Johansen v Firefly Coaches Pty Ltd
[1997] IRCA 149
•2 May 1997
DECISION NO:149/97
CATCHWORDS
INDUSTRIAL LAW - alleged UNLAWFUL TERMINATION - TERMINATION OF EMPLOYMENT - VALID REASON - ONUS OF PROOF - CONDUCT AND PERFORMANCE - series of performance issues leading to termination - lack of OPPORTUNITY TO RESPOND - REMEDY - COMPENSATION
Workplace Relations Act 1996 (Cwth) ss170DC, 170DE, 170EDA, 170EE.
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371;
Wadey v Y.W.C.A. Canberra (unreported, IRCA, Moore J, 12 November 1996);
Perrin v Des Taylor Pty Ltd (1995) 50 AIR 254;
Reader v Wyndham Lodge Nursing Home Inc. (unreported, IRCA, Moore J, 26 March 1997);
Walton v Mermaid Dry Cleaners Pty Ltd (unreported, IRCA, Moore J, 24 October 1996);
Kenefick v Australian Submarine Corporation Pty Ltd (No. 3) (IRCA, Wilcox CJ, 26 July 1996, unreported);
Davis v Portseal Pty Ltd (unreported, IRCA, Moore J, 26 November 1996, Full Court, 10 April 1997);
R J Gilbertson (Qld) Pty Ltd v Lloyd (unreported, IRCA, Full Court, 29 November 1996);
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199.
Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch (1995) 63 IR 1;
Burazin v The Blacktown City Guardian Pty Ltd (1996) 142 ALR 144.
JOHANSEN v FIREFLY COACHES PTY LTD
VI95/6204
Before: MURPHY JR
Place: MELBOURNE
Date: 2 MAY 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI95/6204
BETWEEN:
SHAREE ASHLEY JOHANSEN
Applicant
AND
FIREFLY COACHES PTY LTD
Respondent
BEFORE: MURPHY JR
PLACE: MELBOURNE
DATE: 2 MAY 1997
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The respondent pay to the applicant the sum of $3,000.00.
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
VI95/6204
BETWEEN:
SHAREE ASHLEY JOHANSEN
Applicant
AND
FIREFLY COACHES PTY LTD
Respondent
BEFORE: MURPHY JR
PLACE: MELBOURNE
DATE: 2 MAY 1997
REASONS FOR DECISION
Delivered ex tempore
The applicant seeks a remedy under s170EA of the Workplace Relations Act (Cwth) (“the Act”). She alleges that her employment as a reservations clerk at the respondent's Spencer Street Coach Centre was unlawfully terminated by the respondent on 5 December 1995.
Breach of s170DC admitted.
The respondent, after two days of evidence, conceded that the circumstances of the termination of the applicant's employment contravened s170DC of the Act. The respondent maintained, however, that it had a valid reason to terminate the applicant's employment. It further argued that because it had made out a valid reason for termination the consequences were that the applicant had suffered a minimal loss as a result of the respondent's admitted breach of s170DC of the Act.
The course of evidence
The course of evidence in these proceedings illustrates two things. The first is the difficulty a court often faces in controlling the scope of evidence where the originating process of the court is a plain English form, and where the matters proceed on oral evidence alone, without any pleadings or witness statements. The second in this case is an example of the importance of the policy reason behind s170DE(1) and s170EDA(1) which place both a substantive and evidentiary onus on the employer to prove it had a valid reason to terminate employment. The policy reason for this onus provision was described by Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 372, as being because only the employer knows why it terminated the employee's employment.
The respondent led evidence on a range of matters for two reasons. The first was to seek to satisfy the onus of proof that it had a valid reason to terminate, and second to lay the foundation for a submission that the applicant should not be awarded any compensation for the respondent's admitted breach of the Act. The evidence ranged very widely.
Evidence on the reason for the termination.
It was the respondent's case that the applicant's employment was terminated because, despite a number of written and verbal warnings, she failed to meet appropriate standards required for her position as a reservations clerk. It particularly relied on a number of incidents where the applicant had been rude to travel agents and clients, particularly on the telephone, and generally failed to accept the authority of the reservations manager, Mr Dominic Bono.
