to tell me they agreed on one of the alternative options. Not only did the parties not agree on one of the alternative dates, but went further and gave me the reason why they could not agree. The reason was simply unavailability of counsel.

[46] Having given the reasons for why they could not agree, the parties “opened the door” to me having to decide between one of two dates for the matter to be heard.

[47] The Respondent states that I have “made decisions”. The only decision the Commission has made, is in relation to the procedural matter of listing the hearing dates.

[48] In the written submission, it states that I “communicated privately with both parties” – that is true.

[49] The purpose of meeting with Mr Ellery, as Managing Partner, was primarily to express my exasperation at the inability of the Commission to set the matter down for a substantive hearing and recounting the history of proceedings to achieve this outcome. I was seeking his assistance, as Managing Partner, to obtain a hearing date. Similarly, this was the context of my discussion with Mr Heathcote.

[50] In applications such as these, the Commission is in an invidious position. I propose to refrain from commenting on the evidence of Mr Ellery and Mr Heathcote.

[51] The meeting with Mr Ellery occurred two days after I issued my Decision [2016] FWC 6047 and 24 hours after the parties could not agree on one of the two alternative dates for the hearing.

[52] In my meeting with Mr Ellery, I indicated that I would be speaking to Mr Heathcote and did eventually on the following day.

[53] My job, in part, is to sort out various procedural matters prior to any hearing into the substantive matter in issue. These matters are to ensure that the hearing proceeds efficiently and effectively. This is the third interlocutory matter which I have had to determine prior to hearing the fairness, or otherwise, of the Applicant’s dismissal on 4 February 2016.

[54] Mr Billing agrees that the substantive issue in this application that I recuse myself relates to listing of the substantive matter for hearing and determination. However, Mr Billing states that this is not a “mere procedural or administrative matter”. 7

[55] As a general rule, the Commission does not discuss a case with one party to the exclusion of another party. However, it is common practice in conferences, whether in person or by telephone, to have separate discussions. Further, and importantly, because both parties are not present at a discussion, it should not be presumed that any outcome supports an apprehension of bias on the part of the Commission.

[56] In this case, the Commission was faced with two options on when the arbitral hearing would take place. By its very nature, one party had to be unsuccessful.

[57] Throughout the interlocutory proceedings, I have scrupulously avoided becoming involved or making any comment on the merits, or otherwise, of the respective cases to ensure both sides have a fair arbitral hearing.

[58] My concern and frustration has been in ensuring that the matter proceeds to hearing as quickly as possible, in a fair and orderly way.

RELEVANT LEGAL PRINCIPLES

[59] Mr Billing submits that the authorities on whether such communication, which I conducted, are improper, “will depend on the circumstances, including their nature, subject matter and their sequence and extent”. 8 I agree.

[60] In his written submission, Mr Billing concludes:

“It is plainly evident to a fair-minded lay observer that there is a real and not remote possibility that there has been (and may be more broadly in the future) apprehended bias on the part of the Commissioner to such an extent that there can be no confidence that the Commissioner will decide this matter in an impartial and judicial manner. Accordingly, it is, with respect, impossible for the Commissioner to continue to hear the matter” 9;

and in oral submissions:

“Commissioner, you know what occurred during those two discussions and your intentions, whether they be good intentions or not, are beside the point.  There is an apprehension of bias as a result of conduct of that nature by a sitting member.  It's as simple as that…” 10

[61] On the authorities, I am not persuaded that it is as simple as portrayed by Mr Billing.

[62] The reference to a fair-minded lay observer was considered in Johnson v Johnson by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, as follows:

“Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have detailed knowledge of the law, or of the character or ability of a particular judge (27), the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take into account the exigencies of modern litigation. At the trial level, modern judges, responding to the need for more active case management, intervene in the content of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgement, as inscrutable as the Sphinx.” 11

[63] Further:

“….the hypothetical observer is no more entitled to make snap judgements than the person under observation.” 12

[64] Kirby J separately in Johnson v Johnson referred to the salutary warning in Re JRL; ex-parte CJL (90) (JRL):

“…judicial officers in Australia were obliged to discharge their duties unless disqualified by law. They were told not to accede to readily to suggestions of an appearance of bias, lest parties be encouraged to seek such disqualification without justification. Applications of that kind might sometimes be made in the hype of securing an adjudicator more sympathetic to a parties cause. Or they might be made because of strategic advantage that may thereby be secured especially the interruption of lengthy delays (91) and the delays consequence upon attaining a fresh start in a busy court or tribunal” (footnotes omitted).

