Australian Food & Beverage Group Pty Ltd v Cadbury Schweppes Pty Ltd

[1997] ATMO 35

Trade marks act 1955 and trade marks act 1995

decision of a delegate of the registrar of trade marks with reasons

Objections to Applications for Extension of Time to Serve Evidence in the Matter of Applications under s23 of the 1955 Act and s92 of the 1995 Act by AUSTRALIAN FOOD & BEVERAGE GROUP PTY LTD for the Removal from the Register of Trade Marks Nos 242491, 242492, 244043 and 244044 in the Name of Cadbury SchWeppes Pty Ltd

Background

Applications under s23 of the Trade Marks Act 1955 (the s23 applications) for the removal of the above-mentioned trade marks from the Register were lodged by Australian Food & Beverage Group (AFBG) on 20 March 1995. Notices of opposition to the applications were lodged by the registered proprietor of the trade mark COPPER KETTLE, Cadbury Schweppes Pty Ltd (Cadbury) on 27 September 1995. Service of the evidence in support of the applications was completed by AFBG on 1 July 1996. Extensions of time for service by Cadbury of its evidence in answer were allowed until 1 February 1997. A third application for extension of time to 1 April 1997 was objected to by AFBG.

Applications under s92 of the Trade Marks Act 1995 (the s92 applications) for the removal of the same four registrations were filed by AFBG on 24 May 1996 and notices of opposition to those applications were filed by Cadbury on 12 September 1996. An extension of time for the service by Cadbury of evidence in support of the oppositions was allowed from 12 December 1996 to 12 February 1997 but a second application for an extension to 12 April 1997 was opposed by AFBG.

Both matters were set down for hearing in Canberra on 27 June 1997.  Mr Colin Oberin of Arthur Robinson & Hedderwicks, solicitors, chose to be heard by telephone for Cadbury.  Ms Annick Vincent of Gilbert & Tobin, solicitors, also made submissions by telephone on behalf of AFBG.

Submissions

Ms Vincent began by detailing the history of the concurrent sets of applications. In relation to the s23 applications she pointed out that the former attorneys for AFBG, Spruson & Ferguson, patent attorneys, had in fact, by letter dated 19 December 1996 to the Registrar, objected to the allowance of the second application by Cadbury for extension of time to file evidence in answer, that from 1 December 1996 to 1 February 1997, which by an oversight of the Registrar had been allowed without giving AFBG the opportunity to be heard on the objection. The grounds of that application were that:

the parties have initiated bona fide settlement negotiations and further time is required to conduct and conclude these negotiations...

The ground of AFBG’s objection was that there had been no negotiations between the parties.  Moreover, Cadbury had not offered sufficient justification for the allowance of a late application for extension.  The third application for extension of time, from 1 February 1997 to 1 April 1997, had been made on the same grounds as the second.  AFBG objected on the same grounds as before, namely, the absence of negotiations between the parties.

With regard to the extensions of time for service of evidence in support of the s92 oppositions AFBG also objected to Cadbury’s first application, from 12 December to 12 February 1997, which was nevertheless allowed. That application had been made on the same grounds as the applications in relation to the s23 applications. AFBG again objected to Cadbury’s second application for extension on the grounds of lack of negotiations between the parties.

Ms Vincent submitted that in the case of the s23 applications the provisions of s130 of the 1955 Act, which is the general extension of time provision, applied. In the case of the s92 applications she pointed out that by virtue of s224(8) of the 1995 Act and reg 21.28(f) of the Regulations applications for extension of time for the service of evidence in opposition proceedings is excluded from the operation of s224 of the Act and are governed instead by reg 5.15 which provides as follows:

Extension of period to serve evidence and service of further evidence

5.15   (1)     A party to the opposition proceedings may apply to the Registrar:

(a)for an extension of the period for serving a copy of the evidence under regulation 5.7, 5.10 or 5.12; or

(b)for permission to serve a copy of further evidence on the other party.

(2)   The Registrar may grant an application on reasonable terms specified by the Registrar.

(3)   The Registrar must not grant an application unless the Registrar:

(a)is reasonably satisfied that the applicant has served a copy of the application, and of any documents accompanying the application, on the other party; and

(b)has given the parties a reasonable opportunity to make representations concerning the application; and

(c)is reasonably satisfied that:

(i)in the case of an application to which paragraph (1)(a) applies—the extension of the period for serving a copy of the evidence; and

(ii)in the case of an application to which paragraph (1)(b) applies—permission to serve a copy of further evidence;

is appropriate.

