Ballico Bertona Pty Ltd (trading as Gas Centre W.A.)

[1998] IRCA 17

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

INDUSTRIAL LAW - alleged UNLAWFUL TERMINATION - whether termination at the initiative of the employer - no point of principle

Industrial Relations Act 1988 (now Workplace Relations Act 1996) - s 170DE, 170EA.

Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.

MICHAEL JOHN BALLICO V BERTONA PTY LTD Trading as GAS CENTRE W.A.
WI 1406 of 1996

R.D. FARRELL JR
PERTH
24 MARCH 1998

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WI 1406 of 1996

BETWEEN:	MICHAEL JOHN BALLICO APPLICANT
AND:	BERTONA PTY LTD TRADING AS GAS CENTRE W.A. RESPONDENT
COURT:		RD FARRELL JR
DATE OF ORDER:		24 MARCH 1998
WHERE MADE:		PERTH

THE COURT ORDERS THAT:

1. The application is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WI 1406 of 1996

BETWEEN:	MICHAEL JOHN BALLICO APPLICANT
AND:	BERTONA PTY LTD TRADING AS GAS CENTRE W.A. RESPONDENT

COURT:	RD FARRELL JR
DATE:	24 MARCH 1998
PLACE:	PERTH

REASONS FOR JUDGMENT

This is an application under Section 170EA of the then Industrial Relations Act 1988 now known as the Workplace Relations Act 1996 (“the Act”) for compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Michael Ballico (“Mr Ballico”), by the respondent, Bertona Pty Ltd trading as Gas Centre W.A. (“the Company”).

The unlawful termination provisions of the Act apply only where the termination is at the initiative of the employer: Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200. The Company contends that there was no termination at the initiative of the employer because Mr Ballico resigned his employment or, alternatively, because he abandoned it.

Mr Ballico contends that, while he was absent from his employment, he had been granted leave for the period of his absence. He contends he did not resign, but was dismissed. He further contends that the Company breached Section 170DE of the Act, because it did not have a valid reason to terminate his employment.

Finally, Mr Ballico contends that he was not paid the amount to which he was entitled on termination, even if the Court finds that he resigned.

Findings of Fact

The Court heard evidence from several witnesses concerning the events leading to the end of Mr Ballico’s employment with the Company. Several documents were also put into evidence.

I will set out my findings of fact concerning those events. Those findings must be based on an assessment of the evidence before me. There were many conflicts in that evidence, so that I have sometimes had to accept one version of events, rather than another. Under the laws of evidence, the onus was on Mr Ballico, as the applicant, to prove that his termination was at the initiative of the Company.

The Parties

The Company was engaged in the business of selling and installing gas appliances. The business was based in a display room at Wangara in the northern suburbs of Perth. The Company’s directors and shareholders were Mr Stuart Thompson and Ms Dorothy Skarpaas. Mr Thompson and Ms Skarpaas were partners in their personal lives as well as business associates.

Mr Thompson worked full-time for the Company, performing installations and repairs. Ms Skarpaas supervised the Company’s finances and administration, and took responsibility for its overall business direction. She had other employment outside the Company. I am satisfied that Mr Thompson deferred to Ms Skarpaas’ decisions concerning matters affecting the Company.

Mr Ballico had been unemployed for over twelve months; there were health-related restrictions on the type of work for which he was suited. He was married and had three children, aged between twelve and fifteen years of age.

Mr Ballico was a friend of Mr Thompson of about two years’ standing; they had been neighbours in the past. Through Mr Thompson, Mr Ballico also became friendly with Ms Skarpaas.

21 March 1996: Mr Ballico is Employed by the Company

The possibility that the Company could employ Mr Ballico was raised from time to time over a period of months during his regular social interactions with Mr Thompson and Ms Skarpaas.

Ms Skarpaas had some misgivings about employing Mr Ballico because she believed he had had a sporadic employment history. However, Mr Thompson says he wanted to assist Mr Ballico with his domestic difficulties, which were aggravated by the family’s low income.

Eventually, when it became apparent that it would be necessary for the business to hire an additional employee to work in the store, it was agreed that the Company would employ Mr Ballico as a “Sales Person”, commencing on 21 March 1996. His duties were to be “counter sales, public relations and (dealing with) telephone enquiries”. These details are taken from a Jobstart Wage Subsidy Agreement completed on behalf of the Company on 20 March 1996.

