Kiran and TCFUA v Leading Spinning Pty Ltd
[1996] IRCA 520
•17 October 1996
DECISION NO:520/96
CATCHWORDS
INDUSTRIAL LAW - UNLAWFUL TERMINATION - VALID REASON - OPERATIONAL REQUIREMENTS - REDUNDANCY - whether UNION MEMBERSHIP a reason for selection - PROCEDURAL FAIRNESS -OPPORTUNITY TO RESPOND to selection in group redundancy.
Industrial Relations Act 1988 (Cth) ss170DC, 170DE, 170EA, 170EE
Fryar v System Services Pty Ltd (1996) 137 ALR 321;
Kenefick and Ors. v Australian Submarine Corporation Pty Ltd (No.1) (1995) 62 IR 107; (No. 2) (1996) 65 IR 366;
Byrne v Australian Airlines Ltd (1995) 131 ALR 422
Victoria v The Commonwealth (1996) 138 ALR 129
Puccio v The Catholic Education Office (IRCA, unreported, von Doussa J,17 May 1996).
APESMA v Deniliquin Council (1995) 58 IR 275
Quality Bakers of Australia Ltd v John Goulding & Anor. (1995) 60 IR 327
Sinclair v Anthony Smith & Associates Pty Ltd (IRCA, unreported, von Doussa J, 1 December 1995).
Amalgamated Metal Workers, Shipwrights Union of Western Australia and Operative Painters and Decorators Union of Australia, Western Australian Union of Workers v Australian Ship Building Industry (Western Australian) Pty Limited (1987) 67 WAIG 733;
Bostik (Australia) Pty Ltd v Gorgevski (No. 1) (1992) 36 FCR 20
KIRAN & TCFUA v LEADING SPINNING PTY LTD
VI96/1533
Before: MURPHY JR
Place: MELBOURNE
Dates of hearing: 4, 15 & 16 OCTOBER 1996
Date of judgment: 17 OCTOBER 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI96/1533
BETWEEN:
MEHMET KIRAN
Applicant
TEXTILE CLOTHING & FOOTWEAR UNION OF AUSTRALIA
Applicant
AND
LEADING SPINNING PTY LTD
Respondent
BEFORE: MURPHY JR
PLACE: MELBOURNE
DATE: 17 OCTOBER 1996
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The application is 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
VI96/1533
BETWEEN:
MEHMET KIRAN
Applicant
TEXTILE CLOTHING & FOOTWEAR UNION OF AUSTRALIA
Applicant
AND
LEADING SPINNING PTY LTD
Respondent
BEFORE: MURPHY JR
PLACE: MELBOURNE
DATE: 17 OCTOBER 1996
REASONS FOR DECISION
Delivered ex tempore - revised from the transcript
The first applicant seeks a remedy under s170EA of the Industrial Relations Act (“the Act”) following the termination of his employment, on the grounds of redundancy, on 28 March 1996. The central issues in the proceedings were the validity of the respondent's decision to retrench the applicant, whether he had been accorded procedural fairness, and whether he had been targeted because of union activities.
Background.
The respondent operates at two sites, one at Tullamarine and the other at Campbellfield. Events in the proceeding related generally to Campbellfield. In the period up to March 1996 the textile industry, and the respondent, were suffering a downturn. Stocks were up, orders down, and imports were flooding the market. The respondent had reduced the amount of overtime. The respondent operated a number of machines known as MJS. In March a number of those machines were not in use, but the respondent formed the view that more machines would need to be shut down at both its sites. Also at this time the respondent had some industrial unrest at the Tullamarine site in relation to underpayment of wages and occupational health and safety.
On 8 March Mr Sukri, the General Manager Production of the respondent, advised Mr Frank Caputo, an organiser for the second applicant (“the union”), about implementing redundancies at the respondent. In fact some employees at the Tullamarine site were given notices of termination that day. That retrenchment became the subject of industrial action that was brought before the Australian Industrial Relations Commission (“the Commission”) in the context of the matters already before the Commission.
