JOHN Webb v Stratton Finance Pty Ltd

[2013] FCCA 2197

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOHN WEBB v STRATTON FINANCE PTY LTD [2013] FCCA 2197

Catchwords:
INDUSTRIAL LAW – Employment agreement – where applicant employed as a finance consultant for respondent, a finance broking house – where respondent’s company received commissions for completed deals – where applicant employed on commission only basis – where applicant paid a percentage of gross commission on all deals settled – where applicant paid weekly gross amount adjusted by income tax and shortfalls in next month’s commission payment – where deductions also made for introduction fees – where some agreements were subject to “clawbacks” where commission repaid if loan ended after a short period – where these clawbacks appeared on applicant’s commission sheet as deductions – where payslips did not reflect commission statements – where little evidence of applicant questioning deductions for third party commissions – whether applicant aware of third party commission deductions at time of entry into contract – whether applicant aware of clawbacks at time of entry into contract – whether ordinary use of adjective “gross” understood to be amended in contract – where applicant raised concerns about clawbacks with management when he became aware of them – whether clawbacks in accordance with contract – whether valid variation of contract to introduce clawbacks – whether applicant acquiesced or agreed to underpayment – whether applicant estopped from bringing claim – where respondent conceded unpaid sick and public holiday leave, unpaid accrued but untaken leave, unpaid annual leave, unpaid leave loading and superannuation – whether respondent breached relevant acts and Awards in regards to those underpayments.

Legislation:

Workplace Relations Act 2006, ss.247, 612, 719(7), 720

Fair Work Act 2009, ss.45, 87, 90, 99, 116

Banking and Finance and Insurance Award 2010, cl.13.1, 24.3

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd & Ors [2005] 219 CLR 165
Hamill & Co v Loughlin [1917] NZLR 784
Grundt v Great Boulder Pty Goldmines Ltd [1937] 59 CLR 641
Amalgamated Investment & Property Co Ltd (In Liquidation) v Texas Commerce International Bank Ltd (CA) [1982] 1QB 84
The United Grocers, Tea  and Diary Produce Employees’ Union of Victoria v Linaker [1916] 22 CLR 176

Applicant: JOHN WEBB

Respondent: STRATTON FINANCE PTY LTD

File Number: SYG 940 of 2013

Judgment of: Judge Raphael

Hearing dates: 4 & 5 December 2013

Date of Last Submission: 5 December 2013

Delivered at: Sydney

Delivered on: 20 December 2013

REPRESENTATION

Counsel for the Applicant: Mr C Cassimatis

Solicitors for the Applicant: Attwood Marshall Lawyers

Counsel for the Respondent: Mr D Parish

Solicitors for the Respondent: Yates Beaggi Lawyers

ORDERS

1. Parties to bring in Short Minutes of Order to give effect to these reasons by 4 February 2014.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 940 of 2013

JOHN WEBB

Applicant

And

STRATTON FINANCE PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. From 10 May 2006 until about 12 May 2012 Mr Webb was employed by Stratton Finance Pty Ltd[1] as a finance consultant located in Brisbane.  Strattons is a finance broking house.  It acts, inter alia, as a broker of auto finance.  It receives enquiries for persons wishing to obtain auto finance and finds finance houses willing to provide it.  It receives a commission upon completed deals.  It employs consultants to utilise its leads and those of the consultant to find potential borrowers and place the business.  Mr Webb was one such consultant.

   [1] “Strattons”

2. On 10 May 2006 Mr Webb entered into an employment agreement with Strattons.  The preamble to that agreement relevantly reads:

   “1(a)This agreement sets out all core terms and conditions of employment.  The Stratton Finance Human Resource Manual sets out details of application.  To the extent of any inconsistency, this agreement will prevail over the Manual.

   (b)This agreement replaces all letters of appointment, oral understandings or arrangements, and any other contractual obligations and entitlements that may have been previously created in respect of the Contractor’s employment relationship with Stratton Finance.

   (c)Notwithstanding anything to the contrary in this agreement, the parties are at liberty to enter into supplementary and legally binding arrangements and understandings in order to cater for special and/or extraordinary circumstances that may arise during the period of operation of this agreement.  Any such arrangements and understandings will prevail over this agreement, to the extent of any inconsistency, and will be recorded in writing signed by both parties.

