Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union

[2016] FCCA 1692

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION & ORS [2016] FCCA 1692

Catchwords:
INDUSTRIAL LAW – Application for imposition of pecuniary penalties – consideration of penalty.

Legislation:

Fair Work Act 2009 (Cth), ss.19, 408, 417(1), 512, 539(1), 546(1), 557(1)

Cases cited:
Alfred v CFMEU [2011] FCA 556
Brookfield Multiplex Engineering and Infrastructure Pty Ltd v McDonald [2014] FCA 389
Brookfield Multiplex FSH Contractor Pty Ltd v McDonald [2014] FCA 359
Director of the Fair Work Building Inspectorate v CFMEU & Beattie [2013] FCA 981
Director, Fair Work Building Industry Inspectorate v CFMEU & Anor [2013] FCCA 2130
Director of the Fair Work Building Industry Inspectorate v CFMEU [2015] FCA 226
Director of the Fair Work Building Industry Inspectorate v CFMEU (No 2) [2015] FCA 407
Director of the Fair Work Building Inspectorate v Merkx [2015] FCA 316
Veen v R (No 2) (1988) 164 CLR 465

Applicant: DIRECTOR, FAIR WORK BUILDING INDUSTRY INSPECTORATE

First Respondent: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Second Respondent: CHAD BRAGDON

Third Respondent: JADE INGHAM

Fourth Respondent: JOHN CUMMINS

File Number: BRG 318 of 2014

Judgment of: Judge Jarrett

Hearing date: 11 June 2015

Date of Last Submission: 11 June 2015

Delivered at: Brisbane

Delivered on: 8 July 2016

REPRESENTATION

Counsel for the Applicant: Mr Herbert

Solicitors for the Applicant: Norton Rose Fulbright

Counsel for the Respondents: Mr Dowling

Solicitors for the Respondents: Hall Payne Lawyers

ORDERS

THE COURT DECLARES THAT:

1. at or after 6.30 am on 7 April, 2014 the Second Respondent contravened s.417 of the Fair Work Act 2009 (Cth), in that the Second Respondent organised and/or was involved in industrial action by those persons engaged as employees of contractors and subcontractors engaged to perform building work at the Brooklyn on Brookes construction project at Brookes Street, Fortitude Valley, in the State of Queensland (“the Brooklyn Project”), in that the Second Respondent assisted in the convening of the off-site meeting of those employees in working time, and telling those employees to attend at such meeting, at which meeting a decision was taken for those employees to engage in strike action, and thereafter engaged in a verbal protest outside the entrance to the Brooklyn Project on 7 April 2014; and

2. that at or after 6.30 am on 7 April, 2014 the Third Respondent contravened s.417 of the Fair Work Act 2009 (Cth), in that the Third Respondent organised industrial action by those persons engaged as employees of contractors and subcontractors engaged to perform building work at the Brooklyn Project, by convening and attending the meeting of those employees held in working time, at which meeting a decision was taken by those employees to engage in strike action; and

3. that at or after 6.30am on 7 April 2014, the Fourth Respondent contravened s.417 of the Fair Work Act 2009 (Cth), and/or was involved in the contravention of s.417 of the Fair Work Act 2009 (Cth), by those persons engaged as employees of contractors and subcontractors engaged to perform building work at the Brooklyn Project, by attending the off-site meeting of those employees in working time and telling those employees to attend such meeting; and

4. that by operation of s.793 of the Fair Work Act 2009 (Cth) the First Respondent is taken to have contravened s.417 of the Fair Work Act 2009 (Cth)

THE COURT ORDERS THAT:

1. pursuant to s.545 of the Fair Work Act 2009 (Cth), a penalty be imposed upon the First Respondent of $45,000;

2. pursuant to s.545 of the Fair Work Act 2009 (Cth), a penalty be imposed upon the Second Respondent of $3,000;

3. pursuant to s.545 of the Fair Work Act 2009 (Cth), a penalty be imposed upon the Third Respondent of $2,500;

4. pursuant to s.545 of the Fair Work Act 2009 (Cth), a penalty be imposed upon the Fourth Respondent of $2,500;

5. each of the penalties imposed on the Respondents be paid within 28 days to the Consolidated Revenue Fund of the Commonwealth.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 318 of 2014

DIRECTOR, FAIR WORK BUILDING INSPECTORATE

Applicant

And

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

First Respondent

CHAD BRAGDON

Second Respondent

JADE INGHAM

Third Respondent

JOHN CUMMINS

Fourth Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the imposition of pecuniary penalties upon each of the four respondents for organising unprotected industrial action in breach of s.417 of the Fair Work Act 2009 (Cth) at a construction site in Brisbane over a period of six days in April, 2014. There is no dispute that the respondents contravened the Fair Work Act as the applicant alleges.

