Fair Work Ombudsman v Lovers of Property Pty Ltd
[2013] FCCA 2269
•26 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v LOVERS OF PROPERTY PTY LTD & ORS | [2013] FCCA 2269 |
| Catchwords: INDUSTRIAL LAW – Penalties – misrepresentation about nature of engagement – underpayment of award entitlements and accrued annual leave – whether respondents established that they were not reckless when making representations – admitted contraventions. |
| Legislation: Fair Work Act 2009, ss.44, 44(1), 45, 357(1), 357(2), 357(2)(b), 550 |
| Banditt v R (2005) 224 CLR 262 CFMEU v Nubrick Pty Ltd (2009) FMCA 981 Fair Work Ombudsman v Metro Northern Enterprises Pty Ltd (2013) FCCA 216 Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383 |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | LOVERS OF PROPERTY PTY LTD |
| Second Respondent: | ICS REAL ESTATE PTY LTD ACN 122 697 652 |
| Third Respondent: | WILLIAM NICHOLAS FRASER |
| Fourth Respondent: | DIANA SYLVIA CARTWRIGHT |
| File Number: | BRG 1137 of 2011 |
| Judgment of: | Judge Jarrett |
| Hearing dates: | 24, 26 June 2013 |
| Date of Last Submission: | 26 June 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 26 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Pratt |
| Solicitors for the Applicant: | Fair Work Ombudsman |
| Counsel for the Respondents: | Ms Garner |
| Solicitors for the Respondents: | Carter Newell Lawyers |
ORDERS
THE COURT DECLARES THAT:
The first respondent contravened ss. 44(1) and 45 of the Fair Work Act 2009.
The third respondent and the fourth respondents were involved in the first respondent’s contraventions of ss. 44(1) and 45 of the Fair Word Act 2009.
THE COURT ORDERS THAT:
The first respondent pay a pecuniary penalty for the contraventions fixed in the sum of $19,800.
The third respondent pay a pecuniary penalty for the first respondent’s contraventions fixed in the sum of $3,960.
The fourth respondent pay a pecuniary penalty for the first respondent’s contraventions fixed in the sum of $3,960.
Of the pecuniary penalties ordered to be paid:
(a)One half of the pecuniary penalties imposed by these orders be paid by the respondents within six (6) weeks of the date of this order;
(b)the balance of the pecuniary penalties imposed by these orders be paid no later than six (6) months from the date of this order;
(c)so much of those sums as is sufficient to acquit an amount which represents 7% simple interest on the figure of $12,340.22 for the period 26 November 2010 to 30 April 2013 be paid to Mr Mart Tehvand; and thereafter
(d)the balance to be paid to the Commonwealth Consolidated Revenue Fund.
The application for the imposition of pecuniary penalties upon the respondents for contravention of s.357(1) of the Fair Work Act 2009 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1137 of 2011
| FAIR WORK OMBUDSMAN |
Applicant
And
| LOVERS OF PROPERTY PTY LTD |
First Respondent
| ICS REAL ESTATE PTY LTD ACN 122 697 652 |
Second Respondent
| WILLIAM NICHOLAS FRASER |
Third Respondent
| DIANA SYLVIA CARTWRIGHT |
Fourth Respondent
REASONS FOR JUDGMENT
Ex Tempore
On Friday 25 June, 2010 an advertisement appeared in the Northern Times newspaper whereby the first respondent advertised for a real estate salesperson. It was an advertisement placed by the third and fourth respondents as agents for the first respondent. The advertisement attracted at least one application that we know about. That application was from a person called Mart Tehvand.
Mr Tehvand sought employment with the first respondent as a real estate salesperson in answer to the advertisement. There was some telephone contact, I accept, between Mr Tehvand and the third respondent, which ultimately led to a meeting between Mr Tehvand, the third respondent, and the fourth respondent at about 3:00pm on the afternoon of 28 June, 2010.
At that meeting there was a discussion which, according to some of the evidence, lasted about 45 minutes, during which the position and what it entailed was discussed. During the course of the discussion it became apparent to Mr Tehvand that he was to be a subcontractor to the first respondent. He says that he was to be a subcontractor on a full-time basis.