Mr Ballico had alerted Mr Thompson and Ms Skarpaas that he qualified for a wage subsidy from the Commonwealth Employment Service because he was classified as disadvantaged and unemployed. The subsidy was available for the first twenty weeks of employment and was worth $150 per week. Mr Ballico’s gross wage was initially $419 per week, and was increased to $507 per week in mid-June 1996, after about three months’ employment.

As well as Mr Thompson, Mr Ballico worked with Mr Simon Berry, who worked in the store performing a sales and administrative role, and with Mr Daniel Potts, who worked as a trainee gas-fitter with Mr Thompson. Mr Ballico regarded himself as the Senior Salesperson and de facto Manager of the store. Both Mr Berry and Mr Potts recall that Mr Ballico would tend to tell them what to do.

Mr Thompson did not have a drivers licence, so Mr Ballico was sometimes called upon to drive Mr Thompson as part of his duties, particularly after Mr Potts lost his drivers licence.

In addition to his wage, Mr Ballico received a $20 per week fuel allowance, which was later increased to $40 per week. He also received a one-off payment of $200, to purchase suitable work-clothes.

Mr Thompson agrees that during the winter of 1996, he permitted Mr Ballico to keep a second-hand gas heater worth $250, on the basis that Mr Ballico would pay for it out of his wages in $50 instalments. Ms Skarpaas was not aware of this arrangement. Mr Ballico concedes that he did not make the payments, and still owes the Company money for the heater. He agreed in the course of the hearing that the amount owed be set-off by the Court against any amount to which he may be entitled from the Company.

Wednesday, 7 August 1996: Mr Ballico Leaves Home

Mr Ballico regularly spent time at the home of Mr Thompson and Ms Skarpaas after work, especially if he had had to drive Mr Thompson home at the end of the day. He would usually join Mr Thompson for a few drinks on these occasions. While I have no doubt that work matters sometimes arose for discussion, I am satisfied that these visits were primarily social in nature.

After one such visit on the evening of Wednesday, 7 August 1996, Mr Ballico arranged to be collected from their residence by his wife, Mrs Karen Ballico, and taken home to dinner. It seems it was his birthday.

A serious argument ensued between Mr Ballico and his wife when they got home, apparently because the dinner had been burnt. The argument ended with Mr Ballico leaving the house; he says he believed his marriage was over.

Mr Ballico returned to Mr Thompson’s house, and spoke with Mr Thompson. Ms Skarpaas was in the bedroom when Mr Ballico arrived. She overheard Mr Ballico telling Mr Thompson he was leaving his wife. Ms Skarpaas did not rejoin Mr Thompson; she says she did not want to “validate” Mr Ballico’s behaviour. Instead, she stayed in the adjoining hallway listening to the conversation. Mr Ballico recalls Ms Skarpaas coming to the end of the hallway and asking Mr Thompson what was going on. Ms Skarpaas doesn’t recall doing so.

Mr Ballico was agitated. He told Mr Thompson he had had an argument with his wife, and that she was giving him the “best birthday present a man could want, a divorce”. He told Mr Thompson that he was taking time off and was going away to “get his head together”. While this was not put in the form of a request, I am satisfied that, in the context of their friendship, Mr Thompson’s failure to raise any objection to this course of action amounted to tacit permission for Mr Ballico to absent himself from work.

Mr Ballico told Mr Thompson that he didn’t want anybody to know where he was. He asked Mr Thompson for a loan; he was due to receive his next weekly pay in two days’ time. Mr Thompson gave him about $25, which he said was all he had with him at the time. Mr Ballico left.

Mr Ballico then went to the Wangara store at about 9.30pm and took $250 from the till. He left a handwritten note in the till, with the words:

“IOU $250 Mike”.

He said he regarded this as an advance on his wages, due later that week, and claims that Mr Thompson authorised this course of action during their conversation earlier that night. Mr Thompson denies doing so. On balance I accept that denial, given that Ms Skarpaas was listening to the conversation. While I could accept that Mr Thompson might have agreed to give Mr Ballico an advance on his wages, it is very unlikely that Ms Skarpaas would have stood by and allowed such an arrangement.