The facts

1. The Brooklyn Project, at Brookes Street, Fortitude Valley, Brisbane, was a construction project for the completion of a 14-floor residential apartment building.  The development was valued at approximately $105 million.  Hindmarsh Construction Australia Pty Ltd was the head contractor for the Brooklyn Project.  Hindmarsh employed some of its own employees and also engaged subcontractors to assist in providing labour to construct the Brooklyn Project.  About 130 people worked on the Brooklyn Project.  All but one of the subcontractors engaged by Hindmarsh had an enterprise agreement for the purposes of the Fair Work Act with their respective employees that had not passed the nominal expiry date of the agreement.

2. At about 6.00am on 7 April, 2014 Chad Bragdon, Jade Ingham and John Cummins entered the Brooklyn Project site. Mr Bragdon and Mr Ingham were employees, officials, members and organisers of the CFMEU. They held entry permits issued pursuant to s.512 of the Fair Work Act so they could enter the Brooklyn Project site even though they were not employed there. Mr Cummins was a delegate and member of the CFMEU. He was employed by Global HR, a labour hire company, to perform building work on the Brooklyn Project.

3. When they entered the site, Mr Bragdon and Mr Ingham interrupted the regular morning “toolbox” meetings that were taking place amongst the various employees on site.  They each told the employees of Hindmarsh and its subcontractors to attend a meeting with them outside of the Brooklyn Project site.  They each encouraged the employees to leave the Brooklyn Project site to attend the meeting.

4. About half an hour later, Mr Bragdon, together with Mr Ingham convened a meeting away from the Brooklyn Project site at which the various employees who had left the site, and Mr Cummins, attended.  At the conclusion of the meeting, Mr Bragdon participated with others in loud chanting and verbal protests in support of certain industrial action described later in these reasons immediately outside the front entrance to the Brooklyn Project.

5. At the conclusion of the meeting on 7 April, 2014 most of the employees who had attended the meeting refused to perform any more work at the Brooklyn Project that day.  Many did not return to the site.  The employees took the same action on 8, 9, 10, 11 and 12 April, 2014. 

6. As I have indicated above, at the time the employees ceased performing work at the Brooklyn Project, their employment was covered by various enterprise agreements approved by the Fair Work Commission pursuant to the Fair Work Act. The parties agree that the nominal expiry date of each of the relevant enterprise agreements had not passed when the employees took their action. By taking the action that they did, the employees engaged in industrial action as defined in s.19 of the Fair Work Act.

7. The parties agree that the conduct by each of the employees of the various subcontractors on site was not protected industrial action within the meaning of s.408 of the Fair Work Act. Consequently, by:

   a)attending the meeting on 7 April, 2014 off-site and during normal working hours; and

   b)refusing to perform work on 7, 8, 9, 10, 11 and 12 April, 2014

   the employees contravened s.417(1) of the Fair Work Act.

8. The parties agree that:

   a)in the case of Mr Bragdon, by convening, attending and encouraging the employees to attend the meeting on 7 April, 2014 and by him attending the subsequent protest, Mr Bragdon, contravened s.417(1) of the Fair Work Act;

   b)in the case of Mr Ingham, by convening and attending the meeting on 7 April, 2014 he contravened s.417(1) of the Fair Work Act; and

   c)in the case of Mr Cummins by organising and encouraging the employees to attend, and himself attending, the meeting on 7 April, 2014 he contravened s.417(1) of the Fair Work Act.

9. The parties agree that the conduct of Mr Bragdon, Mr Ingham and Mr Cummins must be taken to be the conduct of the CFMEU and that the CFMEU is also liable for their actions.