(4)   For the purposes of paragraph (3)(b), the representations may be made in writing or at a hearing or by such other means as the Registrar reasonably allows.

(5)   If the Registrar grants an application under paragraph (1)(b) on terms that include service of a copy of the further evidence within a specified period, a party to the opposition proceedings may apply to the Registrar for an extension of that period.

(6)   Subregulations (2), (3) and (4) apply to an application under subregulation (5).

The applications for extension of time for service of evidence in the case of the s92 applications are made under the provisions of reg 5.7 and therefore come within the terms of reg 5.15(1)(a).

Ms Vincent submitted that the decision whether or not an extension of time was allowable in the present proceedings depended on a consideration of the matter in light of the factors outlined in Lyons v Registrar of Trade Marks (1983) 1 IPR 416, namely,

a)    whether a proper case has been made out justifying the extension;

b)   whether sufficient reasons have been provided;

c)    the public interest, and

d)   the relative inconvenience to the parties concerned.

The first of those propositions derives from the decision in Vangedal Nielsen v Smith (1980) 33 ALR 144. From that and the Lyons case, supra, the following two requirements emerge:

a)    the party seeking the extension of time must furnish some good reason why it has been unable to serve evidence in support within the prescribed time, and

b)   it must also discharge the burden of establishing a proper case to justify the extension sought.

Ms Vincent submitted that Cadbury had done neither. In relation to both the s23 and s92 applications for extensions of time it had relied on “bona fide negotiations” which afbg had denied. AFBG had indeed formally objected to the second application for extension of time on the s23 applications, from 1 December 1996 to 1 February 1997, which, she pointed out, was lodged late, and yet was approved. Likewise, the first extension of time application on the s92 applications, which was not supported, as required, by a statutory declaration, was allowed over the objections of AFBG. In both cases Cadbury, in its subsequent applications for extension, relied on the same ground disregarding the denial of negotiations by AFBG.

Ms Vincent referred me to the decision in Lord Bloody Wog Rolo v United Artists Corporation (1988) 11 IPR 516 in which the Registrar’s delegate refused an application for a second term of three months’ extension of time, the grounds being identical to the first, because no progress had been established towards settlement of the dispute, nor had the opponent lodged any evidence in support of the opposition. In Universal City Studios v Frankenstein Pty Ltd (1994) AIPC ¶91-044 the delegate refused a second extension of time for service of evidence in support requested on the grounds that “further time was required to conduct negotiations”. It was held that the making of an offer did not constitute a negotiation. That term was appropriate only where there was a “mutual discussion and arrangement of terms” (Macquarie Dictionary).  That decision was cited with approval in ACI Australia Ltd v Shelm Merchandising Co Pty Ltd (1995) 32 IPR 563 which added that “the mere fact that a party to a dispute has made a settlement offer does not absolve it from the need to show that, on balance of the elements referred to in Lyons, supra, it is entitled to the extension it seeks”.  In Lord Rolo, supra, citing Leeton Steel Works v Lind Engineering (1985) 4 IPR 445 and Bundy Corp v Rent-A-Wreck (1985) 5 IPR 307, it was said that:

an extension of time may not be granted simply in order to make good a careless oversight or a mere casual regard for the times prescribed by the Act and regulations.

Also, in the ACI case, supra, it was held that:

a reason which may suffice for one extension can wear thin with repeated use and ultimately be found wanting.  The failure to meet that onus resulted in refusal in Virtual Reality v W Industries Ltd (1994) 28 IPR 455.

In the present case, she argued, Cadbury had been called to account once already in relation to its second application for extension on the s23 applications, a late-filed application, from 1 December 1996 to 1 February 1997, which was, due to an error by the Office, approved. However, in its third application Cadbury relied on the same ground, that it required further time “to conduct and conclude negotiations”.  The same applied, mutatis mutandis, to the extensions on the s92 applications. Ms Vincent submitted that that reason was not available to Cadbury because:

a)    it was discounted by AFBG after the first application for extension (I October 1996 to 1 December 1996), and

b)   it was strongly contested on 19 December 1996 by AFBG who clearly stated that any communication between the parties had not been in the nature of negotiations.