The next morning, Thursday 8 August 1996, Mrs Ballico telephoned Ms Skarpaas’ residence, asking whether she or Mr Thompson knew where Mr Ballico was. Ms Skarpaas replied that she didn’t know his whereabouts. Mrs Ballico confided in Ms Skarpaas about their argument the previous night. In the course of this conversation, she told Ms Skarpaas that during the argument Mr Ballico had thrown and broken a plate which was of some value to Mrs Ballico; Mr Ballico says it was 150 years old.

Following the conversation, Ms Skarpaas was convinced that Mrs Ballico was suffering continuing domestic abuse at the hands of Mr Ballico. Ms Skarpaas had herself suffered such abuse previously in her life, and therefore had particularly strong feelings on the subject. Ms Skarpaas had previously heard second hand that Mrs Ballico had once claimed that Mr Ballico had broken two of her ribs. It may be that the fact that Mr Ballico threw the plate was sufficient to confirm beliefs already held by Ms Skarpaas as to the nature of Mr Ballico’s relationship with his wife. Ms Skarpaas told the Court she believes she can recognise physical abuse when she sees it.

I should note that the Court was not required to make a finding as to whether any domestic violence occurred. While the fact that Ms Skarpaas believed that Mr Ballico engaged in domestic violence was potentially relevant, the truth or otherwise of that belief was not.  Mrs Ballico and her son gave evidence in support of her husband in relation to other matters but I restricted the evidence to be led on this issue.

Mr Thompson went to work that morning as usual. There was differing evidence concerning the discovery of the IOU. I am satisfied that Mr Thompson found and removed the IOU on the Thursday morning but, fearing Ms Skarpaas’ reaction, did not tell her about it until some time later, after Mr Ballico’s employment had ended. Mr Thompson no doubt hoped to sort it out on Mr Ballico’s return without the need to tell her. I think it unlikely that he drew her attention to it that night, as he recalls.

I accept the evidence of Mr Berry, who worked in the store, that he also noticed that the $250 was missing. He does not mention seeing the IOU, presumably because Mr Thompson had already found it.

The company issued its weekly wages each Friday. Mr Ballico’s usual pay was made up for the week from 2 to 8 August 1996, despite his not having attended work on 8 August 1996.

This decision not to dock Mr Ballico’s pay in his absence is an indication that Mr Thompson considered Mr Ballico to be taking some form of paid leave, rather than merely leave without pay.

It is also notable that no money was deducted to reimburse the $250 taken from the till, notwithstanding that Mr Ballico says it was intended as an advance on his wages.

Ms Skarpaas’ evidence was that she was concerned to ensure that Mrs Ballico was coping financially in Mr Ballico’s absence. In fact, on Friday afternoon, Ms Skarpaas took Mr Ballico’s wages over to Mrs Ballico’s home, buying her some milk and bread on the way. Mr Thompson could not therefore have deducted the $250 from the wages without Ms Skarpaas knowing.

Mr Ballico called both his young son and his wife to give evidence that Ms Skarpaas had told them respectively in a telephone call and on during the Friday afternoon visit that Mr Ballico had been given “compassionate leave”. Ms Skarpaas emphatically denies making any such statement.

Given Mr Thompson’s failure to object to Mr Ballico’s proposed absence on the Wednesday night and the decision to pay Mr Ballico for Thursday 8 August despite his absence

I am satisfied that Mr Ballico’s absence was not unauthorised.

In making that finding, however, I should not be taken to have rejected Ms Skarpaas’ evidence concerning her alleged conversations with Mrs Ballico and Mr Ballico’s son.

Sunday, 11 August 1996: Mr Ballico Returns Home

Mr Ballico arrived back home on Sunday, 11 August 1996. He rang Mr Thompson that evening and told him he was back, that everything was OK and that he would be back to work on Tuesday morning; Sunday and Monday were his rostered days off. It appears that this was a short conversation and that there was little discussion between them.

Mr Ballico claims that Ms Skarpaas then telephoned him and wanted him to take a further two weeks off as compassionate leave. Mr Ballico says he responded that he did not need the two weeks off. Ms Skarpaas denies that this conversation took place. I accept her evidence on this issue.

