James Andrew John Nixon v Ord Minnett Limited

[1996] IRCA 83

DECISION NO:   83/96

CATCHWORDS

INDUSTRIAL LAW - review of exercise of power by a judicial registrar - scope of review - nature of powers that may be reviewed - approach to be taken to a challenge to an interlocutory order

Industrial Relations Act 1988 ss 170CD, 170EA, 376, 377

Andrews v Uniting Church in Australia Frontier Services t/a Old Timers (1995) 60 IR 437, 442
Foxcroft v The Ink Group Pty Ltd (1994) 1 IRCR 215, 217
Harris v Caladine (1991) 172 CLR 84, 95, 124-125, 153-154, 164
Hitchcock v Warner Bros Movie World (1995) 130 ALR 337, 342, 343-344
Keating v Teico Investments Pty Ltd (1994) 57 IR 339, 340, 343
Re Kwiatek and Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374, 380-381

No. VI 1625R of 1995

JAMES ANDREW JOHN NIXON v ORD MINNETT LIMITED

Marshall J
Sydney (heard in Melbourne)
14 March 1996

IN THE INDUSTRIAL RELATIONS        )
  )
COURT OF AUSTRALIA  )
  )

VICTORIA DISTRICT REGISTRY  )
  No. VI 1625R of 1995

BETWEEN:           JAMES ANDREW JOHN NIXON

Applicant

AND:  ORD MINNETT LIMITED
  Respondent

JUDGE:         Marshall J

PLACE:         Sydney (heard in Melbourne)

DATE:  14 March 1996

ORDER

THE COURT ORDERS THAT:

1.The respondent’s motion, notice of which was given on 26 February 1996, be dismissed.

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

IN THE INDUSTRIAL RELATIONS        )
  )
COURT OF AUSTRALIA  )
  )

VICTORIA DISTRICT REGISTRY            )  No. VI 1625R of 1995      

BETWEEN:           JAMES ANDREW JOHN NIXON

Applicant

AND:  ORD MINNETT LIMITED

Respondent

JUDGE:         Marshall J

PLACE:         Sydney (heard in Melbourne)

DATE:  14 March 1996

REASONS FOR JUDGMENT

BACKGROUND

On 17 February 1995 the applicant filed in the Victoria District Registry of the Court an application pursuant to s170EA Industrial Relations Act 1988 (“the Act”) in which relief, including reinstatement and compensation, was claimed arising out of the termination of his employment by the respondent on 6 February 1995. On 23 February 1995 the District Registrar referred the matter to the Australian Industrial Relations Commission (“the Commission”) for conciliation. On 12 May 1995, Commissioner Frawley certified that the Commission was unable to settle the matter by conciliation. On 11 October 1995 the respondent moved the Court for an order that the proceeding be dismissed pursuant to O.20 r 2(1)(a) of the Rules of Court, having regard to the amount of the applicant’s wages and the effect of s170CD of the Act. In the alternative the respondent sought an order that:-

“the question of whether by operation of s170CD of the Industrial Relations Act 1988 (Cth), the Applicant was entitled to apply to the Court for a remedy pursuant to s170EA(1), because of the amount of his wages, be decided separately from any other question and before trial of the proceeding on a date or dates to be fixed.”

Section 170CD provides that:-

“170CD(1)     The following Subdivisions do not apply to a termination of employment of an employee who is not employed under award conditions if:

(a)in respect of an employee who was continuously employed by the employer during the period of 12 months immediately before the termination day - on the termination day the employee’s relevant wages exceeded the applicable amount; or

(b)in respect of an employee who was continuously employed by the employer for a period less than 12 months immediately before the termination day - on the termination day the employee’s relevant wages exceeded the amount worked out using the formula:

days employed

365x   applicable amount

170CD(2)The applicable amount for the purposes of subsection (1) is:

(a)subject to paragraph (b), $60,000; or

(b)if regulations made in accordance with Subdivision CA prescribe a formula for the annual indexation of the amount referred to in paragraph (a) - the amount worked out using that formula as it applies from time to time.

