George Bechara v Ashford Homes Pty Ltd T/A Ashford Homes

[2017] FWC 3528

[2017] FWC 3528

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

George Bechara
v
Ashford Homes Pty Ltd T/A Ashford Homes
(U2015/13525)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 4 JULY 2017

Application for relief from unfair dismissal - remedy.

[1] I issued a decision 1 in which I found that the termination of Mr George Bechara (Applicant) by the Respondent, Ashford Homes Pty Ltd t/a Ashford Homes (Ashford Homes), was harsh, unjust or unreasonable. I was unable to come to a concluded view, based on the materials that were before me, on an appropriate remedy. I advised the parties that directions would be issued following my decision with respect to the filing of submissions addressing remedy.

[2] Directions were issued and the parties each filed written submissions addressing remedy. In the directions the parties were notified that I intended to determine the issue of remedy on the papers, however if either party sought a hearing they were to advise my chambers by the date set down. Neither party made a request to be heard.

[3] After receiving the written submissions on remedy Mr Bechara contacted my chambers to advise Ashford Homes had recently become bankrupt. On 20 October 2016, I requested an ASIC Company Search for ‘Ashford Homes Pty Ltd’ to be undertaken. The Company Summary report showed Ashford Homes’ status was under ‘External Administration’.

[4] The Commission performed a check on the ASIC liquidation notices database which confirmed that on 17 October 2016, at a general meeting of the members of the company, a resolution was passed for the company to be wound up voluntarily.

[5] In addition to their earlier submissions I asked the parties to provide submissions addressing what orders, if any, I could make regarding remedy given that Ashford Homes had entered into administration. The Applicant filed submissions in accordance with the directions on 8 June 2017, however no submissions were received from the Respondent.

The Power of the Commission to Make an Order

[6] The Corporations Act 2001 sets out various restrictions to proceedings regarding companies in administration. The relevant sections of that Act provide as follows:

“440D Stay of proceedings

(1) During the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except:

(a) with the administrator’s written consent; or

(b) with the leave of the Court and in accordance with such terms (if any) as the Court imposes

(2) Subsection (1) does not apply to:

(a) a criminal proceeding; or

(b) a prescribed proceeding.

…

471B Stay of proceedings and suspension of enforcement process

While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:

(a) a proceeding in a court against the company or in relation to property of the company; or

(b) enforcement process in relation to such property;

except with the leave of the Court and in accordance with such terms (if any) as the Court imposes.

…

500 Execution and civil proceedings

(1) Any attachment, sequestration, distress or execution put in force against the property of the company after the passing of the resolution for voluntary winding up is void.

(2) After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.

       (3) The Court may require any contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer forthwith or within such time as the Court directs to the liquidator any money, property of the company or books in his, her or its hands to which the company is prima facie entitled.”

[7] Mr Bechara submitted that the Commission has already decided that his termination was harsh, unjust and unreasonable as set out in my Decision. 2

[8] He submitted that the application of damages or compensation arising from a previously properly conducted application resulting in such damages or compensation is not one that should be subject to the prohibition arising from section 440D of the Corporations Act. 3

[9] In relation to questions arising from the application of section 471B, Mr Bechara submitted that those matters were considered by the Federal Court in Swaby v Lift Capital Partners Pty Ltd 4:

“22. Accordingly, s 471B of the Corporations Act prohibits a person beginning or continuing a proceeding against a company in liquidation except with the leave of the Court. The provision ensures that a company in liquidation does not face a multiplicity of legal proceedings that are expensive, time consuming, and potentially unnecessary: Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd (Receivers and Managers Appointed) (in liq) [2009] FCA 42 at [17] to [19].

23. Section 471B of the Corporations Act itself is silent as to the principles pursuant to which leave to proceed will be granted: King v Yurisich [2006] FCA 1369 at [13]. The court’s discretion is broad but not absolute, and must be exercised fairly. It can only be exercised if a serious question is shown: King v Yurisch (2006) 59 ACSR 598 at [9]–[15]; Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 at 556. The test which is akin to that of whether there is a “serious question to be tried” as applied in interlocutory injunctions: Vagrand at 556. The authorities have not established an exhaustive list of the circumstances in which it may be appropriate for the Court to grant leave to proceed: Re Gordon Grant and Grant Pty Ltd [1983] 2 Qd R 314 at 317G per McPherson J (with whom the Court agreed).