The third and fourth respondents each say, both in their written evidence and orally, that Mr Tehvand was told that he would be a subcontractor to the first respondent, and that the arrangements between the first respondent and Mr Tehvand would be sorted out via another company unrelated to the first, third and fourth respondents, ICS Real Estate Pty Ltd, the second respondent in these proceedings.
The third and fourth respondents had become aware of the second respondent earlier in 2010. There is something of a conflict in the evidence about how that came about, but to the extent that it matters, and I don’t think it does, I find that some information technology consultants, with whom the third and fourth respondents were dealing, suggested contact with the second respondent.
The evidence suggests that the second respondent carried on a business establishing and administering a scheme whereby people or companies, who would ordinarily be considered employers, could engage the services of people, who would ordinarily be considered employees, purportedly as independent contractors.
Such an arrangement had perceived benefits for the first respondent in this case: a lesser incidence of taxation, PAYG tax, superannuation payments, payroll taxation payments and the like; less administrative matters to be attended to by the first respondent in respect of its contractors; and, by and large, for the purported principal under the arrangement, a much easier life. Indeed, the slogan that appears on the documents promulgated by the second respondent contains the catchcry, “A life less taxing.” One can see quite clearly, therefore, that from the first respondent’s point of view, and that of the third and fourth respondents, there might have been some attraction in the scheme which the second respondent was promoting. And so, when the first respondent decided to engage a real estate salesperson, and as it turned out, Mr Tehvand in this case, it attempted to avail itself of the second respondent’s scheme.
The second respondent’s scheme is convoluted and, during the course of submissions, I suggested that some greater care might have been taken by Mr Tehvand about his own interests when he was confronted with this particular scheme. It seems to me that those statements and observations made by me are still entirely apposite. But that does not detract from the proposition that the scheme itself was one which was not straightforward and apt to confuse.
By the scheme, Mr Tehvand needed to enter into an agreement with the second respondent whereby he would represent the second respondent for certain purposes and perform certain work on the second respondent’s behalf. There were some agreements which provided Mr Tehvand with an interest in a trust and some other agreements which bound the first respondent to make certain payments to the second respondent which would ultimately, less certain deductions, find their way into Mr Tehvand’s hands for the work that he might perform for the first respondent. All of this, as I say, to avoid the incidence of payroll and other tax obligations that an employer generally has towards its, his or her employees.
So there is no dispute on the material that, as of 28 June and the meeting which occurred on that afternoon, both the third and fourth respondents were of the mind that there would be an arrangement in place, if accepted by Mr Tehvand, which would put him in the position of contractor to the first respondent. Mr Tehvand was of the view that he would be working for the first respondent, although it may be as a “contractor”, whatever that meant.
It does not really matter what Mr Tehvand thought for the purposes of what it is that I have decided in these proceedings, although it was suggested that what he thought had some impact upon what the third and fourth respondents thought, and therefore that might avail them of the ability to make a certain line of argument by way of defence to the application. I will refer shortly to that matter. However, it is sufficient to record that I do not think that argument is sound. I do not think that what Mr Tehvand thought at the relevant time is relevant to what the third and fourth respondents thought at the relevant time.
Documents necessary to implement the second respondent’s scheme were signed by Mr Tehvand and the respondents on 28 June, 5 July and some on 6 July. Precise findings about those matters are not necessary to determine what remains in dispute in this case, but it is generally the chronology of what occurred. Mr Tehvand commenced work on 6 July.
Initially Mr Tehvand had no qualifications or authority to work as a real estate salesperson or agent. Because of that, his duties were varied so that he did not offend the relevant statutes and regulations that govern the carrying on work or business as a real estate salesperson. Over time, however, he achieved those qualifications.
The third and fourth respondents say that before the meeting on 28 June they were concerned about what it was that the second respondent proposed. There were some alarm bells ringing. They needed to be sure that what they were doing, and what the first respondent was doing, was legitimate. It was put to both the third and fourth respondents in cross-examination that they might have had doubts about the legitimacy, or the legality of the arrangements that were being proposed by the second respondent. And both witnesses, fairly and frankly, in my view, conceded that they had such doubts. The third respondent was a little more forthcoming than the fourth respondent, but both conceded the point.