170CD(3)       For the purposes of this section, an employee is taken not to be employed under award conditions if wages and conditions of employment of the employee are not regulated by one or more relevant awards that bind the employer of the employee.

170CD(4)In this section:

‘days employed’ means the number of days in the period for which the employee was continuously employed by the employer immediately before the termination day;

‘relevant award’ means an award or a State award;

‘relevant wages’, in relation to an employee, means the total amount of the wages that the employee received, or was entitled to receive, from the employer in respect of:

(a)if paragraph (1)(a) applies to the employee - the period of 12 months referred to in that paragraph; or

(b)if paragraph (1)(b) applies to the employee - the lesser period referred to in that paragraph;

but, in relation to an employee whose contract of employment prescribes normal hours for the performance of work (whether by prescribing the number of hours in which, or the times at which, work is normally to be performed in a particular period), does not include any wages, additional to normal wages, in respect of additional hours of work performed or in respect of work performed at other times;

‘termination day’ means the day on which the employer terminated the employee’s employment

‘termination of employment’ means a termination of employment that occurred before, or occurs after, the commencement of this section, but does not include a termination of employment in respect of which an application was made to the Court before that commencement.”

(Note: re 2(a) - $60,000 - indexed to $62,200 from 1 July 1995 - see Reg 30 DA)

The relevant notice of motion was supported by an affidavit of Dr Graham Floyd Smith.  Paragraph 8 of that affidavit stated that:-

“I have advised the respondent to file these applications in an attempt to save costs, as the issue of the applicant’s entitlement to apply to the Court for a remedy pursuant to s170EA(1) must be decided by the Court, and if it is decided in favour of the respondent it will be decisive of the litigation. The issue to be decided will effectively be whether “commission” or “brokerage” are encompassed in the ordinary meaning of wages.”

The notice of motion was heard by Judicial Registrar Ryan on 17 October 1995.  The Judicial Registrar adjourned that part of the notice of motion that relied upon O.20 r 2(1)(a) but, so far as is presently material, made the following order:

“...the question of whether by operation of s170CD the applicant was entitled to apply to the Court for a remedy pursuant to s170EA(1) because of the amount of his wages, be decided separately from any other question and before trial of the proceedings on a date to be fixed.”

On 27 November 1995 Judicial Registrar Parkinson heard the separate question which Judicial Registrar Ryan ordered should be decided before the trial of the proceedings. On 6 February 1996 Judicial Registrar Parkinson effectively decided that the applicant was entitled to apply to the Court for a remedy pursuant to s170EA(1) of the Act. Although not expressed in that form, the Judicial Registrar’s order, when read with her judgment, should be construed as answering the preliminary question in the affirmative.

By notice of motion dated 26 February 1996 the respondent sought to review the decision of Judicial Registrar Parkinson and sought an order that the application be dismissed having regard to the amount of the applicant’s wages.  On the return of the notice of motion before the Court on 4 March 1996, Mr P Burchardt, of counsel, appeared for the applicant and Mr S Wood, of counsel, appeared for the respondent.  By agreement the parties requested the Court to determine only the issue as to whether or not the decision of Judicial Registrar Parkinson of 6 February 1996 was reviewable by a judge of the Court.

THE LEGISLATIVE SETTING

Section 376 of the Act provides as follows:-

“Powers of judicial registrars

376(1)  The Rules of Court may delegate to the Judicial Registrars, either generally or as otherwise provided in the Rules, all or any of the Court’s powers in relation to proceedings in the Court, in so far as the proceedings relate to:

(a)a claim for an amount of not more than the amount specified in      the Rules; or

(b)a claim that the termination of an employee’s employment was unlawful, or that the proposed termination of an employee’s employment would be unlawful, whether because of this Act or any other law (including an unwritten law) of the Commonwealth or of a State or Territory; or

(c)an application under subsection 170ECB(1).

376(2)For the purposes of paragraph (1)(a), the Rules may specify an amount of not more than:

(a)$10,000; or

(b)such greater amount as the regulations prescribe.