10. The reason for the industrial action organised by Mr Bragdon, Mr Ingham and Mr Cummins was to attempt to compel Hindmarsh to re-employ, or cause to be reinstated, a delegate of the CFMEU, Mr Zoran Bogdanovic, whose engagement on the Brooklyn Project by Global HR was terminated on 2 April, 2014 at the direction of Hindmarsh.

11. Each of the enterprise agreements that were in place between Hindmarsh’s subcontractors and their employees and between Hindmarsh and its employees contained dispute resolution procedures that could be invoked in the event of a dispute.  No attempt was made by the CFMEU, Mr Bragdon, Mr Ingham or Mr Cummins to invoke any of those procedures.  Nor did they seek any redress in relation to that matter from the Fair Work Commission, prior to or in lieu of, organising the subject industrial action.

12. The parties agree that as a consequence of the industrial action no productive construction work was able to be performed on the Brooklyn Project from commencement of work on 7 April, 2014 to close of business on 12 April, 2014.  The input of approximately 130 employees engaged to perform work on the Brooklyn Project was lost for that period.

13. The industrial action and the consequent delay caused Hindmarsh and its subcontractors to suffer loss.  During the course of these proceedings, Hindmarsh was able to reach an agreement with the CFMEU in relation to compensation, the effect of which was that the CFMEU would pay $20,000 to Hindmarsh in satisfaction of its claims for loss. 

The contraventions

1. The parties agree that there is one contravention of s.417(1) of the Fair Work Act by each of Mr Bragdon, Mr Ingham and Mr Cummins. Section 417(1) of the Fair Work Act is a civil penalty provision (s.539(1) of the Fair Work Act and item 14 of the table set out in that subsection). The Court has power to impose a pecuniary penalty upon a person or organisation that contravenes that provision (s.546(1) of the Fair Work Act).

2. The parties agree that the CFMEU is also taken to have committed the contraventions by its officers. There are three relevant contraventions by the CFMEU – one in respect of each of the other respondents. However, by reason of s.557(1) of the Fair Work Act, the multiple contraventions that the CFMEU are taken to have committed must be treated as a single contravention where the contravention is committed by the same person and the contraventions arose out of a course of conduct by the person. I am satisfied that each of those conditions is met and that I should treat the three contraventions that the CFMEU is taken to have committed as a single contravention.

Consideration of penalty

1. The maximum penalty for each contravention by Mr Bragdon, Mr Ingham and Mr Cummins is 60 penalty units or $10,200.  For the CFMEU it is 300 penalty units or $51,000.

2. The CFMEU plays a prominent role as the principal employee industrial association in the building and construction industry.  It is a seemingly large, national industrial organisation with a significant membership.

3. The contraventions by each respondent were, I accept, a conspicuous public display of civil disobedience.   

4. There is no dispute that Mr Bragdon, Mr Ingham and Mr Cummins each knew that what they were doing was in contravention of the Fair Work Act. Their conduct in organising the relevant meeting, no doubt I infer, with a view to counselling the employees to cease work was plainly calculated and deliberate. Mr Bragdon and Mr Cummins interrupted other workplace meetings to tell workers they should leave the workplace and attend their meeting.

5. The respondents argue that there is no allegation that the conduct of Mr Bragdon, Mr Ingham or Mr Cummins resulted in the industrial action on any day after 7 April, 2014.  But I do not think that is correct.  Paragraph 32 of the Statement of Agreed Facts (referred to earlier) records the agreed fact that:

   As a consequence of the industrial action set out herein, effectively no productive construction work was able to be performed on the Brooklyn Project from the commencement of work on 7 April 2014 to close of business on 12 April 2014, at the least.

6. The phrase “industrial action set out herein” in paragraph 32 of the Statement of Agreed Facts is a reference to all of the industrial action set out in the Statement of Agreed Facts and includes the industrial action organised by Mr Bragdon, Mr Ingham and Mr Cummins on 7 April, 2014.  If it is not explicit, the clear inference form the agreed facts set out in the Statement of Agreed Facts is that the action taken by the employees on 8, 9, 10, 11 and 12 April, 2014 was the result of the meeting organised and attended by Mr Bragdon, Mr Ingham and Mr Cummins.  Their actions resulted in a withdrawal of labour from the site by the relevant employees, both to attend the meeting and following the meeting when work was not resumed.  After the conclusion of the meeting, and the failure to resume work, Mr Bragdon participated with others in loud chanting and verbal protests immediately outside the front entrance to the project site, in support of the industrial action.

