Leanne May Willcocks v Makfren Holdings Pty Ltd t/as Circuit Technology

[1995] IRCA 392

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - whether applicant has available an ADEQUATE ALTERNATIVE REMEDY in respect of the termination under W.A. State legislation - Industrial Relations Act 1988 (Cth) s 170EB - Industrial Relations Act 1979 (W.A.) ss 7, 7C, 7G, 23, 23A, 23AA and 29 - Industrial Legislation Amendment Act 1995 (W.A.)

Industrial Legislation Amendment Act 1995 (W.A.) sub-ss 41(2), 42(2), 42(3)
Industrial Relations Act 1988 (Cth); ss 170CA, 170DB, 170EA 170EB, 170EE, 347; sub-ss 170EA(1), 170EA(2), 170EA(3), 466(1); para 412(1)(a); Schedule 11 Articles 7 and 9
Industrial Relations Act 1979 (W.A.) Pt II Div IV, Pt VIA Div III; s 7C, 7G, 23AA, 23A, 26, 29, 42, 44; sub-ss 7(1), 7(1a), 23(1), 23AA(1), 29(2), 29(3); para 23(3)(h); sub-para 29(1)(b)(i)
Social Security Act 1991 (Cth)
Workplace Agreements Act 1993 (W.A.)

The Constitution s 51(xxix)

Fryar v. Systems Services Pty. Ltd. (1994) 125 A.L.R. 592
Fryar v. Systems Services Pty. Ltd. (1995) 130 A.L.R. 168
Liddell v. Lembke (1994) 127 A.L.R. 342
Grout v. Gunnedah Shire Council (1994) 125 A.L.R. 355
Coles Myer Ltd v. Coppin (1993) 11 W.A.R. 20
Wiley v. Carbide International Pty. Ltd.  (1994) 55 I.R. 356

LEANNE MAY WILLCOCKS v. MAKFREN HOLDINGS PTY LTD t/as Circuit Technology
WI 1329 of 1995

CORAM:     LEE J.
PLACE:     PERTH
DATE: 22 AUGUST 1995

IN THE INDUSTRIAL RELATIONS     )
COURT OF AUSTRALIA             )
WESTERN AUSTRALIA              )
DISTRICT REGISTRY              )    NO. WI 1329 OF 1995

B E T W E E N:  LEANNE MAY WILLCOCKS

Applicant

and

MAKFREN HOLDINGS PTY LTD t/as Circuit Technology

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:  LEE J.

DATE OF ORDER:      22 AUGUST 1995

WHERE MADE:         PERTH

THE COURT DECLARES THAT:

It is not satisfied for the purposes of s.170EB of the Industrial Relations Act 1988 that in respect of the termination of the applicant's employment there is available to the applicant under the Industrial Relations Act 1979 (W.A.), as amended, "an adequate alternative remedy under existing machinery that satisfies the requirements of the Termination of Employment Convention."

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

IN THE INDUSTRIAL RELATIONS  )   
COURT OF AUSTRALIA               )
WESTERN AUSTRALIA                 )
DISTRICT REGISTRY                 )     NO. WI 1329 OF 1995

B E T W E E N:  LEANNE MAY WILLCOCKS

Applicant

and

MAKFREN HOLDINGS PTY LTD t/as Circuit Technology

Respondent

CORAM:     LEE J.
DATE :     22 AUGUST 1995
PLACE:     PERTH

REASONS FOR JUDGMENT

This is an application under s.170EA of the Industrial Relations Act 1988 ("the Act") in which the applicant ("Ms Willcocks") has applied to the Court for a remedy in respect of the termination of her employment. A trade union ("the Union") made the application on Ms Willcocks' behalf pursuant to sub-s.170EA(2) of the Act. According to the application Ms Willcocks' employment was terminated by her employer ("Makfren") on 16 September 1994. The application was filed on the 3 April 1995.

Pursuant to sub-s.170EA(3) of the Act an application under s.170EA must be made within 14 days after the employee receives written notice of the termination or within such further period as the Court allows. The application states that written notice of termination was not given to Ms Willcocks. A notice in writing dated 16 September 1994 addressed to the Department of Social Security was provided by Makfren on a printed form prepared under the Social Security Act 1991 (Cth) entitled "Employment Separation Certificate". Ms Willcocks has applied to the Court pursuant to s.170EA (3) of the Act for extension of the period within which the application may be filed. To this point no order extending time has been made by the Court. A statement of claim was filed with the application in which Ms Willcocks also seeks to rely on the causes of action of breach of contract and defamation. Ms Willcocks seeks an order that she be reinstated in her employment.