376(3)Without limiting subsection (1), Rules of Court made because of that subsection:

(a)may delegate to the Judicial Registrars powers that could be delegated to the Registrar of the Court; and

(b)may so delegate powers by reference to powers that have been delegated to the Registrar of the Court under section 466.

376(4)  A power delegated to the Judicial Registrars is, when exercised by a Judicial Registrar, taken to have been exercised by the Court or a Judge, as the case requires.

376(5)  The delegation of a power to the Judicial Registrars does not prevent the exercise of the power by the Court or a Judge.

376(6)  The provisions of this Act, the regulations and the Rules of Court, and of other laws of the Commonwealth, that relate to the exercise of a power by the Court apply, in relation to an exercise of the power by a Judicial Registrar under a delegation under subsection (1), as if a reference to the Court or a Judge, or to a court exercising jurisdiction under this Act, were a reference to a Judicial Registrar.

376(7)  As well as the powers delegated under subsection (1), the Judicial Registrars have such other powers as are conferred on them by this Act, the regulations or the Rules of Court.”

Order 74 r 2 of the Rules of Court provides that:

“Powers of judicial registrars

2.        In relation to any proceeding in the Court, in so far as that   proceeding relates to:

(a)a claim for an amount of not more than $10,000 or such greater amount as the regulations may from time to time prescribe; or

(b)a claim that the termination of an employee’s employment was unlawful, or that the proposed termination of an employee’s employment would be unlawful, whether because of the Act or any other law (including an unwritten law) of the Commonwealth or of a State or Territory;

all the powers of the Court are delegated to each Judicial Registrar.”

Section 377 of the Act states that:-

“Review of decisions of judicial registrars

377(1) A party to proceedings may apply to the Court to review a Judicial Registrar’s exercise in the proceedings of a power delegated under section 376. An application must be made within the period prescribed by the Rules of Court or such further period as is allowed in accordance with the Rules.

377(2)  On an application under subsection (1) or of its own motion, the Court may review a Judicial Registrar’s exercise of a power so delegated.  The Court may make whatever order it considers appropriate in relation to the matter in relation to which the power was exercised.

377(3)  On the application of a party or of its own motion, the Court may refer to a Full Court of the Court an application under subsection (1).”

THE ISSUE

As is clear from s377(1) of the Act, what the Court may review is the exercise by a Judicial Registrar of a power delegated under s376 of the Act. A Judicial Registrar has all the powers of the Court in respect of the types of proceedings referred to in O 74 r 2, including applications under s170EA(1) of the Act.

A question arises as to whether or not a decision of a Judicial Registrar which does not involve the exercise of any substantive powers in an application which was made under s170EA(1) of the Act is subject to review.

In this matter the Judicial Registrar heard and determined a preliminary jurisdictional point which, having regard to her decision, did not finally determine the application.  The effect of her decision was that the application was competent.  Order 29 of the Rules of Court permitted the relevant question to be heard “separately from any other questions, whether before, at or after any trial or further trial in the proceedings”:  See Order 29 r 2.

THE AUTHORITIES

The nature of a review of an exercise of power by a Judicial Registrar, in the context of the Family Court of Australia, was considered by the High Court of Australia in Harris v Caladine (1991) 172 CLR 84. Mason CJ and Deane J (at 95) said as follows:-

“It seems to us that, so long as two conditions are observed, the delegation of some part of the jurisdiction, powers and functions of the Family Court as a federal court to its officers is permissible and consistent with the control and supervision of the Family Court’s jurisdiction by its judges.  The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court.  This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters.  The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court.  For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid.  Certainly, if the review is by way of hearing de novo, the delegation will be valid.  The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge.  In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration.”

(emphasis supplied)

At 124-125, Dawson J said that:-

“An order made by a Registrar is reviewable by way of a hearing de novo.  That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar.  The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar.  A hearing de novo involves the exercise of the original jurisdiction and ‘the informant or complainant starts again and has to make out his case and call his witnesses’: Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. (1976) 135 C.L.R. 616, at p. 620; see also Reg. v. Pilgrim (1870) L.R. 6 Q.B. 89, at p. 95.; Campbell, ‘Judicial Review and Appeals as Alternative Remedies’, Monash University Law Review, vol. 9 (1982), p. 14, n. 3.