7. The action was intended to bring pressure to bear on Hindmarsh to reinstate Mr Bogdanovic irrespective of the actual merits of his termination and without recourse to the dispute resolution procedures under any of the applicable enterprise agreements.  The respondents submit that the action carried out by them was not for any base or arbitrary motive, but I reject that submission.

8. As the applicant submits, the use of industrial force to compel a favourable outcome, without any due legal process, was the first resort of the respondents in circumstances where they knew, or ought to have known that taking that course was unlawful. Moreover, there was no attempt before me to explain the circumstances involving Mr Bogdanovic and his termination which might have, in the respondents’ view, justified them taking the actions they took.  The industrial action organised by them related to the reinstatement of a full-time delegate of the CFMEU.  I accept the applicant’s submission that the respondents’ conduct related far more to the power and influence of the CFMEU than to the welfare of Mr Bogdanovic or the employees who took part in the industrial action.

9. Mr Bragdon has not previously been the subject of proceedings for the contravention of industrial legislation.  However, the Australian Building Construction Employees and Builders’ Labourers’ Federation (Queensland Branch) Union of Employees (as a Transitionally Registered Organisation)  has been penalised in another cases because of conduct which it admitted was undertaken by Mr Bragdon as one of its organisers or officials: Director, Fair Work Building Industry Inspectorate v CFMEU & Anor [2013] FCCA 2130. Mr Bragdon’s conduct in that case was very similar to the conduct in this case.

10. Neither Mr Ingham nor Mr Cummins have been the subject of proceedings for the contravention of industrial legislation before these proceedings.

11. The same cannot be said for the CFMEU which, through its officers, employees and delegates, has a long and sorry history of industrial unlawfulness.  The applicant provided me with a schedule containing no less than 101 cases in which the CFMEU or its officers have been the subject of the imposition of pecuniary penalties for contravening industrial laws in one form or another.  Many of the cases bear resemblance to this case in that they concern organising unlawful industrial action and they reveal that the CFMEU, through its representatives at various levels throughout Australia, has an extensive history of engaging in unlawful conduct that is similar to the kind in this case.  I found Director of the Fair Work Building Inspectorate v Merkx [2015] FCA 316, Brookfield Multiplex Engineering and Infrastructure Pty Ltd v McDonald [2014] FCA 389; Brookfield Multiplex FSH Contractor Pty Ltd v McDonald [2014] FCA 359 and Director of the Fair Work Building Inspectorate v CFMEU & Beattie [2013] FCA 981 the most instructive. Apart from the first of those decisions, each was given before the conduct in the present case took place.

12. Prior relevant conduct, which must necessarily be prior relevant conduct of officials, delegates, employees and the like is relevant.  However, whilst I am mindful that similar prior relevant conduct might be taken into account in assessing penalty, I cannot give it such weight as to lead to the imposition of a penalty that is disproportionate to the gravity of the present contravention under consideration.  Similar prior conduct may demonstrate that a respondent has a history of engaging in the particular conduct in question, that the penalties previously imposed were insufficient to deter that respondent from re­engaging in that conduct and that the respondent has failed to take adequate steps to prevent further contraventions.  Nonetheless, a respondent is not to be punished again for any prior conduct.  It may diminish leniency for good character, or lead to a greater penalty for the purpose of specific deterrence.

13. The extensive history of proceedings relating to similar instances of unlawful industrial action engaged in by the CFMEU and its officials as demonstrated by the authorities must mean, in my view, that each of the respondents would have been acutely aware of the legal consequences of their conduct and should be taken to have accepted the risk of penalties for their conduct.

14. Moreover, the authorities reveal that, insofar as the CFMEU is concerned previous penalties imposed do not appear to have acted as a sufficient disincentive against actions of this nature. 