   (d)This agreement runs in conjunction with the minimum conditions of the Property & Business Services Industry Sector Workplace Relations Act.”

3. Mr Webb was employed on what is known as a commission only basis.  His remuneration package was set out in paragraph 4 of the agreement:

   “4.An agreed amount 40% gross commission on all deal settled by the Contractor, to be paid by way of gross amount of $650.00 per week less income tax and balance of agreed amount payable monthly after reconciliation, less any applicable income tax. If a shortfall occurs next months [sic] commission will be adjusted accordingly.

   Any agreed change to the Contractor’s remuneration package (or to components thereof) will be fully documented and signed by Stratton Finance and the Contractor, and such document will be deemed to form part of this agreement, and thereby supersede this agreement to the extent of any inconsistency.”

4. The method of payment of salary was set out in paragraph 5:

   “5Salary as outline in section 4 will be paid by direct bank deposit into an account of the Employee’s choice on a weekly basis.  Balance of agreed Commission will be paid monthly upon receipt of commission statements from all financiers.”

5. The way in which Mr Webb’s remuneration was calculated was complex.  He would receive an advance on commission of $650.00 per week, a tax deduction in respect of that sum was made.  During the course of the month Mr Webb would complete a spread sheet which contained certain details of the deals done and the amount of commission claimed by him.  Regrettably, none of these original documents have been produced.  There was then a reconciliation done by Mr Wardle, the respondent’s bookkeeper at the end of each month.  This was called a commission statement.  It had a number of columns upon it. During the course of Mr Webb’s employment the form of the commission statement changed so that the number of columns also changed.  All the commission statements would indicate the amount of brokerage received by Strattons and then the commission payable to Mr Webb.  Sometimes they included columns which showed additional payment to Strattons generally known as an application fee.  This particularly applied to finance arrangement settled with BMW Finance and was in the sum of $250.00.  There was generally a column for a deduction. This was an introduction fee paid to a third party who introduced a borrower.  Mostly these payments were arranged by Strattons.  On rare occasions, mostly with a third party known as Hilmer, the arrangement was made with Mr Webb.  In those cases Mr Webb has conceded that the introduction fee was a deduction from his commission.  He does not make that concession in respect of any other deduction fees.

6. In some months the reconciliation statement would contain an additional series of entries referable to what was known as clawback.  Some of the finance companies, BMW Finance in particular, have an arrangement with Strattons whereby in certain circumstances commission that had been paid was later “clawed back” if the loan did not proceed for more than a short period of time, usually six months or if the vehicle was repossessed within that time.  These claw backs would be shown on the statement as deductions from Mr Webb’s commission.

7. Each week there was produced a payslip which was meant to be reflective of the arrangements between the parties.  As the evidence came out these payslips were not so reflective.  It is very difficult indeed to align the payslips with the commission statements.  Mr Webb gave evidence that he only received four or five of those payslips and the respondent only produced evidence of that number actually being sent to him by email.  Indeed, although the emails say that the payslips are attached there is no evidence on the email of an attachment. But nothing turns upon this.  I accept that Mr Webb only received five or six of these payslips even though hundreds of them are produced in the tender bundles.

8. When this application commenced Mr Webb sought relief under the Workplace Relations Act and the Fair Work Act and under his contract for what he claimed was non payment of sick and public holiday leave; accrued but untaken annual leave; unpaid taken annual leave; leave loading and superannuation. His major claim, however, was for a recalculation of the 40% commission which Mr Webb believed should not have been the subject of the deductions found in the main part of the commission statements or the clawbacks found in the latter part of the commission statements. It was his submission that a proper interpretation of the contract meant that he was entitled to 40% of the commission earned by Strattons including the application fees but excluding the introduction fees and the clawbacks. Immediately before the commencement of the hearing, in its helpful written submissions, Strattons conceded that it owed Mr Webb:

   a)$9,863.79 (sick and public holiday leave)

   b)$12,418.56 accrued but untaken leave

   c)$2,148.69 (unpaid annual leave)