By motion filed 9 June 1995 Makfren sought an order that the Court decline to consider or determine Ms Willcocks' application on the ground that there is available to Ms Willcocks "an adequate alternative remedy in respect of the termination, pursuant to s.170EB of the Act". On 15 June 1995 a Registrar directed that the "matter be referred to a Judge for determination of the question of alternative adequate remedy". I have assumed that the direction by the Registrar is an order made pursuant to O.29 r.2(a) of the Industrial Relations Court Rules and that the power exercised by the Registrar is a power of the Court delegated to the Registrar by direction of the Court made pursuant to section of sub-s.466(1) of the Act.

Section 170EB of the Act provides as follows:

"170EB. The Court must decline to consider or determine an application under section 170EA if satisfied that there is available to the employee by or on whose behalf the application was made an adequate alternative remedy, in respect of the termination, under existing machinery that satisfies the requirements of the Termination of Employment Convention".

In Wiley v. Carbide International Pty Ltd (1994) 55 IR 356, it was submitted to the Court by the respondent that under the Industrial Relations Act 1979 (WA) ("the State Act") there was available to the employee in that case such an adequate alternative remedy. Keely J. held that the provisions of the State Act which allowed a claim of harsh, oppressive or unfair dismissal from employment to be referred to the Western Australian Industrial Relations Commission ("the State Commission") did not offer an adequate alternative remedy and, therefore, s.170EB of the Act did not apply to the case then before the Court. His Honour held that the absence of any power in the State Commission to order, at the conclusion of the hearing of a claim by an employee, the payment of compensation by the employer to the employee meant that the remedy available under the State Act was not an adequate alternative remedy when compared with the remedy available under s.170EE of the Act.

Subsequent to that decision the State Parliament amended the State Act. Makfren contends that the State Act as amended provides Ms Willcocks with an adequate alternative remedy for the purposes of s.170EB of the Act.

The State Act was amended by the Industrial Legislation Amendment Act 1995 (W.A.) ("the Amending State Act"). The amendments came into effect on 9 May 1995. The relevant provisions of the State Act now read as follows:

"29 (1) An industrial matter may be referred to the Commission -

(a)   in any case, by -

(i)an employer with a sufficient interest in the industrial matter;

(ii)an organization in which persons to whom the industrial matter relates are eligible to be enrolled as members or an association that represents such an organization; or

(iii)the Minister;

and

(b)in the case of a claim by an employee -

(i)that he has been harshly, oppressively or unfairly dismissed from his employment; or

(ii)that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract or service,

by the employee.

(1a) ...

(2)Subject to subsection (3), a referral by an employee under subsection (1)(b)(i) cannot be made more than 28 days after the day on which the employee's employment terminated.

(3)The Commission may, on the application of the employee, extend the time within which a referral may be made by an employee under subsection (1)(b)(i) if the Commission is satisfied that -

(a)the dismissal is, at the time of the application under this subsection, the subject of an application under section 170EA of the Commonwealth Act; and

(b)the extension of time is necessary to ensure a remedy in respect of the dismissal is available under this Act.

(4)The Commission may make an order under subsection (3) although an application for the making of the order was not made until after the expiration of 28 days after the day on which the relevant employment was terminated."

The term "industrial matter" is defined in sub-s.7(1) of the State Act as follows:

"7(1) ....

'industrial matter' means, subject to section 7C, any matter affecting or relating to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter relating to -

(a)  ...

(b)the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms and conditions of employment including conditions which are to take effect after the termination of employment;

(c)  ...".

The Amending State Act also inserted a new sub-s.7(1a) to make clear the intended scope of that definition, as follows:

"(1a) A matter relating to -

(a)the dismissal of an employee by an employer; or

(b)the refusal or failure of an employer to allow an employee a benefit under his contract of service,

is and remains an industrial matter for the purposes of this Act even though their relationship as employee and employer has ended."