A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing.  In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct.  An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence.  On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing.  But an appeal by way of rehearing does not call for a fresh hearing as does a hearing de novo; the appeal court does not hear the witnesses again:  see Builders Licensing Board v. Sperway Constructions (Syd.) Pty. Ltd. (1976) 135 C.L.R., at pp. 619-620; Quilter v. Mapleson (1882) 9 Q.B.D. 672, at p. 676; and Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 C.L.R., at pp. 107-111.”

(emphasis supplied)

At 153-154, Gaudron J, in dealing with the relevant provisions of the Family Law Act 1975, said that:-

“It is necessary to turn to the nature of the review process required by s. 37A(9) of the Act. In so far as that sub-section provides for the ‘review’ of the ‘exercise of [a] power’ delegated to a registrar or deputy registrar in accordance with that section, it was clearly intended that there should be a process enabling complete consideration of the matter as dealt with and not merely a process, such as is involved in the appeal process under s. 94 of the Act, directed to remedying errors of law.”

(emphasis supplied)

At page 164 McHugh J said:-

“The delegation of power to an officer of this Court or a federal court, subject to review by a Justice or judge of that court, does not take away from the Justices or judges of the court the power to give the binding and authoritative decision in the action.”

(emphasis supplied)

In Re Kwiatek and Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374, Northrop J considered the nature of a review of the exercise of a power by the Registrar of the Federal Court of Australia under the Bankruptcy Act 1966.

At 380-381 his Honour said:

“In exercising the power conferred by s 31A(6) and (7) the Court is exercising original jurisdiction. It is not exercising appellate jurisdiction. In this respect, it is unlikely that the principles enunciated in House v The King should have any application. A reference to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) shows that the Court, in the exercise of its original jurisdiction, hears an appeal, on a question of law, from a decision of the Administrative Appeals Tribunal. In these circumstances, the Court does not exercise the discretion conferred upon the Tribunal. The jurisdiction of the Court is limited to questions of law.

Under s 31A, a Registrar of the Court is exercising powers conferred by the Act initially on the Court itself. The Registrar is an officer of the Court. A party to a proceeding before the Registrar exercising a power referred to in s 31A(1) may make application that the proceeding be referred to the Court whereupon the Registrar must make arrangements for it to be heard by the Court. Where a review of the exercise of the power by a Registrar is undertaken by the Court it is important that there should be as little restriction as possible on the method by which the review is conducted. In reality, the Court is exercising a power conferred initially upon it. Unless authority constrains me to take a different view, it is my opinion that the review should be a rehearing based upon the evidence before the Registrar supplemented by any evidence the parties desire to produce.”

In Foxcroft v The Ink Group Pty Ltd (1994) 1 IRCR 215, Wilcox CJ said at 217 after referring to s377 of the Act that:-

“It will be noted that the power of review is not limited to orders finally disposing of a claim.  It extends to interlocutory orders.  However, special considerations apply to challenges to interlocutory orders, whether by review or appeal, and especially interlocutory orders concerning matters of practice and procedure.  This has been stated by appellate courts on numerous occasions.”

In that case the Chief Justice heard and dismissed a review of a decision of a Judicial Registrar to refuse to refer the matter back to the Commission for further conciliation. It appears that the Chief Justice’s approach to the nature of a review in Foxcroft is at odds with that of Northrop J in Kwiatek.

In Keating v Teico Investments Pty Ltd (1994) 57 IR 339, at 340, Northrop J referred to ss 376 and 377 of the Act and noted that:-

“These provisions are almost identical with provisions contained in s 31A of the Bankruptcy Act 1966 (Cth). Under that section certain powers of the Federal Court in identified matters may be exercised by Registrars of the Federal Court. Section 31A(6) and (7) are, for present purposes, identical with the provisions of s 377(1) and (2) of the Industrial Relations Act. Authorities have made it clear that a review under s 31A(6) of the Bankruptcy Act is by way of a re-hearing de novo on material put to the Court at that hearing.  This is made clear by a reference to one of a number of cases on the issue: see Re Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374.

