Fraser, Peter v Transport Accident Commission
[1997] FCA 727
•5 AUGUST 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - implied term of confidence and trust in EMPLOYMENT CONTRACT - BREACH OF EMPLOYMENT CONTRACT - VALID REASON - CONDUCT AND PERFORMANCE - SERIOUS MISCONDUCT - employee in private incident shooting person in self-defence - whether conduct outside workplace breached implied term of confidence and trust - whether conduct entitled employer to conclude employee unfit for duties - REMEDY - REINSTATEMENT - COMPENSATION.
Workplace Relations Act 1996 (Cth) ss 170DE 170EA, 170EE
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666
Mahmud v Bank of Credit and Commerce International SA [1997] 3 WLR 95
Ryan v Aboriginal Gallery of Dreamings (unreported, Federal Court of Australia, Murphy JR, 20 June 1997)
Wadey v Y.W.C.A Canberra (unreported, Industrial Relations Court of Australia, Moore J, 12 November 1996)
Hospital Employees Federation of Australia v Western Hospital (1991) 4 VIR 310
Westen v Union Des Assurances De Paris (unreported, Industrial Relations Court of Australia, Madgwick J, 17 December 1996)
Cosco Holdings Pty Ltd v Thu Thi Van Do (unreported, Industrial Relations Court of Australia, Madgwick J, 30 June 1997)
Polkey v A E Dayton Services Ltd [1988] ICR 142
FRASER & CPSU-SPSF GROUP - VIC BRANCH
v TRANSPORT ACCIDENT COMMISSION
VI 1185 of 1997
Before: MURPHY JR
Place: MELBOURNE
Date: 5 AUGUST 1997
IN THE FEDERAL COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1185 of 1997
BETWEEN:
PETER FRASER
and
COMMUNITY AND PUBLIC SECTOR UNION -
SPSF GROUP - VIC BRANCH
Applicants
AND
TRANSPORT ACCIDENT COMMISSION
Respondent
BEFORE: MURPHY JR
PLACE: MELBOURNE
DATE: 5 AUGUST 1997
MINUTES OF ORDERS
ORDER:
The Court declares that the respondent has breached s 170DE(1) of the Act;
The Court orders the respondent pay to the applicant the sum of $20,871.
The respondent may offset against the sum in paragraph 2 hereof any amounts remitted to the Australian Taxation Office on the applicant’s account.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1185 of 1997
BETWEEN:
PETER FRASER
and
COMMUNITY AND PUBLIC SECTOR UNION -
SPSF GROUP - VIC BRANCH
Applicants
AND
TRANSPORT ACCIDENT COMMISSION
Respondent
BEFORE: MURPHY JR
PLACE: MELBOURNE
DATE: 5 AUGUST 1997
REASONS FOR DECISION
The first applicant (“the applicant”) shot and wounded his former tenant. He asserted it was an act of self-defence and was not charged with any criminal offence. The incident did not arise out of his employment. His employment was terminated. The issue in this application under s 170EA of the Workplace Relations Act1996 (Cth) (“the Act”) was whether the respondent had a valid reason to terminate his services. The matter comes before the Federal Court of Australia as a result of the provisions of Schedule 16 of the Workplace Relations and Other Legislation Amendment Act1996 (Cth).
Background.
The respondent administers a statutory scheme for the compensation of road accident victims. The applicant is aged thirty-seven. He has worked as a private detective and was a federal police officer for eighteen months. In October 1989 he commenced employment with the respondent as a field assessor. At relevant times he worked from his home in the Lancefield area. He was supplied with what was described as a home office consisting of a facsimile machine, computer, printer, camera and mobile telephone. He also had the use of a motor vehicle. His duties involved interviewing accident victims and witnesses, and investigating accident scenes. He would complete reports upon the request of claims officers of the respondent. At all relevant times he was required to complete a detailed diary of his daily movements. He was also required to telephone the Melbourne office each morning to advise it of his movements for the day.
The applicant’s problems with a tenant.