[65] In Carbotech, after referring to JRL, Brereton J stated the relevant legal principle in the following way:

“The passages to which I have referred in JRL establish that while the (mere) fact that an ex parte communication takes place is an important one, it is not decisive, and closer examination may show that the informed reasonable lay observer might not form an apprehension of bias despite such communications. It will depend on the facts of each case whether communications between a judicial officer and one party to the exclusion of the other give rise to a reasonable apprehension of bias, and one must look to the whole of what happened to establish whether such an apprehension could be inferred.” 13

[66] Further, in Fisher, the Victorian Supreme Court, Court of Appeal, express the application of the relevant legal principles as follows:

“…there is no inflexible rule that any communication between the judge and a party will necessarily disqualify the judge from making a decision”. 14

[67] The Respondent referred to MWP. In MWP, Gummow A-CJ, Hayne, Crennan and Bell JJ observed:

“In order to establish such a reasonable apprehension, it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgement.” 15

[68] In John Holland (which the Respondent also referred to) the Full Court in its reasons for Judgement at paragraph 23 state:

“It does not follow from this, however, that the mere making of a unilateral communication raises a presumption of impropriety (as John Holland’s argument assumed), thereby casting on the parties involved (including the practitioner, chambers staff who received or engaged in the communication and, in some cases, the judge) an onus to prove the contrary...”

[69] With these relevant legal principles in mind, I now turn to whether a reasonable lay observer could infer an apprehension of bias as a result of my communication to the parties in all the circumstances.

[70] In my view, the reasonable lay observer:

• would recognise the need for the Commission to break the impasse between the parties to find a hearing date;



• would be aware that the Commission was faced with one of two options regarding the dates of hearing;



• would be mindful that the Applicant has waited for nearly eight (8) months to have his alleged unfair dismissal heard and determined;



• take into account that the unfair dismissal process is intended to be “quick, flexible and informal”; and



• acknowledge that prior to these proceedings, the application had been the subject of two (2) previous interlocutory proceedings – one of which related to listing of the matter for hearing.

[71] When these circumstances are taken into consideration, I am satisfied that the man or woman in the street would see this issue as procedural and administrative, and not going to the substance of the Applicant’s application.

[72] A reasonable bystander may also observe and note that:

• the Respondent claim of an apprehension of bias came after it failed to gain its preferred dates for the substantive hearing;



• the Respondent was aware of the Commissioner’s ex-parte discussion with Mr Ellery two days before it took action to raise the issue of apprehended bias; and



• the Respondent asserted an apprehension of bias, only after the Commission determined the dates for hearing which it did not prefer.

[73] The reasonable observer may also note that the Commission previously vacated hearing dates, on application by the Respondent, because of unavailability of witnesses and set a date when all witnesses could attend.

[74] The reasonable lay observer may say that if the Respondent apprehended bias by the Commission, that claim should have been made in a timely way before any decision was made relating to the dates of the hearing. Having not done so, the lay observer may reasonably form the view that because the Respondent had not achieved its preferred dates, the Commission was biased. The Respondent was not inhibited, at all, from raising the matter prior to the Commission’s Decision on 2 September 2016.

[75] Finally, and in the alternative, the reasonable observer may say that the Respondent could not raise the issue of apprehended bias until the Commissioner’s decision on the dates were known. However, the fictional observer may then form the view that if the Respondent had achieved its preferred dates, in all likelihood, the Respondent would not have raised the issue of an apprehension of bias at all.

[76] I now want to conclude with Mr Billing’s submission that it is plainly evident to a fair minded observer that, there has been a real possibility of apprehended bias “(and may be more broadly in the future)…on the part of the Commissioner” 16 (my emphasis).

[77] If a person throws themselves off the 12^th floor of a building, there is good reason to conclude that he or she will fall to the ground. We do not need to see such an event to doubt that the person will fall downwards.

[78] Mr Billing attempts to draw a conclusion that because I have allegedly exhibited an apprehension of bias in relation to not selecting its preferred hearing dates, it demonstrates bias for the future, and consequently, renders me ineligible to conduct matters in the future.

[79] What the Respondent is submitting is that, similar to a person throwing themselves off the 12^th floor of a building, it is able to predict a future event even though it has not seen that event. I am unable to accept such an argument. In my view, there is no basis to conclude that what has allegedly happened in interlocutory proceedings, will repeat itself in arbitral proceedings.

[80] The Applicant’s remedy for alleged unfair dismissal will be determined on the facts, evidence, case law and legislation. To conclude anything different would be wrong.

CONCLUSION

[81] For the above reasons, I am unable to agree with the Respondent’s submission that a fair minded lay observer would apprehend bias in my determination of which option for hearing the substantive matter as set out in my Decision [2016] FWC 6047. Accordingly, it is necessary to proceed and hear and determine the Applicant’s application.

COMMISSIONER

Appearances:

S Heathcote of Counsel on behalf of the Applicant.

S Billing and C Strike of counsel on behalf of the Respondent.

Hearing details:

2016:

Perth,

5, 6 and 7 September.

 1   [2016] FWC 5006

 2   [2016] FWC 6047

 3   Transcript PN40-PN42

 4   Exhibit R3

 5   Exhibit A2

 6   Transcript PN33 and PN34

 7   Transcript PN220

 8   Exhibit R4 (17)

 9   Exhibit R4 (18)

 10   Transcript PN36

 11 [2000] CLR 488 - para 13

 12 [2000] CLR 488 - para 14

 13   Carbotech Australia Pty Ltd v Yates [2008] NSWSC540, [46]

 14   The Queen v Steven King Fisher [2009] VSCA 100

 15   Michael Wilson & Partners Limited v Nicholls and Others 244 CLR 427 - para 69

 16   Exhibit R4 (18)

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