   d)$1,133.35 leave loading;

   e)Superannuation upon the above sums of $2,284.60

9. These proceedings having been commenced in the Fair Work division of this court the applicant in his Amended Statement of Claim pleaded breaches of s.247 of the Workplace Relations Act1996[2] for failure to pay the applicant sick days between 23 May 2006 to 30 June 2009, breach of s.99 of the Fair Work Act2009[3] for failure to pay the applicant sick days taken between 1 July 2009 and 12 March 2012. It is also alleged a breach of s.612 of the WRA for failure to pay leave taken on public holidays between 23 May 2006 and 30 June 2009, breach of s.116 of the FWA for failure to pay leave taken on public holidays between 1 July 2009 and 12 March 2012.

   [2] “WRA”

   [3] “FWA”

10. The applicant claimed breaches of ss.87 and 90 of the FWA and clause 24.3 of the Banking and Finance and Insurance Award 2010[4] for failure to pay annual leave untaken and made a claim for failure to pay annual leave loading pursuant to clause 13.1 of the Award between 1 January 2010 and 12 March 2012.

    [4] “Award”

11. The superannuation claim was made pursuant to ss.719(7) and 720 of the WRA for the period 23 May 2006 to 30 June 2009; pursuant to s.45 of the FWA between 1 July 2009 and 12 March 2012. Given the respondent’s concessions it is clear that the court is bound to make findings of breaches in respect of the amounts conceded. In the event that the court finds that Mr Webb is entitled to further adjustment of his base pay or commission there will be additional sums payable to him for superannuation and failure to pay those latter sums would also constitute an infringement.

Discussion

1. In the light of the concessions made by the respondent the substantive issue in the case became the proper interpretation of clause 4 of the Employment Contract.  The parties were in agreement that the court would obtain assistance from the views expressed by the High Court Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd & Ors [2005] 219 CLR 165 at [40]:

   “[40]This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.”

   When one considers the surrounding circumstances known to the parties one must do this at the time the contract was entered into and not subsequently.  So, whilst it is clear that Mr Webb was aware within a reasonably short space of time after he commenced work that Strattons intended to deduct from his commission amounts paid to third parties and, slightly later, clawbacks, that is not necessarily the situation that applied when the contract was being negotiated.  Very little evidence of those negotiations has been produced.  The Court is thus unable to say that Mr Webb was made aware at that time that these items would constitute deductions.  It is therefore necessary to look at the conduct of the parties once the contract became operable to see if that sheds any light on the parties’ intention.  Mr Webb filled in parts of the spread sheet but he did not admit to filling in column B which was the third party commission deduction.  On the other hand, he did agree that when the third party introducer came through him and a fee was payable that would represent a deduction from his commission.  Mr Webb also gave evidence that he raised the question of the deductions with Mr Wardell but there is no documentary evidence of this.  On the other hand Mr Wardell gave evidence that Mr Webb put the figure in Column B although it was the company which made the deduction.  The Court accepts this evidence.  Mr Webb is an experienced finance consultant who had been doing this type of work for some time prior to his employment with Strattons.  It is the Court’s view that if he had not expected to come across this type of deduction in the spread sheets which he completed he would have queried this with Mr Wardell or Mr Kunkel his direct superior.  There is no evidence of such a query and as Mr Wardell was in Melbourne and Mr Webb in Brisbane the Court would have expected an email record to have existed if the enquiry or complaint had actually occurred.  Insofar as the surrounding circumstances might assist in defining the meaning of gross commission in clause 4 in regard to these deductions the Court is of the view that they would tend to indicate a mutual understanding that third party commissions were a deductible.

2. The Court is not as sanguine with regard to the clawbacks.  These were not matters that were entered in the spread sheet by Mr Webb and were not deductions that would have been known to him at the time of the deal.  They eventuated some months after the deal had been completed.  It is difficult in those circumstances to infer that at the time the contract was entered into this was a matter in the minds of the parties and understood by them to constitute an amendment of the ordinary definition of gross commission.  Gross is defined in the Macquarie Dictionary relevantly as:

   “Whole, entire, or total, especially without having been subjected to deduction, as for charges loss etc: gross profits.”