My tentative view is that a similar approach should be adopted in relation to reviews under s 377 of the Industrial Relations Act with the result that when a final order is made by a Judicial Registrar in a proceeding of the kind which I will describe in a moment, a party can seek a review of that final decision.”

The decision in Keating was relied upon by Gray J in Andrews v Uniting Church in Australia Frontier Services t/a Old Timers (1995) 60 IR 437 at 442, to support his Honour’s thesis that:-

“... It is only when the exercise of those powers is completed in relation to a particular application that the right of review is available in accordance with s 377. It is the totality of the exercise of the powers of the Court by the judicial registrar which is subject to review, not the particular exercise of those powers in the making of a particular decision. Northrop J pointed this out in Keating v Teico Investments Pty Ltd (1994) 57 IR 339 at 340. Thus, it is only when the judicial registrar has made a final order that review can be sought. If this were not the case, trials before judicial registrars could be interrupted constantly by applications to review rulings on the admissibility of evidence and every interlocutory decision of a judicial registrar could be the subject of a separate application for review. That cannot have been the intention of Parliament. This conclusion also makes it important that judicial registrars should endeavour to avoid making orders of a final nature (particularly for reinstatement in employment), coupled with orders of an interlocutory kind (such as the reservation of costs). The right to a review will not arise until the judicial registrar has completed his or her exercise of the delegated powers of the Court in relation to the matter.”

In Hitchcock v Warner Bros Movie World (1995) 130 ALR 337, Moore J referred, at 342, to the decision of the Chief Justice in Foxcroft and said:-

“...I do not consider that parliament intended that s 377 was to provide a mechanism for the review of the exercise of any power by a judicial registrar in the course of hearing and determining an application concerning a matter referred to in s 376(1)(a) and (b). .... If s 377 creates the right to have reviewed the final determination by a hearing de novo, then there is no obvious legislative purpose served by permitting the review of all powers exercised in the process of making that final determination if the final determination, and any interlocutory decisions leading to it, can be exercised again by a judge.”

At 343-344, his Honour said:-

“It is unnecessary in this judgment to endeavour to determine exhaustively what are the powers amenable to review under s 377 and whether ‘may’ in s 377(2) invests a judge with a discretion to hear a review. It is sufficient to say that, in my opinion, the constitutional requirement is met if the judge has power to review by way of hearing de novo either upon application or of its own motion the exercise of the power finally disposing of the matter being dealt with by the judicial registrar and perhaps, in addition, the exercise of powers which, to adopt the language of Mason CJ and Deane J at CLR 94 constitute ‘the more important aspects of contested matters’. Sections 377 and 378 should be construed so as to give effect to that requirement and as not having any wider operation.

This construction of s 377 is reinforced by the combined effect of s 376(6) and s 420 which is to create a right of appeal from an interlocutory order of a judicial registrar though only with leave. This is the means by which parliament has provided a further avenue of supervision of the exercise by a judicial registrar of a delegated power to make an interlocutory order in the more general exercise of power to hear and determine a matter.

I return to the question of whether the judicial registrar has exercised a power to which s 377 applies in these proceedings. He has expressed a view about one matter that bears upon his jurisdiction. He has not dealt exhaustively with whether jurisdiction exists, and the operation of reg 30B is only relevant if there has been ‘a termination of employment’ as that expression appears in s 170EA. While the registrar uses the word ‘declare’ in the penultimate paragraph of his decision which I set out earlier, it does not appear, in context, to be intended to have any particular legal significance and, in particular, to be an order under s 417. Had the judicial registrar, consistent with the principles discussed in Blurton, [Blurton and Others v Minister for Aboriginal Affairs (1991) 29 FCR 442], decided to try the separate issue of jurisdiction in exercise of the powers under O 29, a determination of that matter may have been amenable to review under s 377, though that is a matter I need not now finally decide.”