The respondent agreed to withdraw the notices of termination for the Tullamarine employees. On 15 March Mr Sukri wrote to Mr Caputo referring to earlier discussions with him on 8 March, and the proceedings in the Commission on 13 March, and confirmed that the respondent wished to hold discussions with the union pursuant to cls 47 and 48 of the Award in relation to pending redundancies (Exhibit R1).
On 18 March Mr Caputo wrote back (Exhibit A1), asking the respondent to meet the requirements laid out in Clause 47(b)(iii), and Clause 48(a)(iii). These paragraphs refer to detailing the reasons for the proposed changes, the number and categories of employees involved, and the periods over which the redundancies will be effected. On 19 and 20 March Mr Sukri wrote to the union detailing the reasons for the redundancies, setting out the categories of employees involved, and the names of ten employees at Campbellfield and a similar number at Tullamarine (Exhibits R2 and R3).
Mr Sukri gave evidence that he told the union about the criteria for the selection of the employees to be retrenched after he sent the letter of 15 March. On 21 March the respondent posted a notice at its Campbellfield site advising employees that the company was forced to reduce the number of workers at the site (Exhibit R6). It stated:
“Final confirmation will be notified after 27 March. Redundancy packages will be offered to those workers affected and they will be notified individually.”
On 27 March Mr Sukri was overseas, but a meeting took place at the Tullamarine site to discuss the redundancies at both sites. Present were Mr Caputo, another union organiser Ms O'Neill, some shop stewards, Mr Seng, the owner of the respondent, Mr Nguyen the Logistics Manager, and Mr Craven a senior Human Resources Counsellor with an employer organisation. At that meeting a number of industrial issues were canvassed including the redundancies at both sites. Mr Craven gave evidence that the union expressed concern as to the number of redundancies. On behalf of the respondent he reiterated the economic issues facing the respondent that had already been set out in the letters to the union on 19 and 20 March.
At that stage the individual employees selected for retrenchment had not been notified. It was envisaged that the individuals would be notified soon after. A number of casual employees were retrenched at this time. On 28 March each of the ten individuals on the list of 20 March (Exhibit R4) were retrenched by the respondent. The applicant was called into the office and handed a letter advising him that he had been selected for retrenchment (Exhibit R7). He was paid his entitlement and left. On 29 March he issued these proceedings. On 1 April the industrial dispute between the respondent and the union was before the Commission for report back. The transcript (Exhibit R8) revealed that since the matter was last before the Commission there had been:
“....quite a substantial amount of discussion, Commissioner, about these redundancies, and the union put forward a number of views regarding whether it was possible to save any of these positions. I think it would be fair to say, Commissioner, that we exhausted those discussions on that day but the union would like to reserve its rights in relation to those redundancy matters.”
Mr Craven, on behalf of the respondent, said:
“The redundancy matter is that there were certainly substantial discussions between the parties on those. A number of the redundancies have in fact taken place.”
The selection of the applicant and the selection process.
The applicant commenced work with the respondent as a casual on 3 May 1995. He became full time on 27 May and was classified as a factory hand. He first worked day shift. He then worked night shift but about three months later was transferred to day shift. In March he was working as a machine cleaner in the MJS machine section.
At that time the respondent had three shifts working MJS machines. On each shift there were machine operators for those machines and then also employees for downstream processes such as drawing, carding, blow room and packing. When it was decided to close down the MJS section it was decided that the respondent had to retrench four employees from the MJS section, one blow room worker, one from the carding section, two from the drawing section and two factory hands.
The respondent decided that numbers would be reduced across the three shifts within each of these categories. To select the individual employees the respondent first classed each employee according to length of service. Those with less than one year were all classified together. The criteria that the respondent decided to adopt for the selection of individual employees in the different shifts and sections were the length of service and performance or skills.
Mr Sukri said it was "from performance and attendance and worth for company for the future, the value of each person and the Award". Mr Sukri obtained a report on each employee from his section manager, Mr Jackson Yang, and his production supervisor, Mr Lee. Mr Sukri then made the decision. In relation to the applicant, Mr Sukri was faced with a choice between him and Mr Gasper. Both were factory hands on day shift. One had to be retrenched.
Mr Gasper had about five months service, the applicant ten months. They were treated as having equal seniority. Mr Sukri gave evidence that he formed the view that Mr Gasper was of more value to the respondent:
“Because of performance, flexibility or ability to do the job.”