Cadbury had therefore failed to meet the onus on it:

a)    to provide sufficient reasons justifying the extension, and

b)   to explain why the time so far allowed had been insufficient

in terms of the Lyons and Vangedal cases, supra.

As to the other factors to be taken into account in relation to extension of time matters, relative inconvenience to the parties and the public interest, Ms Vincent referred to the Frankenstein case, supra, in which it was held that such factors need to be considered only if the opponent had removed its initial onus explaining why the time already allowed had been insufficient.  In that case once the delegate had concluded that the opponent had not established a proper case for granting the required extension of time he did not proceed to consider those two issues.

In Re Application by Jonathan Sceats Design Pty Ltd (1989) AIPC 90-600 it was held that while the Registrar may be required to appreciate the sometimes enormous task of negotiating undertakings, the ensuing delays which may occur as a result of such negotiations, the Registrar “must give greater weight to the general public interest of effective, timely administration of the provisions of the Act”. Also, in Pioneer Hi-Bred Corn Co v HyLine Chicks Pty Ltd (1979) RPC 410 (CA NZ) it was held that although there is some public interest in allowing relevant information to be brought into proceedings before the Registrar, there is also a public interest in the expeditious determination of applications:

The failure of an applicant, as a consequence of its own tardiness, to gain that which it seeks, is not (on the face of it) a matter of public interest.

Finally Ms Vincent submitted that Cadbury had been aware of the s23 applications for removal of the trade marks since 8 and 23 March 1995 when it was served with copies of the applications. If the opposed extensions of time were to be granted Cadbury would have had more than two years to consider and gather evidence of use of the mark. It had known since 1 July 1996 when it was served with the evidence in support that it would be required to serve evidence of use. The corresponding dates for the s92 applications were 7 June 1996 and 1 July 1996 respectively. She argued that the lax prosecution of the matter by Cadbury amounted to a casual disregard of the times prescribed by the Regulations and that the less than candid reasons offered for the applications for extension cast doubt on whether any steps had actually been taken towards the preparation and filing of its evidence. She reiterated that the onus of justifying an application for extension of time lay on the applicant, an onus which it had not discharged, that Cadbury had not actively pursued the preparation of evidence and no evidence was immediately foreshadowed.

Mr Oberin also cited the Vangedal and Lyons cases, supra, and to the Pioneer case, in particular with regard to the question of the public interest in allowing relevant information to be brought into proceedings before the Registrar which he said was most pertinent in the present case as the evidence had now been served.  Therefore, he said, Cadbury were not seeking an indefinite deferral of the matter or to delay proceedings but rather to regularise the service of the evidence within the time being sought.

Mr Oberin then referred to The Australian Olympic Committee v Brennan (1994) IPR 44 in which the Deputy Registrar considered the following relevant factors:

1.    The length of time already allowed;

2.    The reasons put forward to justify the extension;

3.    The seriousness of the opposition;

4.    The inconvenience likely to be suffered by the two parties; and

5.    The public interest in the matter.

He went on to make submissions in respect of each of the nominated factors:

1. the length of time already allowed

Mr Oberin pointed out that AFBG had applied for and been granted a total of 10 months in which to serve its evidence in support of the s 23 applications. Cadbury, on the other hand, had applied for extensions amounting to 8 months during which time some negotiations had taken place and the evidence had been collated, prepared and served within 3½ months of its being notified of the breakdown of negotiations. He referred to the words of the Deputy Registrar in the AOC case, supra:

...it has long been recognised that the statutory 3 months commonly falls short of the practical time required to collect and serve supporting evidence...and it is regularly the case that extensions of up to 9 months are requested and allowed.

The present case, he said, involved extensions of only six months in the case of the s23 applications and four months in the case of the s92 applications in the presently contested extensions to April and only a further two months until all the evidence was served on 2 June 1997. He submitted that that was not an unusually long time in view of the fact that the evidence was served within 3½ months of the notification of the breakdown of negotiations. Therefore the extensions sought were not unreasonable and not difficult to justify.