The third and fourth respondents made inquiries with the second respondent on more than one occasion, and a Mr Statham who was in some way associated with the second respondent in particular. They also made inquiries of other people that they knew in the real estate industry, and ultimately formed the view that what they had been told by Mr Statham for the second respondent, and what they had read in the documents – the advertising puff, if you will – from Mr Statham, gave them comfort that the arrangements were legitimate.
I accept that evidence. There is no reason to not accept it. It was not suggested to the witnesses that at all times, for example, they knew that this was an arrangement that was wholly illegitimate. It was not suggested that they did, in fact, know that what they were getting into on behalf of the first respondent was a contract of employment with Mr Tehvand. That was the very thing that they sought to avoid.
Making a misrepresentation about the nature of an employment contract is a breach of the Fair Work Act 2009. Section 357(1) makes that clear. An employer cannot misrepresent to an employee the nature of the contract between them, and in particular cannot suggest that that contract is a contract for services rather than an employment contract, or a contract of service. Penalties apply for breaching the Act in that way.
However, s.357(2) provides a defence. The defence is engaged where the respondent proves that they, or it, did not know that the contract was one of employment, and that belief was arrived at without the respondent being reckless. To use the words of the section, the defence is engaged:
If the employer proves that, when the representation was made, the employer:
(a) did not know; and
(b) was not reckless as to whether;
the contract was a contract of employment rather than a contract for services.
Although the issues between the parties have, for most of the life of these proceedings, been broad in compass, the issue that the parties now present for determination is centred on s.357(2)(b) of the Act. Can the respondents show that they, and the first respondent was not reckless as to whether the contract was a contract of employment rather than a contract of services.
The phrase “not reckless” and the word “reckless” are not defined in the Fair Work Act, and so one needs to determine what that means before one can determine whether the respondents in this case acted in a way which was not affected by recklessness. I was taken to a number of authorities in submissions that dealt with this issue, although, as far as I can see, there is only one other decision of a court which directly bears on the meaning of those words to which I have just referred.
That decision is a decision of Barnes FCJ in Fair Work Ombudsman v Metro Northern Enterprises Pty Ltd (2013) FCCA 216. Her Honour there talks about the discussion that Turner FM (as his Honour then was) engaged in, in a case referred to in submissions as Nubrick – CFMEU v Nubrick Pty Ltd (2009) FMCA 981. That case dealt with s.901(2) of the Workplace Relations Act 1996. As Counsel for the respondents points out, that is in very similar, if not identical, terms to s.357(2), and so what Turner FM had to say in that case has some relevance to this.
But Barnes FCJ has done the work, and the work appears in Metro North. Her Honour there sets out what Turner FM had to say about recklessness. Then her Honour talks about other authorities. One in particular to which her Honour refers is Banditt v R (2005) 224 CLR 262, and the discussion that occurs in that case about the term “reckless.”
Counsel for the applicant referred in particular to paragraph 384 in Metro North where her Honour says this:
However such remarks were made in a context in which recklessness was an element of liability. This is distinct from the present context where an absence of recklessness would establish a defence. Their Honours [their Honours in the High Court of Australia in Banditt] also said at paragraph 36:
It may well be said that “reckless” is an ordinary term and one the meaning of which is not necessarily controlled by particular legal doctrines. However, in its ordinary use, “reckless” may indicate conduct which is negligent or careless, as well as that which is rash or incautious as to consequences; the former has an “objective”, the latter a “subjective”, hue.
Her Honour was there seeking to draw a distinction between the way in which the term “recklessness” has been used in various contexts in various cases. The term “recklessness” is known to the criminal law, as Banditt v R points out. The term “recklessness” is known to the law of tort when one comes to consider, for example, the tort of deceit. And it has various shades of meaning, depending upon the circumstances and context in which it is used.
As her Honour pointed out, ordinarily a court might consider the meaning of the word “reckless” or “recklessness” in the context of the imposition of legal liability, that is, the establishment of recklessness to establish liability. As her Honour further points out, the case here is different. In paragraph 386 of Metro North she says:
Under s.357 of the Fair Work Act recklessness is not a criterion of legal liability. Rather its absence is an element of the defence. The respondent bears the onus of establishing that when the representation was made it was not reckless as to whether the contract was a contract of employment rather than a contract for services. The question of the absence of recklessness is not resolved by considering simply whether the representatives of the respondent were aware at the time they made the representations that there was a risk that there may be ramifications if a person was wrongly categorised.