He said Mr Gasper was:
“Serious in the job and he had “keenness to learn something.”
Mr Yang gave evidence that he gave his "verbal opinion" on all employees at Campbellfield. He was asked about the applicant compared to Mr Gasper. He provided a report based on their ability to work as machine cleaners and the experience of both of them. He said that the applicant was only an average worker. He did not have any “outstanding performance that we would make me say anything good about him”.
Mr Yang in cross examination said he did not make any comparison of the two. He said he reported on the length of time that each had been doing machine cleaning. Mr Gasper had been doing that job longer than the applicant although the applicant had an earlier position with the respondent. Mr Yang said that Mr Sukri took the decision. Mr Lee, the Production Supervisor gave evidence that he was asked by Mr Sukri about the performance of the workers doing machine cleaning. He advised him that the applicant tended to speak to other workers and did concentrate less than Mr Gasper who “concentrated hard on his work, was hardworking and more serious.”
In cross-examination he denied that Mr Gasper was less skilled then the applicant or could not do as much as him. He admitted that at one stage he had raised with Mr Yang the fact that the applicant would speak to other employees at the workplace. He admitted he had never counselled the applicant in relation to it. He used body language at times to register his disapproval.
Discussion of the selection criteria.
Mr Sukri said that he advised the union how he intended to go about selecting the proposed retrenches. Mr Craven said that the union was advised as to how the employees had been selected in the meeting of 27 March. He said that no one suggested at that meeting that the process was unfair. Mr Caputo said that the question of redundancies at Campbellfield was not the subject of any elaborate discussion with the union.
He said that the union has a "kind of agreement" as to what it expects in a redundancy. This is that first the company is to ask for volunteers. He said that this was agreed to at Tullamarine but with the proviso that the respondent would reserve the right to maintain its skill base. Further, the union reserved its position to take proceedings for unfair dismissal in the event that any employee came to it and put forward a meritorious case that he or she should not have been selected.
Mr Caputo said that he had an agreement with Mr Sukri that whatever arrangement the union was able to negotiate with the respondent at Tullamarine would also apply at Campbellfield. He said the union put forward that the “last in first off” principle should apply at Tullamarine. He said that the respondent did not agree 100 per cent and stated that if there were not enough volunteers it reserved the right to take into account matters such as warnings, attitude and skill.
In cross-examination, Mr Caputo agreed that the union was told about the criteria to be applied. Mr Craven’s evidence was consistent with that of Mr Caputo. He maintained that there was no dissent from the method of selection discussed at the meeting of 27 March. He could not recall the question of a request for volunteers being raised. He agreed that at a subsequent redundancy the respondent agreed to seek volunteers from its workforce. He maintained that the respondent’s approach here of using length of service and skills as criteria was not unusual and in accord with industry practice. Mr Caputo's evidence of an agreement that the arrangements at Tullamarine were to apply at Campbellfield was not put to Mr Sukri. It is inconsistent with Mr Sukri's evidence and Mr Craven's evidence and on that point I prefer the evidence of the respondent.
The applicant's case.
Counsel for the applicant did not seriously challenge the economic pressure on the respondent that led it to this round of redundancies. His challenge was to the selection process, the actual choice of the applicant and the lack of consultation with the applicant. Here it is important to note that at all times the union and the respondent were involved in proceedings before the Commission.
At Tullamarine the union was able to force the respondent to withdraw termination notices because of a failure to comply with award obligations. The respondent then sought to comply with its obligations to discuss with the union the new round of redundancies at both sites. It was acting on advice from Mr Craven. The respondent sought to meet its obligations by its letters of 15, 19 and 20 March, and the meeting of 27 March.
The actual selection criteria were, I am satisfied, raised by Mr Sukri with Mr Caputo in a telephone conversation before the letters of 19 and 20 March. They were also raised in the meeting of 27 March. It is significant that before the Commission on 1 April the union, while reserving its position, did note the substantial amount of discussion. At no stage did the union make a formal application under s170GA of the Act. It follows that I am unable to accept Mr Caputo's version that he had an agreement with Mr Sukri that whatever happened at Tullamarine would also apply at Campbellfield. Further I am unable to accept that there was ever any agreement that volunteers be sought first.