   In the Oxford Dictionary On Line it is defined as:

   “Entire, total, whole.  Now only opposed to net of an amount, value weight number or the like before necessary deductions have been made”

   In the Shorter Oxford Dictionary it is defined relevantly as:

   “The sum, the sum total: now esp … the whole amount earned.”

   And again as an adjective:

   “Entire, total, whole.  Now spec of an amount, value, weight etc without deductions, not net.”

3. The most relevant part of these definitions is that which describes the word as relating to a sum before deductions.  In Hamill & Co v Loughlin [1917] NZLR 784 at [787-788] per Cooper J in a decision relating to the commission payable to a stock and station agent his Honour said:

   “You are hereby authorised to sell or exchange the property described hereunder on commission of 2½% on the gross price.  I think … that the term “gross price” means the price per acre at which the agent is authorised to dispose of the property.  If it had been intended to limit the commission to 2½% of the amount remaining after deducting the amount of the encumbrances the term would have been “net price”.

4. I would echo his Honour’s views.  This contract was proffered to Mr Webb by Strattons, they used the word “gross”.  If they had intended that he should only earn commission on the net amount paid to them after deductions, including clawback, then they could easily have said so.  It is clear from the evidence that Mr Webb did raise the subject of clawbacks with management and I am satisfied that, unlike the situation with the introductory commissions, this was not something he understood at the time of entering into the contract would be deduction from the commission that he earned.  I would also note that if the deduction of clawbacks was intended to be a variation of the contract Strattons did not comply with its own terms to have the variation reduced to writing and signed by both parties.

5. In its submissions the respondent argues with regard to the proper definition of gross commission as follows:

   “a.The object of this clause of the contract was to peg the remuneration of Mr Webb to the commission received by Stratton.  This object would be achieved by paying Webb based on what Stratton received;

   b.The word “gross” is used a second time in the clause in referring to the pre-payment of $650 per week.  The context when compared to the pay slips indicates gross means before tax.  This same interpretation ought to be given the term “gross commission”;

   c.Consistent with the object of the clause, a businesslike interpretation applies to the commission received by Stratton after deduction of the introducer fee but the addition of an introducer fee.  It is businesslike because it means Stratton is paying an employee based on money is has or will receive and not on money it does not obtain.  It would be absurd and uncommercial interpretation if Stratton was paying Mr Webb a portion on what they do not actually get.  To take an extreme example on Mr Webb’s interpretation, if the introducer fee was the same amount as the raw commission plus establishment fee, then Stratton would receive nothing but have to pay Mr Webb 40% of the raw commission plus establishment fee.  This would be uncommercial.”

6. In regard to (a) the intention of Strattons is not a matter to be considered by the Court unless it had been made clear to Mr Webb before he entered into the contract.  In regard to (b) it is the Court’s view that the use of the words “paid by way of gross amount of $650.00 per week less income tax” tells against this argument.  The deduction of income tax is specifically mentioned whereas in the phrase “gross commission” there are no references to deductions.  The argument raised in (c) is certainly businesslike and at first sight could be said to be an absurd and uncommercial interpretation to pay Mr Webb more than Strattons might have received.  But the difficulty for Strattons is that it proffered the contract to Mr Webb and no one has told the Court how the 40% was calculated.  It is possible that 40% was calculated on the basis that this was an appropriate sum to pay an employee taking into account the possibility of clawbacks, the rate of which was completely unknown at the time the contract was entered into.  In other words Strattons might have been prepared to pay this commission to Mr Webb and take the risk on clawbacks rather than pay him a higher commission before deductions of clawbacks.  Looked at in this way the arguments made Strattons in (c) lose most of their weight. 

1. Strattons argue that Mr Webb is estopped from making the claims he does in this proceeding.  This is pleaded in the Amended Statement of Claim as follows:

   “24.It was a term of the Employment Agreement that the respondent must pay the applicant 40% gross commission of all deals settled by the applicant.

   25.Between 23 May 2006 to 12 March 2012, the applicant settled deals to the value of $1,516,195.99.

   26.By reason of the foregoing, the respondent was required to pay the applicant $606,477.58 during the course of the employment pursuant to clause 4 of the Employment Agreement.