24. As was stated by McPherson J in Re Gordon Grant and Grant Pty Ltd (and as was approved by the Full Federal Court in Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 at 555):

The question whether a claimant should be permitted to proceed by action, or should be required to submit his proof of debt and, if dissatisfied, appeal to a judge, is therefore reduced largely to one of choosing between alternative forms of procedure: at 317E.”

[10] Although it is a matter for the Courts to determine, Mr Bechara submitted that there could be no doubt that the issue of whether he has a serious question to be tried must be answered in the affirmative and that he therefore has a prima facie entitlement to recover the compensation or damages that arise as a result of the properly determined decision of the Commission. 5

[11] Mr Bechara submitted that his circumstances are the same as those described above, and noted that the Federal Court found:

“33. In some cases, leave should be granted under s 471B because the litigation is a necessary prerequisite to the claimant being able to submit a proof of debt at all: for example, because the primary claim is one for apportionment. The proposed cross-claim is, I accept, not a claim of this type, but rather in effect, a claim for contribution. This is capable of being dealt with by proof of debt: Tyrrell v Tyrrells Building Consultancy Pty Ltd (2008) 66 ACSR 134 at 141.” 6

[12] Therefore, Mr Bechara submitted that section 471B does not represent a bar to the Commission exercising its jurisdiction to order a remedy in relation to this case, and that instead the ordering of a remedy is the logical conclusion of the proceedings. 7

[13] He submitted that the questions raised by section 500 are similar if not the same as those dealt with in the submissions relating to section 471B. 8

[14] He submitted that the principles involved were discussed in La Trobe Wholesale Finance Pty Ltd v KCRAM Pty Ltd (in liq) formerly known as PRP Valuers and Consultants Gold Coast Pty Ltd (No 1) 9in which the Federal Court stated:

“18 Section 500 applies in relation to a company subject to a creditors’ voluntary winding up.

19 In Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd (Recs and Mgrs Apptd) (in LIQ) (No 2) [2009] FCA 42, Jacobson J referred to the Full Court’s discussion of relevant authorities in Vagrand Pty Limited (in liq) v Fielding (1993) 41 FCR 550. His Honour stated at [18] to [21]:

[18] The authorities contain two possible explanations of the objective of the predecessor of s 500(2) of the Corporations Act. The first is that the prohibition on proceeding without the grant of leave is intended to effect the statutory policy of ensuring that the assets are distributed rateably amongst all creditors so that no creditor will obtain an advantage over another. It is important to note that in making this statement in Re Sydney Formworks at 650, McLelland CJ in Eq pointed to the objective of enabling the Court:

… effectively to supervise all claims brought against the company which is being wound up.

[19] The second explanation is that without the restriction contained in the subsection, a company in liq would be subject to a multiplicity of actions which would be expensive, time-consuming, and in some cases unnecessary.

[20] As McPherson J observed in Ogilvie-Grant at 672, the question of whether leave ought to be granted is reduced to one of choosing between two alternative forms of procedure, namely filing a proof of debt or commencement of legal proceedings. His Honour said that the effect of the subsection is that the claimant is required to lodge a proof of debt unless he or she can demonstrate that there is a good reason for departure from that procedure.

[21] McPherson J also said at 672:

It is quite impossible to state in an exhaustive manner all the circumstances in which leave to proceed may be appropriate but ... they … include factors such as the amount and seriousness of the claim, the degree of complexity of the legal and factual issues involved, and the stage to which the proceedings, if already commenced, may have progressed.

…

21 In Viscariello v Bernsteen Pty Ltd (in liq) (2004) 235 LSJS 277; [2004] SASC 266 at [21], Besanko J stated, in relation to s 500(2) of the Act:

Before considering the reasons of the Master and of the Judge, it is convenient to outline the principles which govern the exercise of the discretion under s 500(2) of the CA. In Ogilvie-Grant v East (1983) 7 ACLR 669, McPherson J (with whom Campbell CJ and Sheahan J agreed) discussed the principles relevant to the exercise of the discretion under an earlier analogue of s 500(2). I respectfully agree with his Honour’s analysis which in my opinion applies with equal force to s 500(2). The question is whether a claimant should be permitted to proceed by action or should be required to submit his proof of debt and, if dissatisfied, appeal to a judge. The question is one of choosing between alternative forms of procedure. The effect of s 500(2) is to require the claimant to adopt the course of lodging a proof of debt unless he can demonstrate that there is some good reason why a departure from that procedure is justified in the case of the particular claim in dispute. It is impossible to state exhaustively all the circumstances in which it may be appropriate to grant leave to proceed. Relevant factors are the amount and seriousness of the claim, the degree of complexity of the legal and factual issues involved, and, if proceedings have already been commenced, the stage to which those proceedings may have progressed. The fact that the company is insolvent and will not be able to satisfy a judgment is a factor against the grant of leave (Haviland v Joslow (No 4) Pty Ltd [1979] 2 NSWLR 318) because the Court will not give its imprimatur to fruitless proceedings. Nor will leave be granted if the claimant does not have a genuine claim. On the other hand, the fact that the claimant has an arguable claim for proprietary relief against the assets of the company is a factor in favour of a grant of leave (Robins Haigh McNeill Pty Ltd v Nichols-Cumming Advertising Australia Pty Ltd (in liq) [2001] VSC 427).”

“22. Accordingly, s 471B of the Corporations Act prohibits a person beginning or continuing a proceeding against a company in liquidation except with the leave of the Court. The provision ensures that a company in liquidation does not face a multiplicity of legal proceedings that are expensive, time consuming, and potentially unnecessary: Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd (Receivers and Managers Appointed) (in liq) [2009] FCA 42 at [17] to [19].

23. Section 471B of the Corporations Act itself is silent as to the principles pursuant to which leave to proceed will be granted: King v Yurisich [2006] FCA 1369 at [13]. The court’s discretion is broad but not absolute, and must be exercised fairly. It can only be exercised if a serious question is shown: King v Yurisch (2006) 59 ACSR 598 at [9]–[15]; Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 at 556. The test which is akin to that of whether there is a “serious question to be tried” as applied in interlocutory injunctions: Vagrand at 556. The authorities have not established an exhaustive list of the circumstances in which it may be appropriate for the Court to grant leave to proceed: Re Gordon Grant and Grant Pty Ltd [1983] 2 Qd R 314 at 317G per McPherson J (with whom the Court agreed).

24. As was stated by McPherson J in Re Gordon Grant and Grant Pty Ltd (and as was approved by the Full Federal Court in Vagrand Pty Ltd (in liq) v Fielding (1993) 41 FCR 550 at 555):

The question whether a claimant should be permitted to proceed by action, or should be required to submit his proof of debt and, if dissatisfied, appeal to a judge, is therefore reduced largely to one of choosing between alternative forms of procedure: at 317E.”

[15] Mr Bechara repeated his submission at [10] above 10 and submitted it was self-evident that he would be unable to present a proof of debt without the Commission continuing to issue an order in relation to remedy.11

[16] He submitted that the authorities in relation to the abovementioned sections of the Corporations Act 2001 strongly suggest that those sections are not a bar to the Commission issuing an order. 12

Consideration

[17] Mr Bechara’s submissions largely dealt with the circumstances in which the Courts have authority and when it is appropriate for them to grant leave for an Applicant to commence or proceed with civil proceedings in circumstances where the respondent in the matter is insolvent.

[18] Mr Bechara’s submissions went some way to implying that, given the decisions of the Courts that he has sought to rely on, any such application made by himself to the Court would be granted in the current circumstances. It is not a matter for the Commission to determine what the outcome of the Court’s decision would be in any such circumstances.

[19] Neither party made submissions nor presented evidence that, if an unfair dismissal application has been heard and determined prior to a business going into voluntary receivership, an order for remedy by this Commission cannot subsequently be made without leave of the courts. I do not intend to determine such a question, however given the absence of an objection by either party to me making such an order I have considered the submissions and circumstances of this matter and make the following findings in relation to remedy.

Remedy

Written Submissions of the Applicant

[20] Mr Bechara initially submitted he was seeking the primary remedy of reinstatement pursuant to s.390 of the Fair Work Act 2009 (Cth) (the Act). Mr Bechara further submitted that reinstatement to a position on no less favourable terms and conditions to that in which he was employed prior to the termination is in all the circumstances reasonable and practicable. 13

[21] Mr Bechara’s representative, Mr Maurice Addison, later advised due to the circumstances of Ashford Homes going into liquidation Mr Bechara is no longer seeking reinstatement as a remedy, but rather, Mr Bechara is seeking compensation of up to the statutory cap be awarded pursuant to s.392 of the Act.