In relation to the actual selection criteria I accept the evidence of Mr Craven that the approach taken by the respondent is in accord with industry practice. While the evidence was manifestly self serving he was a credible witness. Further Mr Caputo did not dissent from the position that in a redundancy the maintenance of an employer’s skill base is an important consideration. A further matter raised was the bundling together of all employees under one years service. This accords with the provisions of the Award which does not provide for severance pay for those employees. Again Mr Craven defended this approach as it allows the employer to select those with the most skills from recent recruits. What the respondent did was not uncommon.
The choice of the applicant.
The applicant sought to impugn his selection for retrenchment on two bases. The first was that he was picked because of his union activities. Mr Caputo gave evidence that the union has had difficulty recruiting members within the respondent, particularly at Campbellfield where it has very few members. The union was involved in a dispute regarding a crib room at the site. The applicant said that he joined the union during 1995 along with two other Turkish speaking employees, Mr Ibrahim and Mr Mustafa. He said that he was involved in interpreting for the respondent when it was raising matters with these two individuals.
He maintained that subsequently the three were separated and subsequently the other two dismissed. The applicant said that the three tried to recruit others to join the union unsuccessfully. He claimed that Mr Yang was against the union. He said however that Mr Yang, "didn't know I was in the union”. Mr Sukri said he knew that there were a few union members at the site but this did not influence his decision when selecting individuals. He said he was not even aware if the applicant was in the union. Mr Yang denied talking to the applicant about who brought the union on to the site. He said that he was not aware if the applicant had any involvement with the union. Further when he discussed the applicant with Mr Sukri they were not interested in any personal involvement. Mr Lee said that he did not know whether the applicant discussed union matters with other workers. Further, neither Mr Jackson nor Mr Sukri discussed the applicants involvement with Mr Mustafa and Mr Ibrahim with him. Mr Lee denied any responsibility for splitting the three up.
The second ground raised by the applicant in relation to his individual choice was that he was just a much better employee than Mr Gasper. He said that he had been there longer, was one of only a handful of employees who spoke English and was able to do a wider range of duties. He said that he had knowledge of computers and had shown a number of newer workers how to do their duties. In contrast, Mr Gasper only spoke broken English, had been employed on only a single task and was unable to do any other task. Mr Lee disputed that the applicant was a better worker than Mr Gasper. He said that the work was simple. He denied instructing the applicant to help other workers. The Court is not in any position to make a finding on this aspect of the matter. I am not running the mill. The applicant is an articulate young man with no shortage of confidence in his own ability. The respondent's witnesses gave evidence that in the selection process they engaged in they preferred Mr Gasper.
On the evidence before me I am not satisfied that the choice could be labelled as capricious or ill motivated. The evidence of the applicant's involvement in the union was slight and knowledge of it was not sheeted home to the respondent. His selection was not motivated by that involvement. His ethnic background was also suggested. Again it was suggested he was separated from the other Turkish speaking workers and then the selection process was impugned because at the end of it the applicant and another Turkish speaking employee were included.
Again, the evidence does not sustain those inferences. Counsel for the applicant was drawing a very long bow. The approach by Mr Sukri of choosing surplus staff by reference to shifts and categories of employees within each of those shifts has a clear logic about it. That process led to a choice between the applicant and Mr Gasper. In that choice, I am satisfied on the evidence the outcome was open: the applicant did not stand out as demanding retention.
Consultation with the applicant.
A key critique of the applicant of the process here was the respondent's lack of consultation with him personally. It was put that this contravened Clause 48 of the Award and destroyed the validity of the decision. By failing to consult, the applicant was denied the opportunity to bid for his job. He was denied the opportunity to be transferred to night shift where there may have been a vacancy. The respondent conceded lack of individual consultation, but said that at most this was only a procedural failure and did not impugn the process as a whole or the validity of its decision.
The applicant admitted that he saw the notice posted at the site on 21 March advising all employees of the possibility of retrenchments. He believed it would not apply to him because he "felt too responsible for a lot of things". He thought he was guaranteed a job. He was shocked when he was called in on 28 March and told he was dismissed.