The apparent purpose of sub-s.7(1a) was to expand the jurisdiction of the State Commission defined by the Western Australian Industrial Appeal Court in Coles Myer Ltd v. Coppin (1993) 11 WAR 20. In Coles Myer it was held that the jurisdiction of the State Commission was conditioned by the definition of an "industrial matter" which did not extend beyond an existing employer/employee relationship.  Therefore, in the absence of a claim for the reinstatement of a dismissed employee the State Commission did not have jurisdiction to deal with matters arising under a terminated contract of employment.

Section 7C of the State Act excludes from the definition of "industrial matter" a matter that is part of the relationship between an employer and an employee under a "workplace agreement" that is in force under the Workplace Agreements Act 1993 (W.A.).

Subject to the terms of the workplace agreement in respect of a claim of harsh, oppressive or unfair dismissal arising under such an agreement, s.7G of the State Act provides the State Commission with a jurisdiction in respect of such a claim that is analogous to the jurisdiction provided in s.29.

Section 7G reads as follows:

"7G (1) Where -

(a)a person who was a party to a workplace agreement as an employee claims to have been harshly, oppressively or unfairly dismissed from employment in breach the provision implied in the agreement by s.18 of the Workplace Agreements Act 1993; and

(b)the workplace agreement provides for referral of such claims to the Commission under this section,

the person dismissed may, within the time allowed by section 29(2), refer the claim to the Commission for determination

(2)The Commission is to enquire into and deal with any claim referred under subsection (1) as if it were an industrial matter referred to it under section 29(1)(b)(i)."

As amended by the amending State Act the State Act provides that an industrial matter involving a claim of harsh, oppressive or unfair dismissal is to be dealt with as follows:

"23 (1)Subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter.

(2)   ...

(3)The Commission in the exercise of the jurisdiction conferred on it by this Part shall not -

(a) ...

(b)  ...

(c)  ...

(d)  ...

(e)  ...

(f)  ...

(g)  ...

(h)on a claim of harsh, oppressive or unfair dismissal make any order except an order that is authorized by section 23A."

Sections 23AA and 23A of the State Act provide :

"23AA (1)On a claim of harsh, oppressive or unfair dismissal, the onus is on the employer to show that there is a ground or are grounds on which the Commission could find that the dismissal was justified.

(2)If -

(a)the employer does not show that there is a ground or are grounds on which the Commission could find that the dismissal was justified; or

(b)the employee establishes that, whether or not it was justified, the dismissal was harsh, oppressive or unfair,

the claim is taken to have been established.

(3)For the purposes of this section, a dismissal is justified if there was a valid reason, or were valid reasons, connected with the employee's capacity or conduct, or based on the operational requirements of the undertaking, establishment or service, for the dismissal.

23A (1)On a claim of harsh, oppressive or unfair dismissal, the Commission may -

(a)order the payment to the claimant of any amount to which the claimant is entitled;

(b)order the employer to reinstate or re-employ a claimant who has been harshly, oppressively or unfairly dismissed;

(ba)subject to the subsections (1a) and (4), order the employer to pay compensation to the claimant for loss or injury caused by the dismissal; and

(c)make any ancillary or incidental order that the Commission thinks necessary for giving effect to any order made under this subsection.

(1a)The Commission is not to make an order under subsection (1)(ba) unless it is satisfied that reinstatement or re-employment of the claimant is impracticable.

(2)An order under subsection (1) may require that it be complied with within a specified time.

(3)If an employer fails to comply with an order under subsection (1) (b) the Commission may, upon further application, revoke that order and, subject to subsection (4), make an order for the payment of compensation for loss or injury caused by the dismissal.

(4)The amount ordered to be paid under subsection (1) (ba) or (3) is not to exceed 6 months' remuneration of the claimant, and for the purposes of this subsection the Commission may calculate the amount on the basis of an average rate received during any relevant period of employment."

Sub-sections 41(2) and 42(2), (3) of the Amending State Act provided the following transitional provisions:

"41 (2)Section 23AA of the (State) Act as inserted by this section applies to and in relation to -

(a)any claim made under the (State) Act after the coming into operation of this section; and

(b)any claim that was made under the (State) Act before the coming into operation of this section and has not been heard and determined under the (State) Act.

42 (2)Section 23A of the (State) Act as amended by this section applies to and in relation to -

(a)any claim made under the (State) Act after the coming into operation of this section; and

(b)any claim that was made under the (State) Act before the coming into operation of this section and has not been heard and determined under the (State) Act.