In the context of a defence to a prohibition on misrepresentation of the nature provided for in s.357(2) of the Fair Work Act, the concept of “not reckless” involves an element relating to the respondent’s state of mind as to whether the contract was a contract of employment rather than a contract for services.
With respect, I agree with and adopt her Honour’s comments. Here the absence of recklessness is a defence. The onus is on the respondents to prove, on the balance of probabilities, the matters which go to make up the defence. In this case, the only issue for determination was the absence or otherwise of recklessness. That is a matter where both the legal and evidential onus is on the respondents.
As an aside, it seems to me, therefore, that the respondents ought to have presented their evidence first, and then the applicant thereafter. As it turns out, that is not what occurred. No prejudice, it seems to me, flowed from that other than to ultimately reverse the order of addresses.
The question then is: does the evidence before me permit of a finding that the respondents were not reckless as to whether the contract with Mr Tehvand was a contract of employment rather than a contract for services?
The applicant points strongly to two matters to argue that the respondents have not discharged the onus upon them. The first is that the very arrangements that were sought to be set up by the documents promulgated by the second respondent could not be achieved in law. The employment by the second respondent of Mr Tehvand could not be achieved, and the employment authority document, referred to in the pleadings and in the affidavits, was ineffectual because he was not legally qualified to do the work of a real estate salesperson. So much is admitted by the respondents. And so the applicant says that seeking to set up an arrangement which everybody must have known could not have been achieved legally demonstrates that there was recklessness or, more to the point, that the respondents were not “not reckless”.
The second matter which attracted significant attention in the applicant’s submissions was the failure by the first respondent and/or third and fourth respondents to seek legal advice about the proposed arrangements with the second respondent and Mr Tehvand. The first respondent carries on business as a real estate agent, or did. The third and fourth respondents were, and are, directors of the first respondent, and were the controlling minds of the first respondent. They accepted – that is, the third and four respondents – in cross-examination that they had regular contact with lawyers, presumably in the sense that they would refer work to lawyers by nominating them in contracts of sale, and there was other regular contact with them. Therefore, it was said, the third and fourth respondents ought to have availed themselves of the ability to contact a lawyer with whom they might have been familiar and seek legal advice about the arrangements that were being put in place.
Counsel for the applicant expressly disavowed the notion that to succeed on a defence under s.357(2) a respondent would have to demonstrate that the offending arrangements that were put in place were the subject of legal advice. Each case needs to be judged on its own facts, and whether legal advice has been taken will always be a relevant consideration but not one which determines the issue. In Metro North, for example, the respondents in that case took legal advice about the relevant arrangements, but still failed to establish the relevant defence.
In this case, I am not satisfied that the absence of legal advice is fatal to the respondents’ attempts to engage the defence. The material that was given to them by the second respondent, whilst perhaps characterised as advertising puffery, was nonetheless on its face convincing. This is an organisation which purports to act for, or be engaged with, to use the words of one of the documents “the big players,” in the real estate industry.
The evidence does reveal that having identified the risks inherent in a miscategorisation of Mr Tehvand’s relationship with them (such as an unexpected liability for certain forms of taxation), the third and fourth respondents, on behalf of the first respondent, set about satisfying themselves that the arrangement was appropriate.
Counsel for the applicant was critical of the third and fourth respondents for taking advice about the legitimacy of the arrangements with Mr Tehvand from the second respondent – the organisation selling the scheme, but that, too, is not determinative of the issue.
What is determinative of the issue is, as Barnes FCJ says in Metro North, the respondents’ state of mind as to whether the contract was a contract of employment rather than a contract for service, and whether that state of mind was affected by them being “not reckless”.
Here I have already made a finding that the third and fourth respondents believed that the arrangement was legitimate. They believed, on my view, that what was being put in place was a lawful and legitimate arrangement whereby they could utilise the services of Mr Tehvand as a contractor, as opposed to as an employee.