   27.During the course of the applicant’s employment with the respondent, the applicant received $427,482.28 in commission, in breach of clause 4 of the Employment Agreement.

   28.In further breach of clause 4 of the Employment Agreement, the respondent deducted $34,569.48 from the commissions owed to the plaintiff during the course of the employment.

   Particulars

   The respondent characterised these deductions as “claw backs” justified on the basis of repayments of deals settled earlier than anticipated.

   29.By reason of the respondent’s breaches of the Employment Agreement, the applicant has suffered damage in the sum of $178,995.30”

2. After hearing evidence it transpires that only five or six payslips were ever given to Mr Webb.  The Court is also satisfied that Mr Webb did object to the manner of the calculation of his remuneration and was told in effect “that he had to wear it” but, in the Court’s view, continued with his objections for sufficient time for the Court to be satisfied that he did not regard the sums received as accurately reflecting the legal relationship between him and the respondent.  The Court makes this finding even though Mr Webb’s evidence in regard to what he intended to do about the shortfall was not impressive.  But although he might have lulled his employer into a false sense of security that any shortfall in payments would not be claimed, this does not amount, in the Court’s view, to subjecting his employer to a detriment.  The respondent says in its final submissions:

   “Mr Webb ought to be estopped from resiling from the interpretation of the contract that both parties assumed.”

   The Court does not accept that Mr Webb did assume that interpretation of the contract. 

3. The respondent cites in favour of its estoppel argument the views expressed by Latham CJ in Grundt v Great Boulder Pty Goldmines Ltd [1937] 59 CLR 641 where his Honour said at [657]:

   “Where a person obtains advantages by relying upon rights which can exist only upon the basis of an assumed state of facts, he is not permitted thereafter to rely upon other rights in relation to the same person which are inconsistent with the existence of the rights formerly asserted. The relevant principle is that stated by Scrutton L.J. in Verschures Creameries v. Hull and Netherlands Steamship Co.:—"A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction." So, in Thompson v. Palmer, the general principle upon which estoppel in pais is based was expressed by Dixon J. in the following words:—"The object of estoppel in pais is to prevent an unjust departure by one person from an assumption by another as the basis of some act or omission which, unless the assumption be adhered to, would operate to that other's detriment. Whether a departure by a party from the assumption should be considered unjust and inadmissible depends on the part taken by him in occasioning its adoption by the other party. He may be required to abide by the assumption because it formed the conventional basis upon which the parties entered into contractual or other mutual relations, such as bailment; or because he has exercised against the other party rights which would exist only if the assumption were correct."

   In the present case all the requirements of an effective estoppel are satisfied. The tributers had offered to cease mining but continued mining after the question had been raised as to whether they were or were not mining outside their ground. They were induced to act to their detriment (by doing work and spending money) as they would not have otherwise done, by the facts that the company acted so as to show that it was content to regulate the relations between the tributers and itself upon the basis that the agreement applied in all respects to the ore produced from the western swing. The company continued to provide essential mining facilities (access to the ground, compressed air, &c.) to the tributers, and, as already stated, received and treated the ore mined by the tributers and accounted to the tributers for half the proceeds of the ore. As soon as the company changed its attitude, and gave notice of cancellation of the agreement, the tributers took legal proceedings for the purpose of ascertaining their strict rights.”

4. In Amalgamated Investment & Property Co Ltd (In Liquidation) v Texas Commerce International Bank Ltd (CA) [1982] 1QB 84 the English Court of Appeal Lord Denning MR, Eveleigh and Brandon LJJ cited Grundt with approval.  At [121] Lord Denning opined:

   To use the phrase of Latham C.J. and Dixon J. in the Australian
   P High Court in Grundt v. Great Boulder Proprietary Gold Mines Ltd. (1937) 59 C.L.R. 641, 657, 677, the parties by their course of dealing adopted a " conventional basis" for the governance of the relations between them, and are bound by it. I care not whether this is put as an agreed variation of the contract or as a species of estoppel. They are bound by the " conventional basis " on which they conducted their affairs. The reason is because it would be altogether unjust to allow either party to insist on the strict interpretation of the original terms of the contract— when it would be inequitable to do so, having regard to dealings which have taken place between the parties.