This behaviour of the applicant was, on the respondent's version, brought to a head by a complaint from a major customer of the respondent, the Bus Booking Company (“the BBC”). The managing director of that company, Mr Sanderson, indicated that his agency no longer intended to deal with the respondent while the applicant was involved. Mr Sanderson's approach to the respondent followed a particular incident between the applicant and Mr Sanderson's employee, Ms Rodriguez. In that incident the applicant had refused to give her name to Ms Rodriguez, abused her, hung up and subsequently refused to take the return phone call.
After this incident, which Ms Rodriguez said occurred in early November 1995, she telephoned Mr Frank Bono, the respondent’s manager, and conveyed to him what had happened. Mr Frank Bono asked her to put it in writing because he had had so many complaints in the past. Mr Frank Bono gave evidence that Ms Rodriguez had referred to a heated argument.
Subsequently on 28 November Mr Frank Bono received a letter from Mr Sanderson (Exhibit R1). Mr Sanderson also called Mr Joe Bono, a director of the respondent, who passed the call to Mr Frank Bono on 4 December.
At that time Mr Sanderson stated that he was "very disappointed in the sense that he had no intention at the moment, whilst the applicant's actions were continuing", to book the respondent's services. Mr Frank Bono then raised the matter with Mr Joe Bono. Mr Joe Bono instructed Mr Frank Bono to "write a letter regarding all the matters that had happened and then to call the applicant in" to give her view. In fact Mr Frank Bono wrote a letter (Exhibit R9) that informed the applicant that her services were no longer required, effective immediately. The letter offered the applicant the opportunity to resign. It is that letter of 5 December that the respondent conceded in the running formed the basis of its admitted breach of s170DC of the Act.
Events of 5 December.
Mr Joe Bono accepted, in response to questions from the Court, that the letter of 5 December made no reference to the applicant being given an opportunity to respond to the contents of the letter. Mr Frank Bono's evidence was that he handed the letter to the applicant and invited her to respond. Under cross-examination he conceded that the applicant was "a dead duck" when she arrived at the Maidstone office.
The applicant's evidence was that she arrived at Maidstone and was handed the letter. She briefly looked at it and asked to see the complaints. She was told they were in the mail. Although Mr Frank Bono denied using this term he did say that he refused to give the applicant the letter of complaint from Mr Sanderson. The applicant's version continued with her evidence that she was told that she could resign or come back and pick up a cheque. She went home to prepare a response. She returned an hour or so later with a letter (Exhibit R10), refusing to resign and stating that she had seen no "evidence of the alleged complaints".
To the extent that there was real conflict on the evidence of what happened on 5 December I prefer the applicant's account. I am satisfied that the only response that was sought from her on that day was to the proposition in the letter that she either resign or be terminated. I do not accept that she was given an invitation by Mr Frank Bono to respond to the conclusion in the letter that as a result of complaints about her attitude and mannerisms her employment was to be terminated "on the grounds of improper conduct and not being able to fulfil [her] employment requirements as required". On its own account the respondent was correct in conceding a breach of s170DC of the Act.
Events prior to 5 December.
The respondent led a volume of evidence seeking to discharge its onus of proof that it had a valid reason to terminate the applicant's employment on 5 December. In the chronological order that Mr Frank Bono chose to record them on a sheet in the applicant's personnel file (Exhibit R2) they commenced in February 1995 when the applicant was warned about lateness and her customer manners. In August 1995 there was an incident regarding the way the applicant dealt with a customer who had a parcel that was due to be shipped to Poland. In September 1995 the applicant and Mr Dominic Bono had an argument and were called to the Maidstone office and given a written warning (Exhibit R3) that such conduct should not recur. This occurred soon after Mr Dominic Bono was appointed as the applicant's supervisor at the Spencer Street Coach Centre. In early October the applicant was called into the office and counselled following a number of complaints about her phone manners. The conversation was confirmed in writing in a letter dated 3 October (Exhibit R4).