I am satisfied, therefore, that they have established that the relevant matters came about without recklessness on their behalf. That is to say, when the oral representations were made to Mr Tehvand at the meeting on 28 June, 2010 and the representations conveyed by the documents that were provided to Mr Tehvand on that day by the third and fourth respondents were made, the first respondent, acting by the third and fourth respondents, did not know and was not reckless as to whether the contract was a contract of employment rather than a contract for service.
Insofar as the application asserts a contravention of s.357(1) of the Fair Work Act it must be dismissed because the first, third and fourth respondents have established the defence provided in s.357(2) of the Fair Work Act.
There are some other contraventions which are admitted by the respondents. Mr Tehvand, unfortunately, spent a considerable period of time, from 5 July, 2010 through to a point in November, 2010 working for nothing. He received $100, according to the evidence.
He was entitled to wages and he was entitled to leave entitlements. He was paid none of that until very recently. The failure by the first respondent to pay those entitlements is admitted by the first, third and fourth respondents and they admit that failure is a contravention of ss.44 and 45 of the Fair Work Act. The third and fourth respondents both admit that they were knowingly concerned in, or involved with, those contraventions for the purposes of s.550 of the Fair Work Act.
Having regard to the admissions and to the submissions made by the parties it is then necessary to determine what penalty, if any, ought to be imposed on the first respondent, and the third and fourth respondents, for those contraventions. The written submissions delivered by the respondents that deal with penalty canvassed the relevant principles, and I do not intend to repeat them.
The contraventions that are relevant are contraventions relating to the underpayment of weekly minimum wage, and underpayments relating to, or non-payment of annual leave when annual leave was taken, and annual leave loading which was applicable, and the non-payment of annual leave entitlements upon the termination of Mr Tehvand’s employment.
The applicant accepts, as the respondents contend, that ultimately there ought to be a grouping which would see three groups of contraventions: one group which deals with the non-payment of wages, one group which deals with the non-payment of annual leave and annual leave loading, and one group which deals with the contraventions of s.357(1) which I have dismissed. It seems, therefore, that there are now only two groups to deal with.
The relevant maximum penalties that might be imposed have been identified in the submissions. The corporate first respondent is liable to a much higher maximum penalty of $33,000 in respect of each of the contraventions, or groups of contraventions, and the personal respondents to a maximum penalty of $6600 each.
There is evidence before me that the business of the first respondent was what might be categorised as a small business. As I apprehend the material, and in particular the two affidavits of the third and fourth respondents filed by leave today, the first respondent, if it conducts a business at all, conducts a business which consists of the administration of a rent roll.
The evidence on that point is somewhat confusing. Neither the third nor the fourth respondent work in the business which might be conducted by the first respondent anymore. Both have other full time occupations, or at least are seeking alternative full time occupations. But nonetheless in the affidavit of Mr Fraser, filed this morning by leave, it is suggested that the first respondent has ongoing monthly expenses which are indicative of it carrying on a business from business premises. For example, he says there are expenses for rent, telephone and office expenses. In any event, the first respondent carries on something of a business but it is not very big. It is not a large employer. But in my view, the size of the employer is irrelevant. Employees of large concerns are entitled to the protections offered to them by the Fair Work Act. Employees of small concerns are equally entitled to the benefits and protections that are offered by the Fair Work Act. It is, at least in my view, simply no answer to a process of fixing a relevant penalty to suggest that a particular employer is small, has a small number of employees, and perhaps might not have access to, as some of the cases describe it, a “human resources department”. Employers are presumed to know the law whether they are big or small, and employers must comply with the law.
In this case, the amount that Mr Tehvand was deprived of for such a long period of time was significant. Over the relevant period of time, the amount suggested by the respondents in their submissions was that the amount that Mr Tehvand was not paid was something in the order of ‑ ‑ ‑
RECORDED : NOT TRANSCRIBED
‑ ‑ ‑ $12,000, a not insignificant sum.
That amount has, as I understand it, been paid to him now, subject to the rider that he is yet to nominate a fund into which his superannuation entitlements might be paid. But the other entitlements have been paid without interest.