   The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone through them all in this judgment. It has evolved during the last 150 years in a sequence of separate developments: proprietary estoppel, estoppel by representation of fact, estoppel by acquiescence, and promissory estoppel. At the same time it has been sought to be limited by a series of maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a cause of action, estoppel cannot do away with the need for consideration, and so forth. All these can now be seen to merge into one general principle shorn of limitations. When the parties to a transaction proceed on the basis of an underlying assumption—either of fact or of law—whether due to misrepresentation or mistake makes no difference—on which they have conducted the dealings between them— neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands.”

5. In the Court’s view the dicta in these cases serves only to emphasise the necessity for the mutuality of agreement between the parties that what was happening was correct.  Here the evidence is that Mr Webb did not agree to the clawbacks and in those circumstances I cannot see how a plea of estoppel can prevail even though the respondent paid Mr Webb on that basis for some years.

6. The applicant also argues that his right to payment under the contract is a right given to him by statute and that estoppel will not prevail against the law; The United Grocers, Tea  and Diary Produce Employees’ Union of Victoria v Linaker [1916] 22 CLR 176 at [179]. He argues that s.542 of the Act which is in the following form:

   “542(1)For the purposes of this Part, a safety net contractual entitlement of a national system employer or a national system employee, as in force from time to time, also has effect as an entitlement of the employer or employee under this Act.

   542(2)The entitlement has effect under this Act subject to any modifications, by a law of the Commonwealth (including this Act or a fair work instrument), a State or a Territory, of the safety net contractual entitlement.”

   has the effect of making his remuneration an entitlement under the Act. “a safety net contractual entitlement is defined in s.12 as meaning:

   “an entitlement under a contract between an employee and and an employer that relates to any of the subject matters described in

   (a)…

   (b) sub-section 139(1) which deals with modern awards. 

   Section 139(1) sets out the terms which may be included within a modern award.  139(1)(a) includes:

   “Minimum wages (including wage rates for  junior employees, employees with a disability and employees to whom training arrangements apply), and:

   (i)”skill-based classifications and career structures; and

   (ii)incentive-based payments, piece rates and bonuses.”

   and 139(1)(i) allows the inclusion of superannuation. 

   Although it is not necessary to make a finding on this argument because for the reasons expressed I do not believe an estoppel came into effect I would note that there is much force in this argument particularly in relation to unpaid superannuation on the unpaid clawback amounts.

7. The effect of this reasoning is that the Court is satisfied that Mr Webb was entitled to have been paid 40% of the gross commission received by Strattons (including the establishment fees) less the introduction fees but not less the clawbacks.  Mr Webb would also be entitled to superannuation unpaid on this amount at 9%.  He would be entitled to interest on the unpaid moneys and the unpaid superannuation.  The failure to pay the full amount of his entitlements constituted a breach of  his employment contract.  The failure to pay additional superannuation constituted breaches of the WR and FWA as set out in clause 21 of the Amended Statement of Claim.

   Whilst the parties have provided the Court with some calculations based upon the conceded underpayments these do not cover the findings in relation to the breach of the employment contract or additional superannuation moneys payable.  In those circumstances the Court requires the parties to bring in Short Minutes of Order giving effect to these reasons.  Because there is still outstanding the question of penalties those Short Minutes should commence with declarations concerning the conceded and found contraventions before orders for payment of the agreed and found sums plus interest.  The Short Minutes should provide a timetable for the parties to proceed towards the hearing on penalty.  The Short Minutes should be provided to the Court by 4 February 2014.  In the event that the parties are unable to agree the Short Minutes or the timetable (other than the penalty hearing date) the matter should be restored before me for further directions.  If the Short Minutes and the timetable are agreed the parties can provide my associate with suggested hearing dates and an agreed date will be notified to them.  Any Short Minutes should contain a provision that the applicant’s written submissions and authorities on penalty be provided to the Court fourteen days prior to the hearing and the respondent’s submissions seven days prior to hearing.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of Judge Raphael J

Date:  20 December 2013