On 4 October the respondent received a complaint from Ms Pippa Ellis of Ableair Travel Centre (Exhibit R5), about an incident involving the applicant. Mr Frank Bono did not raise this directly with the applicant as it was of the same nature as those he had raised with her a couple of days earlier. Mr Joe Bono gave evidence that he did. On 2 November Mr Frank Bono wrote to the applicant (Exhibit R6) about three separate matters. These were an incident involving a passenger at Highpoint West, an incorrect cash refund and personal telephone calls. The matters were the subject of a discussion at the Maidstone office between Mr Frank Bono, Mr Joe Bono and the applicant.
The central dispute as to this discussion was whether, in the course of it, the applicant was given a final warning as to her performance. Mr Frank Bono gave evidence that he gave the applicant a final warning in that meeting. Mr Joe Bono also maintained that he told the applicant "I will give you one more chance to improve yourself or it will not be tolerated".
The applicant denied she was given a final warning at that meeting. She maintained the tone of the meeting had been quite friendly. The only reference to a final warning is in the respondent's second letter to the applicant on 5 December (Exhibit R11).
In his final address counsel for the applicant submitted that the Court should find that no final warning was given on the basis that, contrary to previous practice regarding warnings and counselling, the alleged warning was not recorded by Mr Frank Bono, nor was it confirmed in writing.
This failure of the respondent to record the warning in either or both of the ways it had on other occasions is of significance here. Given the way the respondent had dealt with the applicant in the past I am not satisfied that the respondent indicated to the applicant on that occasion that it would terminate her employment in the event of any further performance related issue. My reason for this conclusion relates to the incidents that were under discussion. While the applicant was, on the respondent's account, culpable in relation to each of them, they were not of such a serious nature that they would warrant a final warning.
Further, it is significant that there was no evidence that the applicant's immediate supervisor, Mr Dominic Bono, had been advised of the fact that the applicant had been placed on a final warning. It is significant that around 1 December Mr Dominic Bono issued to the three employees at the Spencer Street terminal, including the applicant, a set of rules (Exhibit R15) that was brought into being at the instigation of senior management. His evidence, unchallenged when given, was that the applicant refused to sign for her copy. He said the document was to “refresh the memories” of the employees. It would be surprising that senior management, when ordering the production of such a document, did not inform the applicant's superior that in relation to a breach of the standards set out therein, the applicant was on a final warning.
The Pila Rodriguez incident.
A further central aspect of the respondent's case was that the incident involving Ms Pila Rodriguez in and of itself constituted a valid reason to terminate the applicant's employment. The basis of this submission was first that it was indeed the applicant whose voice was recognised by Ms Rodriguez. The applicant, in her evidence, at first said she did not recall any such incident and then denied it. Counsel for the applicant put to Ms Rodriguez that in fact there was another employee named Cherie who performed similar duties with the respondent and thus Ms Rodriguez was mistaken.
Ms Rodriguez said she had dealt regularly with the respondent and recognised the applicant's voice. Counsel for the applicant submitted that the respondent should have called Ms Cherie Forster, the other employee. The respondent produced some pay records of Ms Forster (Exhibit R13). They indicated she only worked for a few days in September 1995, and not subsequently.
On the issue of whether it was indeed the applicant who had a telephone altercation with Ms Rodriguez I am satisfied that it was. I found the evidence of Ms Rodriguez convincing and declined to accept the applicant's denial on the point. It is more likely than not that Ms Rodriguez, being a repeated caller to the respondent, would be in a position to recognise the applicant as a person who had previously identified herself as Sharee. Also, in preferring the Rodriguez version the Court cannot ignore the history of recorded complaints about the applicant's telephone manner.
A more difficult issue is characterising, within the framework of the employment relationship, the Rodriguez incident.
A significant matter is the reaction of Frank Bono when he was informed about it by Ms Rodriguez. He apologised on behalf of the respondent and requested a written complaint. Ms Rodriguez apologised to him. That is where the matter was left until he received the letter from Mr Sanderson. Subsequently Mr Joe Bono spoke to Mr Sanderson and it was after that that the respondent moved to dismiss the applicant. Counsel for the respondent pointed to the evidence of Ms Rodriguez that she had never encountered such conduct in 10 years in the travel industry. He also pointed to the letter from Mr Sanderson and the evidence from Mr Frank Bono that sales from the BBC were down.