(3)Notwithstanding section 29(2) of the (State) Act, a referral by any employee in respect of a dismissal -

(a)that occurred before the coming into operation of this section; and

(b)that is, on the coming into operation of this section, the subject of an application under section 170EA of the Industrial Relations Act 1988 of the Commonwealth that has not been determined under that Act,

may be made under section 29 (1)(b)(i) of the principal Act not later than 28 days after the coming into operation of this section."

Pursuant to the provisions of the State Act set out above an "industrial matter" may be referred to the State Commission by an organization of which the employee to whom the industrial matter relates is eligible to be enrolled as a member. As defined in sub-s.7(1) of the State Act an organization is one that is registered under Division IV of Part II of the State Act. No time limit applies for the reference of such an industrial matter to the State Commission by an organisation.

As noted earlier a claim of harsh, oppressive or unfair dismissal from employment under a workplace agreement is not an industrial matter as defined in the State Act and, therefore, such a claim cannot be referred to the State Commission by an organization. It is not suggested that Ms Willcocks' employment with Makfren was governed by a workplace agreement and, therefore, it may be assumed that the claim of harsh, oppressive or unfair dismissal involves an "industrial matter".

It appears that at all material times Ms Willcocks has been entitled to be enrolled as a member of the Australian Electrical Electronic Foundry and Engineering Union - Western Australian Branch, ("the State Union"), an organization registered under the State Act. Therefore, the industrial matter concerning the claim by Ms Willcocks of harsh, oppressive or unfair dismissal may be referred to the State Commission by that organization without regard to the time limit set out in sub-s.29(2) of the State act.

The State Union applied to the State Commission on 22 September 1995 and requested that a compulsory conference be convened pursuant to s.44 of the State Act in respect of the industrial matter that arose upon the dismissal of Ms Willcocks. The application was discontinued on 5 October 1994. On 12 October 1994 notice of an application for an order pursuant to s.29 of the State Act was filed in the State Commission. That application constituted a reference to the State Commission of an industrial matter by the employee pursuant to sub-para.29(1)(b)(i) of the State Act. That application was discontinued on 21 February 1995.

In its terms s.170EB of the Act is not expressed as a limitation of the jurisdiction of the Court. Pursuant to para.412(1)(a) of the Act the Court has jurisdiction in respect of matters arising under the Act in relation to which applications may be made to the Court under the Act. Under sub-s.170EA(1) of the Act an employee may apply to the Court for a remedy in respect of the termination of the employee's employment. The terms in which s.170EB is expressed suggests that the Court is to decline to exercise the jurisdiction of the Court if at any time in a proceeding commenced under s.170EA the Court is satisfied by facts established in the proceeding that an adequate alternative remedy is available to the employee "under existing machinery that satisfies the requirements of the Termination of Employment Convention".

Counsel for Ms Willcocks submitted that it could not be said that a remedy, whether adequate or otherwise, was available to Ms Willcocks if the claim could not be referred to the State Commission unless the State Commission exercised the discretion provided under sub-s.29(3) of the State Act to extend the time within which such a industrial matter may be so referred. If the State Union is prepared to refer the matter to the State Commission such an argument could not arise. There is no evidence that the State Union is either able, or willing, to refer the matter to the State Commission on Ms Willcocks' behalf.

Counsel for Ms Willcocks did not submit that pursuant to sub-s.42(3) of the Amending State Act the State Commission had no jurisdiction to deal with a claim in respect of a dismissal that occurred before the coming into operation of that section unless that claim was referred to the State Commission within 28 days after 9 May 1995, the day on which s.42 came into effect.

The application of s.170EB of the Act is dependent upon the Court being satisfied that an adequate alternative remedy is available to the applicant. That determination will turn on the particular facts of each case. (See: Fryar v. Systems Services Pty Ltd (1994) 125 ALR 592 per von Doussa J. at 596). For that reason the relevant time at which the application of s.170EB falls to be considered is when the Court is required to consider the merits of the case before it. (See: Liddell v. Lembke (1994) 127 ALR 342 per Wilcox CJ., Keely J. at 350, 352-3).