15. None of the respondents have placed any evidence before me concerning their financial capacity insofar as it is relevant to the assessment of an appropriate penalty upon them.

16. There is no evidence of contrition by any of the respondents in this matter.  Whilst there was agreement reached between these parties as to the way in which the matter was to proceed (including agreement as to the facts of the matter) that agreement was only achieved on the final working day prior to the commencement of the hearing.  No doubt very little was saved by the late concessions of the respondents.  Some hearing time was saved, but the applicant, no doubt, was put to the trouble and expense of preparing for a liability hearing.  The late concessions by the respondents reflect, in my view, not so much contrition for their actions and an acceptance of their wrongdoing, but rather an acceptance of the inevitable outcome of the proceedings.  The defence filed by the CFMEU consisted only of denials or non-admissions.  No positive answer to the case made by the applicant was advanced.  I have taken into account that the matter has proceeded upon an agreed statement of facts, but given the timing of the respondents’ concessions the discount for that matter is slight.

17. There is no evidence of any contrition or remorse on the part of any of the respondents.  This does not go toward an increase in the penalties that might be imposed, but to a possible reduction of penalties if it is found to be present.

1. General deterrence is of considerable importance in this case.  The penalties must be imposed at a meaningful level so as to act as a general deterrent to others who may be minded to engage in similar conduct.  As I put to counsel for the respondents in argument, here Mr Bragdon, Mr Ingham and Mr Cummins were faced with a choice to pursue their objectives using lawful means or unlawful means and they chose the unlawful means.  The penalties must cause Union officials, delegates and employees such as Mr Bragdon, Mr Ingham and Mr Cummins to pause and reflect on the options available to them to pursue their legitimate industrial objectives. 

2. I accept that the circumstances of this case also require that the penalties reflect the need for specific deterrence, particularly in relation to Mr Bragdon and the CFMEU.

3. Insofar as the CFMEU is concerned, my attention was directed to remarks made by Tracey J in a number of cases.  The first was Alfred v CFMEU [2011] FCA 556 at [91]:

   There is also a need for any penalty to have a specific deterrent effect on the CFMEU. It has, as I have already outlined, a deplorable record of contraventions of the BCII Act and similar legislation. The union has not displayed any contrition or remorse for its conduct. The contraventions are significant. Substantial penalties for past misconduct have not served to prevent repetition.

4. The next was a case concerning contempt charges against the CFMEU.  In Director of the Fair Work Building Industry Inspectorate v CFMEU [2015] FCA 226 Tracey J observed at [34]:

   Some, but not all, of these contentions may be accepted. Before dealing with them, however, it is necessary to say something about the unstated assumptions which underpin the CFMEU's actions. It considered that Mr Stavlic had been badly done by and should be reemployed at the site. When potential employers refused its demands the CFMEU could have pursued a number of lawful options with a view to resolving the disputes about Mr Stavlic's employment. This would have required it to justify its complaints about the treatment of Mr Stavlic and to justify its view that re-employment was an appropriate remedy. Rather than do this it sought to impose its will on some of the companies engaged at the site by preventing work from proceeding as normal on 15 April 2014. In doing so it opted for a show of industrial force in preference to engagement in lawful dispute settling procedures. The CFMEU has failed to explain why it chose this course of action despite having undertaken to the Court that it would not so act less than a fortnight before these events occurred. The overwhelming inference is that the CFMEU, not for the first time, decided that its wishes should prevail over the interests of the companies and that this end justified the means.

5. I accept the applicant’s submission that those observations have a resonance with this case.  As do the observations made by Tracey J in Director of the Fair Work Building Industry Inspectorate v CFMEU (No 2) [2015] FCA 407 at [103] - [107]:

   103.  Underlying the various contraventions some consistent themes are apparent. In seeking to achieve its desired outcomes the CFMEU had available to it lawful processes which it could have pursued. It chose, instead, to prosecute its objectives by means which it must have known or, at least, should have known, were unlawful. Not for the first time the CFMEU sought to impose its will by means of threats and coercion against employers. Its approach was one of entitlement: it was free despite legal constraint to deploy its considerable resources in order to achieve its industrial objectives.  The concept of the rule of law was anathema to it.