This latter point is corroborated to some extent by an entry in the applicant's file (Exhibit R2) on 5 October 1995 where Frank Bono recorded:
"Discussed with Dominic [Bono] as to why BBC was not booking as much as normal. Apparent argument with Sharee and BBC.”
Mr Dominic Bono also said he had attended at the BBC to discuss this. Mr Dominic Bono gave evidence that he was aware of the way the applicant dealt with another of the BBC's employees named Andrew.
The applicant's evidence was that her conduct was satisfactory. She maintained that nothing had been brought to her attention in the period from early November until her dismissal. While I accept this aspect of her evidence I find that she underplayed the extent to which her performance had been the subject of criticism by the respondent. Frank Bono's notes, and the correspondence tendered, being Exhibits R3, R4, R5, R6, R7 and R15, as well as the matters referred to by the respondent in its two termination letters, Exhibits R9 and R11, paint a formidable contemporaneous documentary picture of concerns about the applicant's conduct.
It is against this background that the evidence of Ms Rodriguez and the letter from Mr Sanderson (Exhibit R1), must be considered. I have already indicated that I accept Ms Rodriguez evidence. I also accept Ms Ellis' evidence that the applicant was in fact involved in the Ableair incident and was spoken to by Mr Frank Bono. It is recorded in a contemporaneous note made by Mr Frank Bono on the applicant's personnel file (Exhibit R2).
Mr Sanderson was not called to give evidence. The inferences that I am invited to draw are that he would not have assisted the respondent's case and that little weight should be given to the assertions in his undated letter (Exhibit R1).
I reject the invitation to give little weight to the representation contained in the letter. The letter is part of the records of the respondent and significant parts of its content were corroborated by the evidence of Ms Rodriguez and Mr Dominic Bono. That it was received by the respondent on 28 November is recorded by Mr Frank Bono in the applicant's file (Exhibit R2). The assertions in the letter, and the evidence of Ms Rodriguez, are central to the reason why the applicant was dismissed. The reason can be summarised as unacceptable conduct causing, or likely to cause, damage to the respondent's business.
The next issue is whether the failure to accord the applicant procedural fairness, as admitted by the concession of a breach of s170DC, means that the respondent has failed to discharge its onus of proof that it had a valid, in the sense of defensible, well-founded, or justified, reason to dismiss the applicant for her conduct and performance.
In considering this matter, my earlier findings as to the history of the applicant's performance with the respondent are significant. The Rodriguez matter standing alone may not have justified termination of employment. On the other hand, when the Rodriguez matter is combined with the earlier matters, the reason for the termination takes on a different perspective.
The distinction between form and substance is often elusive. Here the respondent reached its conclusion without according procedural fairness, but the conclusion it reached, namely that the applicant should not remain its employee because of her improper conduct, and being unable to fulfil the respondent's standards, was sound and defensible. It was sound and defensible even though, as I have found, the applicant was not given a final warning in early November. The applicant well and truly knew the performance standards required by the respondent. She had been warned and counselled in relation to those standards.
As a result of the applicant's dealings with BBC the respondent was faced with a threat to a significant part of its business. The decision to dismiss the applicant was a logical response to that situation. It could not be said to be capricious. It is not for the Court to substitute its own view of the decision, but to scrutinise whether it has a valid or justifiable quality within the context of the Act. In Wadey v Y.W.C.A. Canberra (unreported, IRCA, 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 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 s170DE(1). In putting it this way I am not attempting to depart from the views expressed by Northrop J in Selvachandran (above) which have been referred to, with approval, on a number of occasions. Lehmann was entitled to view Wadey’s conduct with the gravity she did. Her decision to terminate was for a valid reason.”
The respondent has discharged its onus of proof. There has not been a breach of s170DE(1) of the Act.
Remedy for a breach of s170DC of the Act:
The respondent has admitted a breach of s170DC of the Act. It submits that any compensation for the breach should be minimal because the applicant's employment, had procedural fairness been accorded, would not have lasted for more than a day.