Moore J left open for future determination the very issue which I must now decide.

CONCLUSION

For the reasons expressed by Moore J in Hitchcock and Gray J in Andrews I am of the opinion that the intention of the Act is to provide the parties to a proceeding heard by a Judicial Registrar with a right to seek a review of that exercise of such power at the conclusion of its exercise. In my view the exercise of the powers of the Court under O 29 to try a separate issue of jurisdiction is only reviewable if that issue of jurisdiction is decided in a way that concludes the matter. In such circumstances the order of the Judicial Registrar will be a final one.

I believe that support for such an approach is capable of being drawn from the previously cited quotations from the judgments of members of the majority in the High Court in Harris (and especially from those portions which are underlined in the judgments of Dawson, McHugh and Gaudron JJ), but more particularly from the decisions of members of this Court in Andrews and Hitchcock.  I believe that it is consistent with Andrews to answer the question left open by Moore J in Hitchcock in the way I have above for the following reasons.

Moore J in Hitchcock, at 343-344, expressed a view that a review under s 377 must be a review of an exercise of power which finally disposes of the matter “and perhaps, in addition, the exercise of powers which, to adopt the language of Mason CJ and Deane J at CLR 94 constitute ‘the more important aspects of contested matters’. Sections 377 and 378 should be construed so as to give effect to that requirement and as not having any wider operation.”.

Mr Wood submitted that Gray J erred in Andrews by relying on Keating whereas, in truth, so the submission went, Keating (especially at 343) did not support the approach taken by Gray J in Andrews. This was submitted to be so because Northrop J at 343 in Keating said that if a notice of motion for an adjournment was refused “it may well be an exercise of a power which can be reviewed, in appropriate circumstances by the Court.  That did not happen here.”.  That passage from Keating is obviously obiter dicta and, with respect, is expressed tentatively. His Honour did not set out what the “appropriate circumstances” were. It is unhelpful to speculate as to what his Honour may have had in mind. Other aspects of Northrop J’s decision unequivocally support Gray J’s reliance upon it, especially his Honour’s conclusion later at 343 that:-

“Once a final order has been made review can be had under s 377.”.

I do not understand Mason CJ and Deane J in Harris where they refer to “the more important aspects of contested matters” to be doing more than identifying the types of matters which would ordinarily be dealt with by judges of a federal court.  I do not apprehend it as giving weight to a view that certain more important issues such as jurisdictional issues be the subject of review, even if not finally disposing of a matter, and that less important procedural aspects of matters such as adjournment applications not be so dealt with.

I agree with the views expressed by Gray J in Andrews and inferentially held by Moore J in Hitchcock that Foxcroft should not be followed in so far as it stands for the proposition that an order of a Judicial Registrar which does not finally dispose of a matter is reviewable by a Judge of the Court.  I do so, with the greatest of respect to the Chief Justice, especially given that the decision in Keating appears not to have been referred to him in the course of the proceedings in Foxcroft.

I agree with the submissions of Mr Burchardt that the decision and orders of Judicial Registrar Parkinson of 6 February 1996 cannot be the subject of a review under s 377 of the Act as they do not finally dispose of the matter before the Judicial Registrar. As Moore J said in Hitchcock, decisions of Judicial Registrars which do not lead to any final order in the proceedings may be the subject of applications for leave to appeal to a Full Court as a result of the combined effect of ss 420 and 376(6) of the Act. The order of the Court is that the respondent’s motion, notice of which was given on 26 February 1996, be dismissed.

I certify that this and the preceding 16 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.

Associate:  

Date:  14 March 1996

Counsel for the Applicant:  P. Burchardt

Solicitor for the Applicant:  Kenna Croxford & Co

Counsel for the Respondent:  S. Wood

Solicitor for the Respondent:  Clayton Utz

Date of hearing:  4 March 1996

Date of judgment:  14 March 1996