In Liddell (pp.351-352) Wilcox CJ. and Keely J. drew attention to the ambiguity presented by the drafting of s.170EB. It was unnecessary, however, for the Court to ascertain the proper construction of the section in that case. In my opinion the construction adopted by Moore J. in  Grout v. Gunnedah Shire Council (1994) 125 ALR 355 at 379 is correct. If the words "remedy ... under existing machinery" refer to the entitlement to commence a proceeding and to seek redress dehors the Act it will follow that the condition in s.170EB that the requirements of the Convention be satisfied applies both to an employee's right to commence a proceeding and to the form of the relief available to the employee in the exercise of that right. (Liddell per Wilcox CJ., Keely J. at 351-352; per Gray J.at 365).

That is, if the employee has an alternative right to commence a proceeding and obtain a remedy which is an adequate right and remedy, having regard to the requirements of the Convention, the Court must decline to consider or determine the matter before it. The Act, in s.170EB, thereby stipulates that an alternative right and remedy provides adequate protection of the employee's interests if it satisfies the requirements of the Convention. It is unnecessary, and inappropriate, for the Court to consider whether the right and remedy replicate, or are "adequate" when compared with, the rights and remedies provided by the Act. Given that pursuant to s.170CA of the Act the legislative power of the Commonwealth relied upon to enact Division III Part VIA of the Act, which includes s.170EB, is s.51(xxix) of the Constitution, the requirement that "an adequate alternative remedy under existing machinery" satisfy the requirements of the Convention could be seen to be a requirement that is in harmony with the exercise of the power.

In determining whether the State Act provides a right to commence a proceeding for a remedy which satisfies the requirements of the Convention, it is first necessary to consider the effect of sub-ss.29(2), (3) of the State Act. Unless it can be said that the employee has an entitlement to bring such a proceeding under the State Act at the time the question of the existence of that right is raised for consideration by this Court s.170EB can have no application.

Counsel for Makfren submitted that sub-s.29(2), (3) of the State Act prescribed formal steps to be complied with by an employee and that the word "may" as used in sub-s.29(3) should be read as an imperative direction to the State Commission, if those steps are satisfied, to extend the time permitted for the reference of such a claim to the State Commission.

I am unable to agree. It would have been a simple matter for the legislature to have expressed sub-s.29(3) as a qualification upon the time limit provided in sub-s.29(2), in particular, by providing that an employee may refer an industrial matter to the State Commission where that matter is the subject of an application to this Court under s.170EA of the Act. The State Act is not expressed in those terms and it is a requirement that the Commission be satisfied that "the extension of time is necessary to ensure a remedy in respect of the dismissal is available under the State Act". If those words were intended to mean no more than a requirement that the State Commission be satisfied that if time were not extended the employee would not be able to refer a claim to the State Commission the words would be otiose. It is apparent that in exercising its discretion the Commission is to have regard to whether it is "necessary" that the employee be given access to such a remedy. It would appear that the State Commission is required to consider the facts relevant to the employee's application for the extension of time and determine whether in all the circumstances, it is satisfied that it is appropriate to grant that extension. No doubt in the present case one of the matters to which the State Commission would give attention is whether the applicant should be given a second opportunity having already referred the matter of dismissal to the State Commission under sub-para.29(1)(b)(i) of the State Act and then withdrawn the application.

Having regard to those matters it cannot be said at this point that Ms Willcocks has an entitlement to have her claim for relief determined on the merits by the State Commission. As stated earlier the adequate alternative remedy under existing machinery must be available at the time the Court considers whether s.170EB of the Act must be applied. It is not to the point that such an entitlement may become available if time is extended by the State Commission. Unless the entitlement exists at that time there is no proceeding that the employee is able to prosecute that is an alternative to the application then before the Court. It is not the intention of Parliament, as expressed in s.170EB of the Act, that a proceeding in this Court not be considered or determined if an employee has no more than a right to seek the leave of another tribunal to commence an alternative proceeding under which appropriate remedies may be granted. Similarly s.170EB can not be read as an instruction to the Court to stay a proceeding until such time as an employee has taken steps to determine whether a right to proceed in another jurisdiction will become available to the employee. (See: Liddell per Wilcox CJ., Keely J. at 354-356; Gray J. at 369-370).

That conclusion means that the question the parties have asked me to decide must be answered in the negative.

However, even if it were to be determined that Ms Willcocks was entitled to commence a proceeding in the State Commission there are other reasons for concluding that the machinery provided by the State Act for the conduct of such a proceeding and the remedies available under the State Act do not satisfy the requirements of the Convention.