The evidence suggests that there has been no similar conduct by either the first, the third or the fourth respondents and that by and large the breaches in this case have come about by the reliance placed by the third and fourth respondents on behalf of the first respondent on the scheme which was promoted to them by the second respondent and Mr Statham. In terms of culpability, it is important, in my view, to recognise that. This is not a case where an employer has taken advantage of a vulnerable employee. I do not consider Mr Tehvand a vulnerable employee in the same way in which many cases speak about vulnerable employees, such as people who are new to the workforce or are new to this country. Mr Tehvand falls into neither of those categories. Whilst I am not suggesting that they are the only categories of vulnerable employee, I am suggesting that I am not satisfied that Mr Tehvand was a vulnerable employee.
This is not a case of deliberate or wilful disregard of the employee’s entitlements. It is a case of an employer attempting to avoid the imposition of expense and inconvenience. The law does not prevent or prohibit that approach, provided it is done correctly. An employer can hardly be criticised for structuring its business in such a way as to reduce the incidence of inconvenience, taxation and expense, provided it does so in ways which fall within the law rather than outside it.
I am satisfied that the first respondent and its directors, the third and fourth respondents, attempted to establish a structure that fitted within the law. They thought, as I have already found, that they were fitting within the law. It turned out they were wrong. Clearly the third and fourth respondents, being the directors of the first respondent, were the governing minds of the first respondent.
There is generally a need for general deterrence. It is important that employers understand that they must understand the law and comply with it. I am not satisfied in this case, however, that specific deterrence has a particularly large role to play in the fixing of the relevant penalties. I am not confronted with respondents who, as I have already indicated, embarked upon a deliberate and conscious attempt to avoid their responsibilities in a knowingly illegal way.
One of the matters that attracted some discussion during the course of argument is whether the respondents, the first respondent and perhaps the third and fourth respondents, are entitled to some form of discount because, ultimately, the contraventions of ss.44 and 45 were admitted. My view is that they are not. There seemed to be a suggestion in the submissions from the applicant that the very fact of the admission of itself ought attract some form of discount.
If that was the submission, then it is not in accordance with the principle because, as was pointed out in Mornington Inn Pty Ltd v Jordan (2008) 168 FCR 383, a case to which the respondents have referred in their written submissions, one needs to take into account when the plea, for want of a better word, was entered. At paragraph 76 of that judgment, the following is said:
As Branson J has pointed out (see Alfred v Walter Construction Group Limited (2005) FCA 497) the rationale for providing a discount for an early plea of guilty in a criminal case does not apply neatly to a case, such as the present, where a civil penalty is sought and the case proceeds on pleadings. Nevertheless, in our view, it should be accepted, for the same reasons given in Cameron’s case, that a discount should not be available simply because a respondent has spared the community the cost of a contested trial. Rather, the benefit of such a discount should be reserved for cases where it can be fairly said that an admission of liability: (a) has indicated an acceptance of wrongdoing and a suitable and credible expression of regret; and/or (b) has indicated a willingness to facilitate the course of justice.
My view is that neither of those things can be said about the admissions in this case. They cannot be said because the admissions have come so late in the proceedings. Even accepting the submission, which was made without evidence, that until early this year the second respondent was conducting and meeting the cost of the defence of these proceedings for the first, third and fourth respondents, the fact seems to be that from the beginning of this year the first, third and fourth respondents have been on their own. They have taken legal advice and it was said, in submission, that there has been some attempt to sort the matter out.
That may well have been so, but ultimately no agreement was reached and the matter has been dealt with by way of an amended pleading which makes admissions. That was done by the delivery, informally, of a third amended defence yesterday, and it was formally filed this morning. In my view such a late admission does not attract any discount.
It will be apparent from those reasons, therefore, that the contraventions in this case have, on the one hand some very serious elements about them. The fact that Mr Tehvand was not paid for such a long period of time is of considerable significance. But there are factors that militate against the seriousness of the contraventions, and I have referred to those.
I am satisfied that the respondents’ assessment of the appropriate range of penalty of 30 per cent of the maximum is appropriate in this case. I am not satisfied that there ought to be any discount. It follows, therefore, that there should be penalties which total 30 per cent of the maximum for the first respondent, and penalties which total 30 per cent of the maximum for the third respondent, and 30 per cent of the maximum for the fourth respondent.
RECORDED : NOT TRANSCRIBED
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 26 June 2013.
Date: 23 December 2013
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