In Perrin v Des Taylor Pty Ltd (1995) 58 IR 254 at 256 Moore J said:
“Its purpose [s170DC] is at least twofold. It is to give the employee the opportunity to demonstrate that the allegations have no foundation in fact or they should not be viewed as reflecting on the employee's capacity. In the present case, the applicant may have been able to show that the complaints about slow delivery of parts had no factual foundation or that there was an explanation for their slow delivery that did not relate to any want of effort on his behalf.
A second purpose of s170DC is that an employee with whom an allegation has been raised may be able to persuade the employer that, while the allegation is of substance, there are factors that should persuade the employer not to terminate the employment. They may be extenuating personal circumstances or they may involve undertakings about future conduct. The rights of an employee to be consulted about dismissal now embodied within s170DC are not novel: [citations omitted].”
The assessment of compensation for a breach of s170DC has been considered in decisions such as Reader v Wyndham Lodge Nursing Home Inc. (unreported, IRCA, Moore J, 26 March 1997); Walton v Mermaid Dry Cleaners Pty Ltd (unreported, IRCA, Moore J, 24 October 1996); Kenefick v Australian Submarine Corporation Pty Ltd (No. 3) (IRCA, Wilcox CJ, 26 July 1996, unreported); Davis v Portseal Pty Ltd (unreported, IRCA, Moore J, 26 November 1996, Full Court, 10 April 1997); R J Gilbertson (Qld) Pty Ltd v Lloyd (unreported, IRCA, Full Court, 29 November 1996).
In Gilbertson (above) the Full Court endorsed the often repeated comments of Wilcox CJ in Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199 at 212 where he said:
“....in assessing compensation for a breach of s170DC, it is appropriate to consider what would have been likely to occur if that breach had not occurred. It should not be assumed that the employee would have been dismissed anyway. Such an assumption ignores the rationale of procedural fairness and everyday experience that decision makers often change their minds when presented with another side of a case. It devalues s170DC to the point of redundancy.
On the other hand, it would be unrealistic for a court automatically to assume that, if this employer had complied with s170DC, the employee's employment would have continued indefinitely.”
In Davis v Portseal Pty Ltd (above) the Full Court endorsed this comment of Moore J at first instance:
“In considering what compensation should be awarded it is necessary to deal with past hypothetical events. That is, it is necessary to make the assumption that Davis [the employee] was given the opportunity and then assess what might have happened.
It is, in principle, no different to the task of assessing damages under section 82 of the Trade Practices Act 1974 (Cwth) discussed by the High Court in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 especially 349 to 356 per Mason CJ and Dawson, Toohey and Gaudron JJ. It is appropriate, in my opinion, to assess the compensation by reference to the likelihood of Davis' employment continuing. That is, compensation should be assessed, subject to the limits imposed by s170EE(3), having regard to the possibilities and probabilities that the employment would have continued if the opportunity contemplated in s170DC had been afforded to the employee.
I have already indicated that it is probable that Davis' employment would have terminated even if he had been given the opportunity to defend himself. I accept, however, that there is a slight possibility that it would not have been.”
In Kenefick v Australian Submarine Corporation Pty Ltd (above) Wilcox CJ said:
“The purpose of compensation under s170EE(2) of the Industrial Relations Act is to compensate a terminated employee for the loss the employee has suffered by reason of the employer's unlawful act; not to punish the employer for that act. If no loss is proved, there can be no award of compensation.”
Here the evidence was that the applicant's annual earnings were $27,190. She was paid some undisclosed amount in lieu of notice, and was not able to obtain employment until May 1996. Her evidence as to attempts to obtain alternative employment was the subject of challenge by counsel for the respondent. I accept the applicant's evidence on these efforts. The applicant has attempted to mitigate her losses.
Under s170EE(3) the limit of compensation that can be ordered in this case is $13,595. Counsel for the applicant sought the maximum. As the applicant was unemployed for some eight months after December 1995, I am satisfied that the losses she has sustained to date at least exceed the statutory cap under the Act, and are probably around $16,000.
This leaves for determination the quantum of the loss that the applicant has sustained by reason of the respondent's breach of s170DC. As Davis (above) indicates, the Court is assessing the value of a chance: the possibility or probability that had the applicant been accorded procedural fairness, her employment would not have been terminated.