Written Submissions of the Respondent

[22] Ashford Homes submitted reinstatement of Mr Bechara to his previous position at Ashford Homes is not appropriate due to it having lost trust and confidence in Mr Bechara as an employee and that no suitable position is available within Ashford Homes to which he could be reinstated. 14

[23] Ashford Homes further submitted it would be manifestly unfair for any compensation order to not take account of the financial impact of Mr Bechara’s ‘misuse’ and ‘over spending’ of the company supplied fuel card. 15 They submitted that Mr Bechara’s over spending of $6,956.80 equates to approximately 4.1 weeks’ pay.16

Consideration

[24] The Fair Work Act 2009 (Cth) (the Act) provides the following with respect to remedy:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b)  the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a)  the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[25] Mr Bechara does not seek reinstatement as Ashford Homes is currently under external administration.

[26] I have carefully weighed the submissions of Mr Bechara and Ashford Homes and have taken into account the evidence that Ashford Homes is under external administration. I am satisfied that reinstatement is not appropriate in this instance.

[27] Section 392 of the Act sets out the criteria to which I must give regard in determining any amount of compensation I might order Ashford Homes to pay Mr Bechara. I will consider each of these in succession below.

[28] In determining the amount of compensation to be ordered, the Act provides:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e)  the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

The effect of the order on the viability of the employer’s enterprise

[29] Ashford Homes did not make any submission regarding the effect of an order on the viability of their enterprise.

[30] In considering the effect any order I make would have on the viability of the employer’s enterprise I have had regard to the materials before me and Mr Bechara’s submissions.

Length of the person’s service with the employer

[31] Mr Bechara had been employed by Ashford Homes for a period of approximately four years and two months which is not an insignificant length of service.

Remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[32] Mr Bechara submitted that it would be appropriate that compensation ordered be up to the statutory cap of 26 weeks’ pay. 17

[33] Ashford Homes submitted that notwithstanding the finding that Mr Bechara was unfairly dismissed, it was clear that Mr Bechara refused all attempts to discuss any changes to his role despite repeated attempts by management. 18

[34] Ashford Homes submit that if those discussions had taken place and no agreement could be reached, a possible outcome could have been that Mr Bechara was made redundant, for which he would have received eight weeks’ pay in addition to the pay in lieu of notice already received. 19

[35] Mr Bechara had an annual income of $125,000 plus a vehicle for both work and personal use. The value of the vehicle for personal use at the time of his dismissal was estimated by Ashford Homes at $9,486.05 per annum. 20 Therefore his gross weekly earnings would have been $2586.27.

[36] I prefer the submission of Ashford Homes in that attempts to discuss any changes to Mr Bechara’s role were proving to be fruitless and consequently he was likely to be made redundant in the course of the coming months. I could not reach a conclusion that Mr Bechara’s employment would have endured beyond four weeks before he would have been made redundant.

[37] In reaching my conclusion I have given consideration to the likelihood of the employment relationship having been sustained over time and the likelihood of Mr Bechara being made redundant. As a result I determine that the total period for which Mr Bechara would have received remuneration had he not been dismissed is 12 weeks.

[38] Mr Bechara’s gross earnings for the period from the time of his termination up until the four week period for which I believe that he would have remained in employment and the eight week redundancy payment he would have received amounts to $31,035.25.

The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[39] Mr Bechara submitted that he made significant efforts to mitigate his loss and to seek alternative employment. 21 Ashford Homes made no submission as to this criterion.

[40] I am satisfied that Mr Bechara sought to mitigate his loss from the date of his dismissal.

The amount of remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[41] I have adopted the approach of the Full Bench of the AIRC in Ellawala v Australian Postal Corporation 22 as follows;

“Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the “anticipated period of employment”. This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the “anticipated period of employment” are deducted. An example may assist to illustrate the approach to be taken.

In a particular case the Commission estimates that if the applicant had not been terminated then he or she would have remained in employment for a further 12 months. The applicant has earned $3,000 a month for the 18 months since termination, that is $54,000. Only the money earned in the first 12 months after termination (that is $36,000) is deducted from the Commission’s estimate of the applicant’s lost remuneration. Monies earned after the end of the “anticipated period of employment”, 12 months after termination in this example, are not deducted. This is because the calculation is intended to put the applicant in the financial position he or she would have been in but for the termination of their employment.”