2) The reasons put forward to justify the extension

Mr Oberin accepted that the onus was on the applicant for extension of time to explain on sufficient grounds the cause of its delay: Vangedal Nielsen v Commissioner, supra, and that the Registrar must be satisfied that a proper case has been made out justifying the extension.  He submitted that Cadbury had made out sufficient grounds for the grant of the extension sought.  Its application for the contested extension had set out two grounds:

1.    The parties had initiated bona fide settlement negotiations and further time was required to conduct and conclude those negotiations; and

2.    Subject to the outcome of the negotiations to prepare and serve the opponent’s evidence should that prove necessary.

The application also set out details of the steps that had been taken in an attempt to          settle the matter:

*   The solicitors for Cadbury, Arthur Robinson & Hedderwicks (ARH), sent a letter to the agents for AFBG, Spruson & Ferguson (S&F), dated 9 August 1996;

*   ARH had been instructed by Cadbury that on 7 October 1996 Cadbury had written to the managing director of AFBG enclosing a further copy of ARH’s letter to S&F with a view to settlement of the matter.

*   ARH had also been instructed by Cadbury that the managing director of AFBG telephoned Cadbury on 8 November 1996 and the parties had without prejudice discussions about the matter with a view to settlement.  It was Cadbury’s understanding that both parties contemplated that discussions were to continue.

There was some additional contact between ARH and S&F on 11 February 1997 in connection with a proposed licence.

Thus, submitted Mr Oberin, while there may be some dispute as to the substance or relevance of the communications between the parties it was not disputed that they took place.  He contended that the sequence of events did constitute bona fide negotiations with a view to settlement and that it was the understanding of Cadbury that they were continuing, until the receipt of S&F’s letter denying the existence of negotiations.  In that letter, however, it was stated that “there was some discussion concerning overseas markets in respect of which our client considered that some agreement could be reached”.  Mr Oberin contended that that was evidence that negotiations were taking place although in the end they came to nothing: AOC case, supra.

In the alternative, Mr Oberin submitted that the second ground relied on in the applications for extension of time, that further time was required to complete preparation of evidence, was sufficient reason for the allowance of the extension: Jamieson v American Dairy Queen Corporation (1985) 5 IPR 551.

3) The seriousness of the opposition

Mr Oberin claimed that it was clear from the evidence ultimately served on 2 June 1997 that there was a serious opposition on foot and that Cadbury were not simply attempting to delay proceedings.

4) The inconvenience likely to be suffered by the parties

Mr Oberin referred to the words of Beaumont J in the Lyons case:

Although a more detailed explanation of the position may have been desirable, I think that it is possible to construe the rather bald statement of the ground for the request (supra) as indicating that, although efforts had been made in that behalf, it was not possible to finalize the form of the evidence sought to be adduced in the time allowed by the regulation. I accept that, on one view, it is possible to read the stated ground as being little more than an assertion that more time is required. However, the statement of the ground does at least attempt some explication of the position. Further, I think that the delegate was entitled to have regard to the notorious fact that opposition proceedings usually involve the gathering of evidence from third parties and this usually takes considerable time. Given that background, and given the construction of the statement of the ground which was open, I am of the opinion that the delegate did not exercise his discretion in any improper way. (Emphasis added).

In the present circumstances, he said, it had been necessary to obtain information from Cadbury’s offices in Sydney as well as Melbourne, from a licensee near Ballarat and from various persons in the trade in Queensland and Tasmania. Cadbury had at all times been actively engaged in collating the requisite evidence of use despite what it considered to be continuing negotiations.  However, it needed further time to prepare the evidence in a suitable form for service.  That had now been done.

If the applications for extension of time were not allowed there was a risk that the registered trade marks of Cadbury would be removed from the Register despite the existence of evidence already prepared and served which would be shut out so that Cadbury would be denied the opportunity to have relevant evidence of use of the mark taken into account.  On the other hand, AFBG would not be inconvenienced by the grant of the extensions of time (as evidenced by their own extensions and by the delaying of the hearing of the matter of the present extensions).  AFBG would not suffer any undue hardship by the allowance of the extensions and there was no mention of any disadvantage to AFBG in the letter of objection from S&F of 19 February 1997.  In Mr Oberin’s view the balance of convenience clearly favoured Cadbury.

5) The public interest in the matter

Mr Oberin submitted that in the circumstances of the present applications the public interest would be best served by allowing Cadbury an extension up to the time of service of its evidence of use and thus allow a full opposition hearing to determine the removal applications on their merits and not on a mere technicality: Vangedal Nielsen.