The applicant lives in a rural area and has a farm. He also owned a small block on which there was a residence. In June 1996 he rented out this residence to Ms Elizabeth Osborne. She lived there with her boyfriend Mr Beau Broadway and a number of children. As is common, the applicant retained some use of the property for farming purposes. This included access to a machinery shed and to two paddocks nearby. The tenants proved difficult. Ms Osborne would not pay the rent and denied the applicant access by padlocking a gate. On 17 July the applicant attempted to access the property to tend stock. He did so but as he left he was advised by Mr Broadway that henceforth twenty-four hours notice would be required. On 20 July an incident occurred during a confrontation over a locked gate. Mr Broadway “shirtfronted” the applicant. The matter was reported to the police. Mr Broadway was known to the local police.
On 21 July the applicant attended the property with a local police officer. Ms Osborne allowed access to the paddocks and advised the applicant that she would make a key available. On 24 July the applicant attended the property to check a cow. While doing so he noticed Mr Broadway near his vehicle. When he checked the vehicle he found nails set under the tyres. He reported the matter to the police and a statement was prepared and signed on 27 July.
Soon after this the applicant decided to evict Ms Osborne. He obtained the relevant order from the Residential Tenancies Tribunal and the order was executed by the local police on the morning of Wednesday 14 August 1996. The applicant was not present at that time. Later that morning he checked the premises and found that the tenants had left various items of property near the front gate that they were to collect later.
In the afternoon the applicant decided to go down to the property to tend his stock and to see if the tenants’ property had gone. Fearing that the tenants may return while he was at the scene he decided to take his rifle with him for protection “in case of a violent confrontation”. He gave evidence that his wife had declined to accompany him. He also formed the view that he had used up the goodwill of his neighbours and none would be able to assist.
The incident.
The applicant, who holds the relevant licences and said he had military training, drove towards the property. As he approached the property he noticed that the tenants were loading items into a horsefloat. He identified the vehicle as that owned by Mr Broadway. The applicant pulled off the road and reversed into a driveway to wait for them to leave. As the tenants passed the applicant’s car they observed it in the driveway and came to a stop. The applicant’s police statement (Exhibit R5) continues:
“As they were finishing loading and were preparing to drive off in my direction, I removed the rifle from it’s [sic] carry bag, inserted the magazine, cocked the rifle and removed the safety. I then placed it back on the front seat and remained seated in my vehicle. I did this to ready myself in case there was conflict with Beau Broadway. I realised the seriousness of using a firearm but it was going to be a last resort to prevent serious injury to myself if the situation arose. As they drove past me, Beau was driving, the vehicle suddenly skidded to a stop with the rear of the horse float in front of my vehicle. I saw Beau then jump out of his vehicle and run to the rear of his car and I think he humped [sic] over the hitch between his car and float. He was then moving quickly towards [sic], he appeared enraged and very threatening towards me. At the same [sic] I got out of my car, at the same time pulling the rifle out with me. I stepped away from the doorway of my vehicle and held the rifle in both hands across my body.
Beau then said something like, “You’ll .......”. I didn’t hear the rest and at this stage I said, “Stop. Don’t come any closer or I will shoot.” Beau continued to run towards me and I was in fear that serious injury could be inflicted against me if Beau got hold of me and got the rifle from me. Beau Broadway is a very powerfully built person and I was aware of his body building interest. He is about 6’1” and of solid build very strong. I had experienced his rage and unstable type behaviour before. He continued to run at me and was about 4 meters [sic] from me, I raised the rifle, aimed at his legs and pulled the trigger. The rifle discharged but he continued to rush at me. He said, “You bastard.” He continued to rush at me, then stopped and bent down to feel his leg. I cannot recall which leg he felt. I said, “Get back or I’ll shoot again.
At this stage [Ms Osborne] was out of their car and she yelled at Beau to get back and call the Police. I said, “Yes, call the Police”. I stayed out of my car and watch [sic] Beau hobble back to his car....”
After the incident the applicant attended at the Romsey Police Station and participated in a taped record of interview.