Pursuant to Art.1 of the Convention the provisions of the Convention, insofar as they are not otherwise made effective by, inter alia, arbitration awards, must be given effect by the ratifying nations by laws, or regulations, which satisfy the Convention.  Art.7 provides that the employment of a worker is not to be terminated for reasons related to the worker's conduct or performance before the worker is given an opportunity to provide a defence against the allegations made, unless the employer cannot reasonably be expected to provide that opportunity.  Ms Willcocks' employment was terminated by a summary dismissal.

The State Act does not give effect to terms of Art.7. It places the onus on an employee to establish that the dismissal was harsh, oppressive or unfair. An employee may satisfy that onus by showing that it was harsh, oppressive or unfair of the employer to fail to give the employee an opportunity to defend allegations made against the employee. Such a statutory provision falls well short of the requirement of Art.7 of the Convention that laws be implemented to prohibit an employer dismissing an employee for misconduct before providing an opportunity to the employee to answer the allegation. (See: Fryar v. Systems Services Pty Ltd (1995) 130 ALR 168 per Wilcox CJ., Beazley J. at 183-184).

Furthermore, in Art.9(2) of the Convention it is provided as follows:

"(2) In order for the worker not to have to bear alone the burden of proving that the termination was not justified, the methods of implementation referred to in Article 1 of this convention shall provide for one or the other or both of the following possibilities:

(a)the burden of proving the existence of a valid reason for the termination as defined in Article 4 of this Convention shall rest on the employer;

(b)the bodies referred to in Article 8 of this Convention shall be empowered to reach a conclusion on the reason for the termination having regard to the evidence provided by the parties and according to procedures provided for by national law and practice."

The State Act fails to give effect to this requirement of the Convention. In s.23AA of the State Act an employer is required to show that there is "a ground or are grounds on which the Commission could find that the dismissal was justified" (emphasis added). Sub-section 23AA (1) does not impose on the employer the burden of proving the existence of a valid reason for the termination of the employee's employment. By requiring the employer to show no more than there is a ground on which the Commission could find the dismissal was justified, the Act requires the employer to prove the possibility of the existence of that reason and not to prove the existence of that reason. Although s.26 of the State Act requires that the State Commission, in the exercise of its jurisdiction under Act, to "act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms" that general instruction as to procedure would not satisfy the requirement of Art.9(2) of the Convention that part of the onus of proof be placed in the employer.

Article 11 of the Convention requires the laws, or regulations, to implement that an employee is entitled to receive a reasonable period of notice, or compensation in lieu thereof, unless the employee is guilty of serious misconduct. Section 170DB of the Act gives effect to that requirement of the Convention. The State Act, however, does not so provide and if Ms Willcocks were to establish in a proceeding before the State Commission that her dismissal was harsh, oppressive or unfair, the State Commission would be unable to order the payment of a sum in lieu of notice as an amount to which she was entitled under the State Act.

For the foregoing reasons I am not satisfied that on the facts presented there is an adequate alternative remedy under existing machinery that satisfies the requirements of the Convention. There will be a declaration to that effect.

It was submitted by counsel for Ms Willcocks that pursuant to s.347 of the Act an order should be made that Makfren pay the costs incurred by Ms Willcocks in this proceeding. It was said that Makfren was aware before it commenced the proceeding that the question it sought to have determined had been considered and dealt with by a Judicial Registrar on two occasions and therefore, it was said, the proceeding had been instituted by Makfren without reasonable cause.

I do not agree that any knowledge by Makfren of the fate of earlier arguments on this point meant that Makfren had decided to institute the request for the determination of the issue as a preliminary question without reasonable cause. Although several Judicial Registrars had decided the question in matters before them, as stated earlier in these reasons, each of those cases turned on its own facts. In any event the question was of sufficient importance to be determined by a Judge.  There will be no order for costs.

I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.

Associate:
          Date:

APPEARANCES

Counsel for the Applicant:  D.H. Schapper
Solicitor for the Applicant:  D.H. Schapper

Representative for the Respondent:  T. Smetana,
  Chamber of Commerce and  Industry of Western  Australia (Inc.)

Date of Hearing  :  26 July 1995
Date of Judgment :  22 August 1995