Did the respondent have a valid reason to terminate the applicant's employment?
The respondent carries the onus of proof that it had a valid reason to terminate the applicant's employment. In Kenefick and Ors. v Australian Submarine Corporation Pty Ltd (No.1) (1995) 62 IR 107 at 116, Wilcox CJ, said:
“(T)here must be a causal relationship between the reason and the termination. ...(it) must be a logical response to the employer’s operational requirements.... The subsection was designed to inhibit capricious terminations, not to put the Court in the employer’s managerial chair.”
The word, “valid”, can be used in a number of senses including, sound, defensible, well founded or justifiable.
Here there was no real dispute that the redundancies were a logical response to the respondent's operational difficulties. The union tried to reduce the numbers, but as Mr Craven said:
“It appeared that the union accepted that the redundancies had to occur.”
No order was sought from the Commission to stop the redundancies. It was put that the respondent's decision lacked validity because it was in breach of the Award. The Award provides that termination of employment “shall not be harsh, unjust or unreasonable”. It was argued that the selection criteria applied, the choice of the applicant on the basis of his performance, the failure to give him the opportunity to respond to the basis of the choice, and the failure to consult were such that the reason was not valid because it was in contravention of this Award provision, and in breach of s170DC as well.
Before considering this submission, in Byrne v Australian Airlines Ltd (1995) 131 ALR 422, the High Court considered an Award provision similar to Clause 22 (vii). It is a standard clause. At 463 McHugh and Gummow JJ endorsed this comment from Bostik (Australia) Pty Ltd v Gorgevski (No. 1) (1992) 36 FCR 20 at 28, about the phrase “harsh, unjust or unreasonable”.
“These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct.”
At 462 the High Court also noted that “(T)he distinction between procedure and substance is elusive.”
Since Byrne (above), the court in Puccio v The Catholic Education Office (IRCA, unreported, von Doussa, 17 May 1996) has confirmed, following Byrne, that the focus should be on the substance of the decision rather than on any procedural failings.
In Victoria v the Commonwealth (1996) 138 ALR 129 at 171, the High Court struck down s170DE(2) of the Act as “beyond the power of the Commonwealth Parliament because it does not implement the terms of the Convention”. The High Court noted that the terms “harsh, unjust or unreasonable” are not merely a synonym for “valid” It said that the harsh, unjust or unreasonable test is not a subset of grounds that are not valid. It found that s170DE(2), in contrast to s170DE(1) of the Act, went to the overall effect of the termination rather than the reason.
In 1995 the Parliament amended s170DE(2) to include in it the phrase “having regard to all the circumstances of the case.” Those amendments also inserted into s170EE(1) of the Act, the following phrase in relation to the discretion of the Court to award a remedy: “If the court considers it appropriate in all the circumstances of the case.”
Parliamentary materials have been referred to in a number of decisions in this court, including Fryar v System Services Pty Ltd (1996) 137 ALR 321, at 328-9, and APESMA v Deniliquin Council (1995) 58 IR 275. In the second reading speech to the 1995 amendments to the Act, (Hansard, House of Representatives, 30 August 1995, at p821) the Minister said:
“The fourth change is of particular importance. The Act will be amended to make it clear that a breach of an employer's obligations will not automatically lead to a remedy. It has been suggested that remedies are given for breaches based only on procedural grounds without regard to the overall circumstances. Such a situation should not exist. For example there should not be any guarantee of a remedy where the only defect in the employer's conduct has been some failure to provide procedural fairness and the employee's conduct warrants dismissal.
To make it clear that this situation is not intended, the court will be required to consider all the circumstances in deciding whether a remedy of reinstatement or compensation should be granted and, if so, what the remedy should be. In other words, the court will weigh up all the circumstances, and may, even though an employer has not met a statutory requirement, decide that a remedy should not be given to the employee. This approach is consistent with the long standing practice of industrial tribunals.”
In a number of decisions, both before the 1995 amendments and Victoria v The Commonwealth, the court has found the decision to terminate would be in breach of s170DE(2) where there has been a failure to consult or to explore alternatives to termination: Quality Bakers of Australia Ltd v John Goulding & Anor. (1995) 60 IR 327; Sinclair v Anthony Smith & Associates Pty Ltd (IRCA, unreported, von Doussa J, 1 December 1995). I am not aware of any decisions that have sought to impugn the validity of a reason under s170DE(1) by reason of a failure to consult.