The following morning the applicant contacted his supervisor, Mr Graves, and told him what had happened. Mr Graves passed the information on to Mr Andy Johnston, the Divisional Manager, Claims Operational Support. Mr Johnston regarded the matter as serious. He despatched Mr Graves and another employee to Lancefield to retrieve the applicant’s office equipment and vehicle. The applicant was told not to attend work the next day, Friday 16 August.
Opportunity to respond and termination.
On Saturday 17 August Mr Graves sought to arrange a meeting between the applicant and Mr Johnston for Monday 19 August. The applicant agreed to attend the meeting but requested the attendance of a union representative. On Monday 19 August the applicant rang the union representative Ms O’Sullivan and said that he would prefer to stay at home to look after his wife. Ms O’Sullivan spoke to Mr Johnston.
That afternoon the applicant had a telephone conversation with Mr Johnston. He advised Mr Johnston that the police were still investigating the matter. The applicant further told Mr Johnston that the police were sympathetic to him and had visited his property to check on his safety. They were thinking of charging Mr Broadway with an assault on the applicant so as to impose bail conditions. Mr Johnston asked the applicant if he had any further material to put in relation to the incident. The applicant referred to his police statement. Mr Johnston advised that the respondent would be in further contact.
The reason for termination.
Mr Johnston then decided to terminate the applicant. The termination letter (Exhibit R8) reads:
“........ .I confirm that you contacted me at approximately 2.30 pm on Monday 19 August 1996 and told me that you did not want to come in and discuss the matter any further but simply wanted TAC to determine what action it would take on the basis of the documentary material you have already provided. As I explained, TAC considers this incident to be very serious. Given the fact that you work in an unsupervised capacity, that you are required to deal with members of the public on TAC’s behalf, and that your work may from time to time put you in a situation with a claimant which may become hostile, it is of significant concern that you have been involved in a shooting incident of this nature and arising in these circumstances. I also confirm that I told you that given the serious nature of the incident, in determining what action to take, TAC has to consider its options. You have been previously advised that a possible outcome was that your employment with the TAC may be terminated........ ”
The respondent’s reason for the applicant’s termination was elaborated in evidence by Mr Johnston. He said that field assessors required good judgment. They have to deal with members of the public on a daily basis in potentially volatile situations. His conclusion as to why he formed the view that the applicant should be terminated is encapsulated in this evidence:
“.....the behaviour is, well it is abnormal in regards to the shooting incident but certainly it reflected to me a level of volatility that was inappropriate for the position.....
Succinctly because it is behaviour totally inconsistent with the expectations I would have for a member that deals as part of their job with the public. It shows a propensity to violence which I believe, is a high risk category......
I am referring to firstly the fact that he has gone armed in what could be regarded as a potentially provocative situation - volatile situation. And secondly based on the facts that I had in front of me that he then for reasons that he regarded as appropriate I am sure actually shot the person in question. They were the facts as I understood them.”
In a later answer he said that the “behaviour would put him in the high risk category as far as I’m concerned given the very nature of the role that he has to discharge”.
Mr Johnston reached this conclusion on the police statements that were before him and his telephone discussion with the applicant. Based on the nature of the applicant’s job and this “one off incident” it was too big a risk to continue the applicant’s employment. The respondent formed the view that the applicant was not fit to discharge the duties as a field assessor. It reached this conclusion based on the incident with Mr Broadway and not on any previous behaviour of the applicant whilst employed by the respondent.
Did the respondent have a valid reason to dismiss the applicant?
The respondent carries the onus of proof that it had a valid reason to terminate the applicant’s employment. In Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373 Northrop J said:
“In its context in subsection 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of section 170DC.”
Valid reason as a breach of confidence and trust.