[42] Mr Bechara submitted that he had earned nothing of any significance since the termination of his employment. 23

[43] Ashford Homes did not make any submissions or seek to challenge Mr Bechara’s submission on earnings since the time of his dismissal, other than that Mr Bechara received five weeks termination payment at the time of his dismissal.

[44] I determine the amount of compensation required to put Mr Bechara back in the financial position he would have been in had he not been dismissed from his employment is $31483.50 gross.

Any amount of income reasonably likely to be earned during the period between the making of the order and the actual compensation.

[45] Mr Bechara submitted there was little likelihood that he would earn any significant income between the making of the order and the payment of actual compensation. 24

[46] I have considered this criterion in the context of the above. Only the money earned in the 12 weeks after the termination of employment is to be deducted from what I estimate to be Mr Bechara’s lost remuneration. As Mr Bechara had not been able to gain employment during this period he was unable to mitigate his loss, I therefore make no deductions for earnings to the compensation determined.

Any other matter that the FWC considers relevant

[47] There are no other reasons relevant to my consideration.

[48] Ashford Homes did not specifically make submissions in relation to the reduction of any compensation amount ordered by an appropriate amount on account of any misconduct by Mr Bechara. As outlined above, it did submit that Mr Bechara’s ‘over spending’ on the company supplied fuel card of $6,956.80 equates to approximately 4.1 weeks’ pay.

[49] Mr Bechara submitted the conduct complained of does not amount to misconduct, rather that there has been a mistake on his part as to his entitlement. 25 Further, Mr Bechara submitted that he did not accept, on the common accepted definition of misconduct, that he indeed engaged in such misconduct. 26

[50] Further, Mr Bechara submitted that the amount quoted by Ashford Homes in terms of what it says was overspent by him is nothing more than a guess, made by comparing the fuel use of one supervisor to that of Mr Bechara. He submitted that factors such as traffic, road conditions and the length of journeys had not been factored into this calculation. 27

[51] I have considered the evidence and the submissions and I do not consider there has been any misconduct which would require me to reduce the amount of compensation, rather a misunderstanding between the parties due to a poorly managed entitlement.

[52] I do not include any component by way of compensation for shock, distress or humiliation caused by the manner of the dismissal.

Conclusion

[53] There were no objections by the parties to making a decision on remedy based on the materials before me.

[54] For the reasons I have discussed above, Ashford Homes must pay to Mr Bechara the amount of $31,035.25 plus applicable superannuation, less appropriate taxation as required by law. This amount must be paid within 30 days of the date of this decision and consequential order 28.

COMMISSIONER

Final written submissions:

Applicant, 8 June 2017

Respondent, 17 June 2016

 1   Bechara v Ashford Homes Pty Ltd T/A Ashford Homes [2016] FWC 3542

 2   Ibid

 3 Applicant’s Submissions re: Corporations Act, [8]; MG Corrosion Consultants Pty Ltd v Gilmour [2012] FCA 383

 4 [2009] FCA 749

 5 Applicant’s Submissions re: Corporations Act, [10]

 6   Swaby v Lift Capital Partners Pty Ltd [2009] FCA 749

 7 Applicant’s Submissions re: Corporations Act, [13]

 8   Ibid, [14]

 9 [2012] FCA 1388

 10 Applicant’s Submissions re: Corporations Act [16]

 11   Ibid [18]

 12   Ibid [19]

 13   Applicant’s Submissions on Remedy [21]

 14   Respondent’s Submissions on Remedy [2.2]

 15   Ibid [5.6]

 16   Ibid [5.7]

 17   Applicant’s Submissions on Remedy [23]

 18   Respondent’s Submissions on Remedy [5.4]

 19   Ibid [5.5]

 20   Bechara v Ashford Homes Pty Ltd T/A Ashford Homes[2015] FWC 8858, [17]

 21   Applicant’s Submissions on Remedy [28]

 22   Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109

 23   Applicant’s Submissions on Remedy [29]

 24   Ibid [30]

 25   Ibid [13]

 26   Ibid [31]

 27   Ibid [32]

 28   PR594250

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