Here the failure to directly consult the applicant must be put in its proper context in this workplace. That context is an industrial dispute before the Commission, the discussions with the union, and the general notice to employees on 21 March. Further, the statement on transcript on 1 April that, "the union put forward a number of views regarding whether it was possible to save any of these positions. We exhausted those discussions on that date" is significant. This is consistent with the respondent's position that, given it had already retrenched casual employees, it had no operational alternative but to proceed with the retrenchment.
When the decision to retrench the ten employees, including the applicant is considered in this industrial context, the failure to consult the applicant is more a matter of procedure rather than substance. It is a matter that goes not to the validity of the decision, but to the effect of that decision on him. It is a matter squarely addressed in both Byrne (above) and Victoria v The Commonwealth (above). It is a matter envisaged by the second reading speech for the 1995 amendments to the Act.
Similar principles apply to the challenge to both the selection criteria, and the selection of the applicant. The criteria were the subject of consultation. It could thus always be envisaged that a skill or performance based method would cause grievance to those passed over. The industrial parties chose not to address this at the time. They could have done so; the Commission could have done so. To some extent they did later in other redundancies by seeking volunteers first. That was not done here, but that does not impugn the process. The process adopted, was, I am satisfied, reasoned and applied fairly.
The applicant was not denied the opportunity to respond to any allegations because there were none made against him. He was denied the opportunity to respond to his choice over that of Mr Gasper. Unlike Kenefick v Australian Submarine Corporation Pty Ltd (No. 2)(1996) 65 IR 366, there was no list of volunteers and no list of "concerns" that was to form the basis of the selection. In a group redundancy it is difficult to reconcile the requirements of s170DC of the Act that an employee have the opportunity to respond to allegations on matters that led to his or her selection for termination, with the reservation by management in such a redundancy selection process that it has the right to make the selection.
Here Mr Caputo conceded that the respondent had that right. Mr Craven said that such a process was not uncommon at the time and is becoming increasingly common in industry as employers seek to maintain their skills base. Any process that involves subjective assessment must leave a margin for managerial prerogative. This is the position here. The selection of Mr Gasper over the applicant was one, within the process adopted, of managerial judgment.
The matter may be seen as one of an evidentiary burden. The applicant has not satisfied me that the choice of Mr Gasper was unreasonable or capricious. Support for this approach can be found within s170DC(b) of the Act, which envisages that in some circumstances it would be unreasonable to give an employee an opportunity to respond to allegations. In Amalgamated Metal Workers, Shipwrights Union of Western Australia and Operative Painters and Decorators Union of Australia, Western Australian Union of Workers v Australian Ship Building Industry (Western Australian) Pty Limited (1987) 67 WAIG 733, it was held that the burden that the selection of an individual was unfair was imposed on the person who alleged that he or she had been unfairly selected. This decision is cited with approval by Beazley J in Quality Bakers (above).
Here the process adopted by the respondent left a margin of choice to the respondent. Given that process, the failure to put to the applicant the reasons for his choice was one of process only. It did not impugn the validity of the decision to terminate. If s170DC required that it be done then I would not exercise my discretion in relation to a remedy under s170EE(2) because the failure to comply with the Act was not substantive. It follows that I am satisfied there has been no breach of s170DE(1) or s170DC of the Act and that the application must be dismissed.
I certify that this and the preceding sixteen (16) pages
are a true copy of the reasons for decision of
Judicial Registrar Murphy as recorded in the transcript
and revised by the Judicial Registrar.
Associate: KAREN HALSE
Dated: 17 October 1996
APPEARANCES
Counsel appearing for the applicant: MR N KENYON Solicitors for the applicant: MAURICE BLACKBURN & CO. Counsel appearing for the respondent: MR W ALSTERGREN Solicitors for the respondent: PHILLIPS FOX Dates of Hearing: 4, 15 & 16 OCTOBER 1996 Date of Judgment: 17 OCTOBER 1996
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