The issue for the Court is whether the respondent, in relying on the applicant’s conduct in the incident to found its valid reason for termination, has discharged its onus of proof. The respondent, in effect, concluded that the applicant had breached the implied obligation of mutual trust and confidence that is implied as an incident of all contracts of employment. The obligation is that an “employe[e] will not, without reasonable and proper cause, conduct [himself or herself] in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”; see Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666 at 670 per Browne-Wilkinson J. The term so formulated has recently been approved in the House of Lords: Mahmud v Bank of Credit and Commerce International SA (1997) 3 WLR 95. It has extensive Australasian support: see the authorities collected in Ryan v Aboriginal Gallery of Dreamings (unreported, Federal Court of Australia, Murphy JR, 20 June 1997).
The term as formulated comfortably encompasses the proper approach to how conduct, criminal or otherwise, outside the workplace is to be considered as impacting on the employment relationship. The requirement of whether the conduct has a relevant connection with the employment relationship, as considered in cases such as Hospital Employees Federation of Australia v Western Hospital (1991) 4 VIR 310, can now formulated as whether or not the conduct amounts to a breach of the implied term of confidence and trust.
In Mahmud (above) at 109-110 Lord Steyn said:
“....It is true that the implied term adds little to the employee’s implied obligations to serve his employer loyally and not to act contrary to his employer’s interests. The major importance of the implied duty of trust and confidence lies in its impact on the obligations of the employer: Douglas Brodie, “Recent cases, Commentary, The Heart of the Matter: Mutual Trust and Confidence” (1996) 25 I.L.J. 121. And the implied obligation as formulated is apt to cover the great diversity of situations in which a balance has to be struck between an employer’s interest in managing his business as he sees fit and the employee’s interest in not being unfairly and improperly exploited.”
In approaching the question of a breach of that obligation Lord Steyn endorsed this academic comment:
“In assessing whether there has been a breach, it seems clear that what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Moreover, the impact will be assessed objectively.”
Those comments must also apply to the converse situation where the employee is allegedly in breach of the implied term. The employee’s actions must, judged objectively, destroy or damage the relationship of confidence and trust.
Was the applicant’s conduct likely to destroy or damage the relationship?
The applicant’s contemporaneous account of what happened is extracted above. As this is what was before the respondent, it is appropriate to focus on this rather than the more elaborate account given in evidence. The only immediate connection between the acts and the applicant’s employment was that the incident took place during working hours. Strictly the applicant should have contacted his supervisor and sought permission to absent himself from duty for the period that he was checking his property. The respondent, while pointing to this as an exacerbating factor, did not place significant reliance on this aspect.
There were, on Mr Johnston’s evidence, two aspects of the applicant’s conduct that were of concern. First he took a firearm into a potentially volatile situation. Second, he not only discharged the firearm but shot an unarmed civilian. The whole incident showed that the applicant was unfit for duties. He was volatile, a high risk, and thus the respondent could no longer trust him as its employee.
The two steps in the chain of events bear some individual examination in the context of the respondent’s overall conclusion. When they are individually considered, I am unable to accept that the respondent could reasonably reach the conclusion that it did.
The applicant had the relevant firearms licence. He said in his police statement that he had experienced Mr Broadway’s behaviour before. He committed no offence in taking the rifle in the vehicle with him. It is easy, in retrospect, to characterise his action as an error of judgment. Given his previous good record with the respondent, this “error of judgment”, if it is to be regarded as such, was, however, out of character. Furthermore, the history of the applicant’s relations with Mr Broadway must be considered when transferring this error of judgment in a private or domestic affair to a conclusion that, in his future duties as a field assessor, the applicant was high risk. The taking of the firearm was a precaution that could be seen as not unreasonable from the applicant’s viewpoint. He had persevered with Mr Broadway. He had called the police on two occasions. Mr Broadway had exhibited aggressive behaviour previously. The applicant’s wife had expressed concerns for his welfare “because of our past experiences and my knowledge of his propensity to violence”. The applicant had been a police officer and had military training. The applicant had a legitimate purpose in attending the property - it was his property and his stock needed tending. It can hardly be said to be provocative when there was no certainty, from the applicant’s viewpoint, that Mr Broadway would be there.