Monday, 12 August 1996: Mr Ballico Returns his Keys

Mr Ballico did not return to work on the Tuesday. Instead, he visited Ms Skarpaas and Mr Thompson at their residence in the early evening on Monday, 12 August 1996. The visit was not prearranged. Ms Skarpaas and Mr Thompson were home, as was Mr Potts, the trainee gas-fitter.

There is an important dispute in the evidence concerning what occurred during this visit.

According to Ms Skarpaas, Mr Ballico spoke primarily to her during that visit. She notes that Mr Thompson tried to ignore their conversation. Mr Potts also appears to have played no part in the conversation, no doubt considering it none of his business.

Ms Skarpaas says that Mr Ballico was behaving in an aggressive manner. Mr Thompson confirms that Mr Ballico was aggressive and “nervy”.

Ms Skarpaas says that Mr Ballico talked at her for at least 20 minutes. Mr Thompson recalls Mr Ballico talking about having lots of problems. Mr Potts recalls Mr Ballico talking about the pressure of his job, and the pressures at home. Ms Skarpaas says Mr Ballico concluded that he could not continue in the job. She says his mood remained aggressive throughout his monologue.

Ms Skarpaas says she was getting “pretty hot under the collar” by then. There had been no apology from Mr Ballico during this visit for his behaviour in the preceding week. At the end of the conversation, she lost her temper and told Mr Ballico that he should be concentrating on making sure that his children did not grow up with his problems.

She says Mr Ballico replied that he would have to leave before he got angry. He returned his shop keys by placing them on the breakfast bar, and left through the back door from the kitchen. Ms Skarpaas says he told her that if they wanted him back, they would have to beg him.

Mr Ballico’s version of events differs significantly.

Mr Ballico says that, after his telephone call to Mr Thompson on Saturday evening, he and his wife decided that he should take some more time off after all, to work through the difficulties in their relationship; he maintains there was an offer of two weeks’ compassionate leave.

Mr Ballico says that he went to see Ms Skarpaas and Mr Thompson on Monday night to tell them that he would take one week’s compassionate leave. He denies that he said anything about giving up his job, resigning or termination; it was, he says, the furthest thing from his mind. He says that they were happy with the proposition that he take leave and were smiling and waving at him as he left.

There are difficulties with this account. Obviously, it differs with that of Ms Skarpaas. Mr Potts also confirms that Mr Ballico made no reference to leave or to compassionate leave during his visit.

At times in his evidence, Mr Ballico also gave evidence about his visit which was inconsistent with his primary account.

At one point in his evidence he said he “had an inkling” that his job could be “on the line”, and that he knew he was in trouble. He deduced this, he says, from Ms Skarpaas’ demeanour. He says he knew she was upset.

He agrees that he left them the shop keys, but claims this was purely for their convenience. Significantly, he says that he told them “I’ll get these keys off you next week, if I’ve still got a job, if you still want me (my emphasis)” He says that the response was “Well, we’re thinking about that.”

Ms Skarpaas interpreted the events that evening as a resignation. She does not believe that they were ambiguous. However, Mr Thompson says that at the time he assumed that Mr Ballico would return to work the next day as usual. He recalls no talk about resigning, nor any suggestion that Mr Ballico would be on compassionate leave. It was not until he spoke with his wife after Mr Ballico left that he realised that Mr Ballico had resigned. Mr Potts does not recall Mr Ballico saying anything about coming back.

As is sometimes the case, each of the accounts of the visit is somewhat different. However, Mr Ballico’s account of obtaining approval for a further week’s leave receives no support from any of the other people present. Mr Thompson’s and Mr Potts’ accounts recall Mr Ballico recounting his problems, with references to pressures of work and at home, and then leaving his keys as he departed. One would expect Ms Skarpaas’ understanding and recollection of Mr Ballico’s conversation to be the most reliable given that, with Mr Ballico, she was most directly involved.

I accept Ms Skarpaas’ evidence and find therefore that Mr Ballico resigned. Even on Mr Ballico’s account, he left that night with his future employment dependent upon whether the Company still wanted him as an employee. I am satisfied this was because he had resigned. His decision to hand in his keys was made at the end of a long discussion in which he focused upon his personal problems, after Ms Skarpaas made a comment on his personal circumstances which he found offensive.