   104.  The Director submitted that the CFMEU had "an egregious record of repeated and wilful contraventions of the provisions of industrial legislation." This contention was supported by a table, appended to the Director's submissions. The table contained a list of some 87 cases, involving contraventions of industrial legislation by the CFMEU, since 1999.  In most of these cases the CFMEU was found to have sought, by means of threats, coercion or unlawful industrial action, to achieve industrial outcomes. Most of the cases involved multiple contraventions.

   105.  The Director also provided a collection of judicial observations derived from some of these cases in which members of this Court and the Federal Circuit Court (and the Federal Magistrates Court as it was then) had noted the CFMEU's propensity to deliberately flout industrial legislation. The most recent of these observations was that of White J in Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432 at [76] and [77] in which his Honour referred to the CFMEU's record as being "dismal" and indicating "an attitude of indifference ... to compliance with the requirements of the legislation ...".

   106.  The circumstances of these cases were not identical to those in the present case. They, nonetheless , bespeak  a deplorable attitude on the part of the CFMEU, to its legal obligations and the statutory processes  which govern relations between unions and employers in this country.  This ongoing willingness to engage in contravening conduct must weigh heavily when the need for both specific and general deterrence is brought to account.

   107.  The CFMEU is not to be punished again for its earlier misconduct. It is, however, to be punished more severely than it would have been had it had no adverse record or been responsible for only a few isolated incidents over a period of many years.  Its continued willingness to engage in contravening conduct supports the view that earlier penalties, some of them severe, have not had a deterrent effect: cf Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477-8.

6. I put to counsel for the respondents (including the CFMEU) that choosing unlawful means to further its industrial objectives appeared to be the business model of the CFMEU.  There was no demur to that suggestion.

7. The CFMEU has an egregious record of repeated and wilful contraventions of all manner of industrial laws, and I accept that the penalty to be imposed in this case should reflect that record and be more severe than it would have been if it had no or limited adverse record.  It must nonetheless be proportionate to the gravity of the contravention.

Penalties

1. Mr Cummins and Mr Ingham should be dealt with differently, I think, to Mr Bragdon.  Whilst he has not been the subject of proceedings before, Mr Bragdon’s conduct, very similar in nature to that under consideration here, has been the subject of contravention proceedings and the imposition of penalties upon the Union that he represented at that time.  In my view, it is appropriate to impose a lesser penalty upon Mr Ingham and Mr Cummins than that imposed upon Mr Bragdon.

2. For the reasons I have discussed above, the appropriate penalties for Mr Ingham and Mr Cummins are each $2,500.  Their conduct was deliberate, knowingly unlawful and led to a disruption to work on the Brooklyn Project for six days.  It was designed to advance an illegitimate objective. 

3. The penalty for Mr Bragdon should be higher to take into account the matters I have referred to above. The higher penalty should not be seen as an attempt to punish Mr Bragdon for his previous conduct. Rather, I take that into account as indicative of a propensity on Mr Bragdon’s part to conduct himself in a way outside of the Fair Work Act and indicative of a need for the penalty to be imposed upon him to have a particular deterrent effect upon him.

4. The penalty in respect of the CFMEU should, in my view be $45,000.  That penalty is close to the maximum that might be imposed.  It was urged upon me by counsel for the CFMEU that I should not impose the maximum or close to it and that I was constrained by the remarks in Veen v R (No 2) (1988) 164 CLR 465 at 477 – 478. However, I feel no such constraint. While I am conscious that I must be careful not to impose a penalty that effectively again penalises the CFMEU for its past contraventions, it would be wrong to ignore that prior history. Although it might seem that the contravention which the CFMEU is taken to have committed is of no major significance, the gravity of the offence is substantially increased by the prior history of the CFMEU and the moral culpability and propensity for unlawful conduct to achieve its own ends that it so clearly demonstrates. There is plainly a need to impose punishment to deter the CFMEU and others like it from treating this country’s industrial laws as little more than an annoyance. In my view the penalty is a proportionate response to the gravity of the contravention having regard to those matters.

5. I make the orders set out at the commencement of these reasons.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 8 July, 2016.

Date: 8 July, 2016