The applicant’s dealings with Mr Broadway, when considered in this light, are a long way from his daily duties with a potentially volatile witness or accident victim. If the applicant knew of this potential he could exercise a choice by abandoning the interview. On his own property the applicant was engaging in a different task that could not, in that sense, be abandoned or deferred. The applicant was making contingency plans for an event that may or may not have occurred, and which, on the material in his police statement, he had reason to plan for.
When the matter is considered in this way the link between this aspect of the applicant’s actions and his future employment activities was tenuous at its highest. It did not show that the applicant was volatile, or prone to violence. It was neutral on those matters. It was also of little probative weight in reaching a conclusion that the applicant was so lacking in judgment that he was unfit for the duties of a position he had held for the previous seven years and for which he had received at least one performance bonus (Exhibit A2).
The second phase of the overall incident is the shooting. In cross-examination Mr Johnston said that from the applicant’s police statement, “which I took to be an accurate reflection of [the applicant’s] position ........ I interpreted [it] to be an aggressive act.”
The applicant’s police statement records that he believed he was acting in self-defence when he shot Mr Broadway in the leg. He said that he discharged the rifle when Mr Broadway was moving quickly towards him. He “appeared enraged and very threatening”, and had refused to stop. The applicant maintained that he discharged the firearm in self-defence. He confirmed this to Mr Johnston, who in turn conveyed this to his superior Mr Brown (Exhibit R7). He was not charged with a criminal offence.
In the criminal law the test of self-defence is whether “the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did.”: Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 661 per Wilson, Dawson and Toohey JJ.
Counsel for the respondent submitted that the defence of self-defence was not made out. The applicant should have driven away when he saw the Mr Broadway’s vehicle. He should have reversed his vehicle through a gate or remained in it with the doors and windows locked. The shooting was disproportionate. It was open to the respondent to conclude that self-defence was not open on this occasion. It was submitted that the respondent was entitled to take a serious view of the shooting of an unarmed citizen.
While there is merit in the respondent’s submissions I am unable to accept they lead to the conclusion that it actually drew. On one view, when the applicant’s predicament as Mr Broadway approached is considered, what he did was reasonable and met the common law requirements of self-defence. If that is rejected, could what the applicant did entitle Mr Johnston to conclude that he was volatile, had a propensity for violence, and was a high risk to clients of the respondent? To reach that conclusion was unreasonable. It was unreasonable unless there was other material on which Mr Johnston could rely. This could have been a prior history of this type of behaviour, or a reputation for a lack of credibility within the respondent. That material did not exist. Mr Johnston could not conclude, on what was an agony of the moment act, that the applicant was so lacking in good judgment as to be unfit for future duties. He could not reasonably conclude that the applicant was aggressive, volatile, prone to high risk behaviour or had a propensity to violence. There was just no factual material on which to do so.
The applicant’s difficulties with Mr Broadway were a private or domestic matter. They had no connection with the applicant’s fitness to work for the respondent. On the police statements before Mr Johnston, Mr Broadway and not the applicant had evidenced a violent disposition. The material before Mr Johnston was inconsistent with the applicant being seen as “aggressive”, “volatile” and “high risk”. That conclusion could not be reasonably reached on a fair reading of the police statements and what Mr Johnston was told by the applicant. The conclusion was shared by the police, and cuts the ground from the respondent’s claim that the applicant could not be trusted or was unfit to be a field assessor. The applicant had not breached the implied term of confidence and trust.
Was the decision one of unreviewable managerial prerogative?
In Wadey v Y.W.C.A Canberra (unreported, Industrial Relations Court of Australia, Moore J, 12 November 1996) Moore J said:
“It is not for this Court to approach the matter as if it is to make a decision whether termination should occur or not. A range of rational and reasonable views may exist as to whether particular conduct warrants termination. If the view adopted by, or on behalf of, the employer is rational and reasonable then, in my opinion, the employer has established a valid reason for the purposes of s 170DE(1). In putting it this way I am not attempting to depart from the views expressed by Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373 which have been referred to, with approval, on a number of occasions since. Lehmann was entitled to view Wadey's conduct with the gravity she did. Her decision to terminate was for a valid reason.”