It may be that Mr Ballico was surprised that his resignation was accepted; he had an exalted view of the value of his contribution to the company. It may be that Mr Thompson would, in the absence of Ms Skarpaas, have chosen not to accept it. I accept that any considerations of friendship on the part of Mr Thompson were outweighed by Ms Skarpaas’ concerns as to Mr Ballico’s reliability and her distaste for his domestic behaviour. While such concerns might in part be inappropriate reasons to decide to dismiss an employee, there is no requirement that an employer talk an employee out of resigning.  

Mr Ballico did not attend work the next day, Tuesday 13 August 1996. On Wednesday 14 August 1996, Mr Thompson completed a Jobstart form notifying the Commonwealth Employment Service that Mr Ballico was no longer employed by the Company. Mr Thompson nominated 8 August 1996 as the date on which Mr Ballico finished work, and gave as the reason: “Self terminated”. The provision of those details are understandable in that Mr Ballico last worked on the Wednesday, and was regarded by the Company as having resigned on the following Monday.

On Thursday, 15 August 1996, Mr Ballico rang Mr Thompson to wish him a happy birthday and to pass on a tip for the horse races. Mr Thompson was working in the roof of a client installing copper pipes, and took the call on his mobile  telephone. Mr Ballico says he said “see you next week” and that Mr Thompson answered “yes”. Mr Thompson denies that there was any mention of Mr Ballico’s employment. I am not persuaded to accept Mr Ballico’s recollection on this point.

Relevance of Wage Subsidy Agreement

Mr Ballico was employed by Bertona from 21 March 1996 until 16 August 1996, a period of approximately 19 weeks. The wage subsidy arrangement was due to expire the following week.

I have taken this coincidence of timing into account in making my findings. However, I am satisfied that there was no connection between the two events. The fact that the Company had voluntarily increased Mr Ballico’s salary by $88 per week after three month’s employment supports the proposition that they were not motivated to terminate Mr Ballico’s employment by the impending loss of the $150 per week subsidy.

Friday, 16 August 1996: Mr Ballico Receives a Letter Confirming the End of his Employment

Ms Skarpaas says she composed an undated letter to Mr Ballico on the Wednesday or Thursday. She says it was as close to a letter of reference as he was likely to receive. It was received by Mr Ballico on Friday 16 August 1996, and read as follows

“Dear Mike

We deeply regret that your personal history and current situation precludes continuing with a challenging position, the attendant demands and associated pressure.

We wish you well, hope your personal issues are resolved and assure you of our gratitude for your efforts during your five months with GAS CENTRE WA.

Yours Sincerely

(signed)

Please Note: Group certificate and applicable holiday pay to be forwarded.”

Mr Ballico says he regarded the letter as a letter of termination, and claims it was the first indication he had that his employment was not to continue.

Mr Ballico immediately rang Mr Thompson and says Mr Thompson told him that Ms Skarpaas wanted to “do it” because of the way Mr Ballico treated his wife. Mr Ballico says that he then demanded his pay up to date and that Mr Thompson refused to pay him. Mr Ballico had, of course, already been paid for an additional day’s work. He was effectively seeking pay in lieu of notice or, perhaps on his account, further paid compassionate leave.

Mr Ballico says that he referred to the fact that he had “kids to feed” and was told that he should have thought of that before he “took off”.

The further dealings between Mr Ballico and the Company deteriorated from that point. Mr Ballico refers to making at least six calls to the Company in rapid succession, prompting a letter from the Company complaining of abusive telephone calls. He went to the store the next day and removed his personnel file. There were other incidents which I need not recount. Suffice it to say that by the date of the hearing, relations between Mr Ballico and his employers had broken down completely.

Additional Observations on Credibility

In this hearing, the demeanour of the witnesses played a more important role than usual in my determination of which evidence to accept.

In particular, the evidence of Ms Skarpaas was very convincing. It was clear, consistent and appeared to be a frank recounting of events as she saw them, for better or for worse, without regard to its significance to the issues in dispute. While she did not pretend to hold Mr Ballico in high regard, she readily conceded that, had he not resigned, his performance would have justified dismissal. The manner in which she gave her evidence led me to believe she was honest in her account.