Mr Oberin concluded that Cadbury had made out a proper case for the allowance of the extension of time up to the date of service of its evidence, ie, 2 June 1997, which he argued would be consistent with current Office practice and the precedents to which he referred.  He also referred me to a number of recent decisions in relation to patent matters to the effect that even where an extension is refused the party seeking the extension should be given a very short extension beyond the date of the decision within which to serve such of the evidence as may be available for service: Minproc Technology v CSIRO (1996) AIPC ¶91-244; Firebelt v MacDonald Engineering Company (1996) AIPC ¶91-205 both following the decision of Burchett J in the Federal Court in Ferochem v Commissioner of Patents (1994) AIPC ¶91-057 where he said, at 38208:

...even where an application for a particular period, such as the two months sought here, is regarded as unjustified, it seems to me a decision maker, having a discretion of the kind conferred by Regulation 5.10, should always consider whether some short period ought to be allowed, so that an applicant who may have assumed some extension would be granted will not be shut out entirely from presenting evidence that may be immediately available.

Mr Oberin therefore submitted that I should allow the extensions sought so that the matter could proceed on the merits.

Decision

I accept Ms Vincent’s submission that in the case of the s23 applications the relevant provision of the 1955 Act is s130, which is as follows:

130. Where, by this Act, a time is specified within which an act or thing is to be    done, the Registrar may, unless otherwise expressly provided, extend the time         either before or after its expiration.

In the case of the s92 applications the provisions of reg 5.15, which I have reproduced above, are applicable.

It is to be noted that while s130 is completely discretionary in reg 5.15 the discretion is confined to the extent that the Registrar must not allow the extension unless he or she is reasonably satisfied that the extension is appropriate.

I propose to deal with each of the criteria mentioned by Mr Oberin, deriving from the AOC case, supra.

On my calculations, which differ slightly from those of Mr Oberin, AFBG was allowed a total of a little more than 9 months for the service of its evidence in support of the s23 applications (29.9.95 to 11.7.96), whereas Cadbury, if the applications for extension to 1 April 1997 are allowed, will have been granted a total of 9 months (1.7.96 to 1.4.97) to file evidence of use. In the case of the s92 applications the total time allowed will have been 7 months (12.9.96 to 12.4.97). The length of time considered by the Deputy Registrar in the AOC case was 9 months, a period which she considered, prima facie, not difficult to justify in view of the recognition that the statutory 3 months commonly falls short of the practical time required to collect and serve supporting evidence.

I have looked at the evidence now lodged by Cadbury in support of its opposition to removal and, while not wishing to draw any conclusions as to the merits of the case, it seems to me that the opposition mounted by Cadbury is serious.

As to the balance of convenience as between the parties this criterion also would appear to support the grant of the extension sought.  If Cadbury is refused an extension of time within which to adduce its evidence of use of the mark and that evidence is therefore shut out it could very well find itself in the position of having its trade mark removed from the Register even though it could prove use of the mark within the relevant period.  I do not wish to be understood as saying that compliance with the Regulations is a “mere technicality”, as it has sometimes been put, only that the consequences for Cadbury of refusing the extension of time are much more serious than those for AFBG if the extension were to be allowed.

As to the question of the public interest I would simply refer to the words of Kitto J in Kaiser Aluminum & Chemical Corp v Reynolds Metal Co (1969) 120 CLR 136 at 143, a patent case which concerned the exercise of the Commissioner’s discretion to allow an extension of time to file notice of opposition to the grant of a patent:

In my opinion, however, it is in the public interest that a serious opposition by a person entitled in fact to oppose the grant of a patent should be dealt with on the merits, rather than that it should be shut out in consequence of a failure in procedure, lamentable though the failure may be

In the present case I would say that the public interest in the purity of the Register requires that removal actions should be decided on the merits rather than that a registered proprietor should be excluded from defending its registration in consequence of a failure in procedure, lamentable though the failure may be.

Again, in Pioneer Hi-Bred Corn Co v HyLine Chicks Pty Ltd [1979] RPC 410 Richards J stated, at 435:

Within reasonable limits it furthers the public interest to allow consideration of any available evidence that will assist in providing a clearer picture of the awareness of rival marks as affecting the likelihood of deception or confusion.