An employer’s decision to terminate employment that is within “a range of rational and reasonable views” of particular conduct arguably refers to a band of unreviewable managerial prerogative that has been the subject of relatively little discussion in the application of the Act: cf Westen v Union Des Assurances De Paris (unreported, Industrial Relations Court of Australia, Madgwick J, 17 December 1996); Cosco Holdings Pty Ltd v Thu Thi Van Do (unreported, Industrial Relations Court of Australia, Madgwick J, 30 June 1997). It is well recognised in the United Kingdom scheme: see Polkey v A E Dayton Services Ltd [1988] ICR 142. The exercise of this managerial prerogative, in the context of the implied term of trust and confidence, still requires that the conduct, considered objectively, damage the employer’s confidence and trust in the employee. Here, for the reasons set out above, I am unable to accept that the applicant’s conduct could objectively be said to impact on the respondent’s confidence and trust in his ability to be a field assessor.
The respondent’s conclusion was one that was not within “a range of rational and reasonable views” open as a response to the conduct as presented to the respondent. There was no breach of the implied term of confidence and trust. In these circumstances termination of his employment could not be justified: there was no valid reason for the termination of the applicant’s employment. The respondent has breached s 170DE(1) of the Act and I so declare. Having reached this conclusion it is unnecessary to consider the alternative contention that the applicant had been denied an opportunity to respond: Selvachandran (above) at 373.
Remedy.
The applicant sought reinstatement to his position. The respondent asserted that this was impracticable. Mr Graves gave evidence that in June 1997 the remaining field assessors had all been retrenched and the services previously provided by them assigned to contractors. His evidence was that there was thus no position available for the applicant. He did concede that the respondent still employed people whose duties involved income assessment of claimants.
The respondent carries an evidentiary onus of proof on the issue of reinstatement. I am satisfied that reinstatement is not appropriate in this matter. The group of employees of which the applicant was a member has, in what was one of a number of internal restructures, been the subject of contracting out. Applying a commonsense approach it is inappropriate that the respondent be ordered to reinstate the applicant in those circumstances.
In the alternative the applicant sought compensation under s170EE(2). There are no discretionary reasons raised why an order for compensation is not appropriate in the circumstances. The applicant was on an annual salary of $41,742 (Exhibit A1). The limit of compensation under s 170EE(3) is thus $20,871.
Had the applicant not been unlawfully terminated I am more than satisfied that he would have remained employed until he, along with the other field assessors, was retrenched in June 1997. It is likely that he would have received an appropriate redundancy payment at that time and had the opportunity to be considered as a contractor with the respondent. The respondent should now do this in any event given my conclusions earlier in this judgment.
The applicant has made attempts to mitigate his losses by obtaining work. His earnings were somewhat vague. He has earned $1,500 labouring. In February he commenced earning $500 per week driving his own truck and earned a total of $8,000 until mid June 1997. His total earnings until mid June were thus $9,500.
The applicant was earning $3,478 per month with the respondent. In the ten months between August 1996 and June 1997 he would have earned $34,780. Taking into account his earnings, his total remuneration losses to June 1997 thus significantly exceed the statutory cap under s 170EE(3). In these circumstances the appropriate amount of compensation for the respondent’s unlawful termination of the applicant’s employment is six months remuneration, a total of $20,871.
ORDER:
The Court declares that the respondent has breached s 170DE(1) of the Act;
The Court orders the respondent pay to the applicant the sum of $20,871.
The respondent may offset against the sum in paragraph 2 hereof any amounts remitted to the Australian Taxation Office on the applicant’s account.
I certify that this and the preceding eleven (11) pages are a true copy of the reasons for decision of Judicial Registrar Murphy.
Associate: KAREN HALSE
Dated: 5 AUGUST 1997
APPEARANCES
Counsel for the applicants: MS M YOUNG Solicitors for applicants: GILL KANE & BROPHY Counsel for the respondent: MR C O'GRADY Solicitors for respondent: MINTER ELLISON Date of Hearing: 19 & 20 JUNE 1997 Date of Judgment: 5 AUGUST 1997
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