Counsel for the applicant asserted that because the Rodriguez matter was, in his submission, of a minor nature, the probabilities were that the applicant would have remained employed had she been accorded procedural fairness. In support of that conclusion is the fact that despite the applicant's chequered performance, she had been employed by the respondent since September 1994, had her employment confirmed after a period of probation, and at one stage had been sent to Adelaide to work for some four or five weeks.
Counsel for the respondent asserted that at 5 December the applicant was gone. She had no contribution to make to the Rodriguez incident because she was responsible for it. She had refused to accept the authority of her supervisor Dominic Bono. As recently as 1 December she had refused to acknowledge a copy of the rules (Exhibit R15) he had handed to her. On the applicant's own evidence, when she was asked whether she was happy at work on 5 December she said:
“In a way I was, and in a way I wasn't.”
She later maintained that she had accepted Mr Dominic Bono's authority.
While there is force in the respondent's submissions that the applicant's employment may not have long endured, such an outcome was not inevitable, nor is it the end of the matter. I am satisfied that the applicant, by reason of the respondent's admitted breach of the Act, was deprived of the possibility of her employment continuing. She lost that chance. She also lost the chance to exit from the employment in a manner consistent with proper standards of management.
Had procedural fairness been accorded, she may have been able to secure a last final chance with an offer that, in the event of any further complaint, she would depart gracefully. Mr Sanderson may have accepted that as a resolution of the matter raised in his letter. These are matters of speculation, but in December 1995, with the busy holiday period approaching, it is reasonable to accept that there was more than a remote possibility that but for the respondent's breach of s170DC on 5 December, her employment may have continued, albeit for a limited period.
In considering the issue of compensation these comments of Lee J in Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch (1995) 63 IR 1 at 9, should also be recalled:
“It is also appropriate to keep in mind that the purpose of the Act in providing for compensation to be paid to an employee for an employer's failure to abide by the terms of the Act is not only to redress a wrong done to the employee but, in the public interest, to instil greater awareness of, and adherence to the provisions of the Act. A measure of compensation which addresses the consequences caused by conduct that has breached the Act assists to meet that purpose.”
These comments were cited with approval in Burazin v The Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 at 155. At 156 the Full Court said:
“Further, we accept that the words in s170EE(3) "the remuneration that the employee would have received or would have been likely to have received" can be described as a "reference point" for the calculation of compensation. But they are no more than that. They do not exhaustively state the matters to be taken into account. The court's power under s170EE(2) of the Act is to order payment of "such amount (of compensation) as the Court thinks appropriate". In making this assessment, the court is obliged to have regard to lost remuneration, but is not limited to that item. If the evidence establishes other damage flowing from the unlawful termination, the court is entitled to take that into account in making its assessment, up to the limits prescribed by paras (a) and (b) of s170EE(3).”
Here the applicant lost the opportunity to have her employment lawfully ended. That included the chance to gracefully resign rather than be offered the ultimatum contained in the letter of 5 December. For a woman of the applicant's experience in the workforce, the loss of that opportunity is significant. The lack of consultation also cost her the opportunity to negotiate to work out her period of notice, and thus have an opportunity to search for work while still in employment. The matters just discussed are all consequences that the respondent could have avoided imposing on the applicant, had it complied with the reasonable standards of management of labour expected in the community and laid down in s170DC of the Act.
Having regard to the considerations and the competing contingencies just discussed, I assess the appropriate compensation at $3,000 and I so order.
I certify that this and the preceding fifteen (15) pages are a true copy of the reasons for decision of Murphy JR as recorded on transcript and revised by the Judicial Registrar.
Associate: KAREN HALSE
Dated: 2 May 1997
APPEARANCES
Counsel appearing for the applicant: PETER MORRISEY Solicitors for the applicant: GILL KANE & BROPHY Counsel appearing for the respondent: STUART WOOD Solicitors for the respondent: FREEHILL HOLLINGDALE & PAGE Dates of Hearing: 13 & 14 FEBRUARY
& 30 APRIL 1997Date of Judgment: 2 MAY 1997
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