The evidence sought to be relied on, having been served and filed, is now available to AFBG and the Registrar and in my opinion the public interest would be best served in allowing the removal applications to be decided on the merits.

I come now to the nub of the dispute between the parties, which I have left until last, whether there were in fact any bona fide negotiations between the parties, that is, whether the reasons put forward for requesting the extension of time are made out.  Cadbury relied on:

• a letter dated 9 August 1996 from ARH to S&F to which it received no response;

• a letter from Cadbury to the managing director of AFBG dated 7 October 1996 enclosing a further copy of the above letter of 9 August 1996;

• a telephone call from the managing director of AFBG to Cadbury on 8 November 1996 in which the parties had “without prejudice” discussions with a view to settlement;

• as a consequence of the above communications it was Cadbury’s understanding that both parties contemplated that discussions were to continue;

• neither ARH nor Cadbury had been informed by AFBG or its agent that discussions were at an end.

There is no evidence as to the alleged telephone conversations but copies of the letters of 9 August 1996 and 7 October 1996 are in evidence.  In the former mention is made of telephone conversations between a Susan Storor of ARH and Ken McInnes of S&F on 8 May 1995 and 5 March 1996 in which Mr McInnes informed ARH that AFBG had filed removal applications to remove the trade mark COPPER KETTLE because it proposed to use the trade mark and to seek registration of it.  The gist of the letter is an attempt to warn AFBG off as its plan was “misconceived” because of the use of the mark by Cadbury.  It stated that the continuation of the removal applications would be futile and invited AFBG to withdraw them.  There was no suggestion in this letter of any offer of compromise or of a willingness on the part of Cadbury to negotiate a settlement.  The letter of 7 October 1996 from one E R Sutherland, Vice President, External Development, of Cadbury to Mr John Geber, Managing Director of AFBG, reiterates that Cadbury wished to ensure that AFBG was aware that Cadbury had extensively used the registered trade mark COPPER KETTLE and was currently doing so.  It does, also, however, make reference to an “approach” to Mr Geber by Mr Andy Cosslett, Managing Director of Cadbury, “last year”.  Otherwise, the letter encloses a copy of the letter of 9 August 1996 with a wish to hear more from AFBG.

The above evidence is clearly inadequate to establish positively that negotiations between the parties were taking place.  However, I note that in its application dated 13 May 1996 for extension of time to 11 July 1996 in which to serve evidence in support of the applications for removal Spruson & Ferguson relied on the following ground:

A proposal towards settlement has been put forward to the Trade Mark Applicant’s (sic) attorney.  We have been advised by that attorney that the proposal has been passed on to the Trade Mark Applicant (sic) but no instructions have been received because the client contact is presently overseas.  In the meantime a portion of the evidence in support has now been collected but should settlement not be possible further time will be required to complete and serve all the evidence.

It is not possible from the evidence to form a clear picture of the relationship between the parties at the date of filing of the applications for extension of time. On the one hand AFBG claims that there were no negotiations on foot; on the other Mr Oberin, while acknowledging in his submissions that negotiations were broken off 3½ before the filing of Cadbury’s evidence of use, also claimed that as at 31 January 1997 and 12 February 1997, the dates of filing of the disputed applications for extension of time in relation to the s23 and s92 applications respectively, Cadbury still believed that settlement was a possibility. It can at least be said, I think, and from AFBG’s own evidence in the matter, that there had been sporadic attempts at reaching some sort of agreement. In those circumstances, and in view of the conclusions I have formed as to the other relevant criteria to be considered, I think I must give Cadbury the benefit of the doubt.

I intend to accede to Mr Oberin’s request and grant Cadbury an extension of time up to the date of the filing of its evidence of use in order to allow the hearing of the substantive matter of the opposition to removal of the trade marks from the Register to be expedited.

Conclusion

I allow Cadbury an extension of time to 1 June 1997 to serve evidence in answer to the applications under s23 of the Trade Marks Act 1955 for the removal of trade marks 242491, 242492 244043 and 244044 from the Register.

I also allow Cadbury an extension of time to 12 June 1997 to serve evidence in support of its opposition to applications under s92 of the Trade Marks Act 1995 for removal of the trade marks 242491, 242492, 244043 and 244044 from the Register.

I direct that costs in the matter of the oppositions to the applications for the above extensions of time are to be costs in the cause.

Michael Homann
Hearing Officer

9 July 1997