Mr Thompson’s evidence was less clear. It was sometimes vague, and he sometimes gave the impression he was reconstructing matters of which he had no clear recollection. It was apparent that he bore Mr Ballico no malice. There were sometimes inconsistencies between his evidence and that of Ms Skarpaas, but they could generally be explained as resulting from differences of recollection, or from the fact that Mr Thompson was not paying attention or was not always present during the incident in question.

In contrast, the evidence of Mr Ballico, his wife and son was very consistent, and conveniently so. It seems very likely to me that the family had discussed their evidence in advance, as is perhaps understandable, and that the content of the evidence may have been affected, albeit innocently, by that discussion.

Mr Ballico’s evidence was not as convincing as that of Ms Skarpaas. He was ready to supply accounts more detailed than could plausibly have been remembered, suggesting that he was reconstructing incidents which he did not fully recall. His account of his visit on the Monday evening, when I have found he resigned, contained internal inconsistencies.

The evidence of Mr Berry and Mr Potts was brief. I apprehended some animosity from Mr Berry towards Mr Ballico, possibly resulting from events after Mr Ballico left his employment. Mr Potts’ evidence showed no such signs. His recall of the Monday evening visit was not detailed, and was consistent with his not having taken much notice of Mr Ballico’s discussion at the time.

Mr Ballico was sometimes agitated, emotional and volatile in the course of his evidence and later when he took over the conduct of his case after his counsel withdrew. I do not underestimate the stress that applicants can feel when giving evidence and, particularly, when representing themselves. Mr Ballico’s demeanour was, however, consistent with Ms Skarpaas’ account of his demeanour during the stressful period leading up to his resignation.

I am satisfied that he reacted to Ms Skarpaas’ comments about his personal problems by handing over the keys, telling her they would have to beg him if they wanted him to come back, and leaving. I am satisfied that no arrangement had been reached to grant him additional leave. In the circumstances, I accept that Ms Skarpaas was entitled to regard this as a resignation.

This was a resignation in the “heat of the moment”. Had he immediately contacted the Company as soon as he cooled down, it would be arguable that he would be entitled to withdraw the resignation. He did not do so.

Given his friendship with Mr Thompson, Mr Ballico may well have regarded his resignation as a first step, which he expected to be followed by an approach from Mr Thompson asking him to change his mind. He might not have genuinely wished to leave the Company. It is understandable that he might not have told his wife that he had tendered his resignation, given the fragility of their relationship and their financial pressures.

When he received the letter the following Friday, it became clear that his resignation had been accepted. The letter is ambiguous, but it is more readily understood as a confirmation of resignation rather than of dismissal.

Mr Ballico may have chosen to treat the letter as a dismissal, rather than seek to withdraw his resignation, because he did not wish to disclose to his wife that he had resigned. His initial focus appears to have been upon obtaining a payment in lieu of notice, rather than reversing the position.

Whether Mr Ballico’s Employment was Terminated at the Initiative of the Company

Given the findings set out above, I find that there was no termination at the initiative of the Company, and that the unlawful termination provisions of the Act therefore do not apply.

Other Claims

Mr Ballico’s accrued entitlements were not ever paid to him, notwithstanding the terms of the letter. This may have been due to the deterioration in the dealings between the parties. However, on the material before me, it seems that Mr Ballico’s accrued entitlements were in any event outweighed by the $250 “advance on wages” and the amount outstanding on the heater.

In accordance with the discussions during the hearing, I will therefore make no order in relation to those respective entitlements.

Conclusion

Accordingly, I will order that the application be dismissed.

I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar RD FARRELL

Associate:

Dated:            24 March 1998

Counsel for the Applicant:	Ms S Gaunt (5 & 6 December 1996)
Solicitor for the Applicant:	Sally Gaunt
Applicant appeared in person	(24 December 1996)
Counsel for the Respondent:	Mr A Lynn
Solicitor for the Respondent:	Andrew Lynn
Date of Hearing:	5, 6 & 24 December 1996
Date of Judgment:	24 March 1998