Stephens v Australian Postal Corporation

[2013] FCCA 1988

FEDERAL CIRCUIT COURT OF AUSTRALIA

STEPHENS v AUSTRALIAN POSTAL CORPORATION [2013] FCCA 1988

Catchwords:
INDUSTRIAL LAW – Fair Work Act2009 (Cth) – whether the respondent took adverse action against the applicant by refusing to employ him because the applicant exercised a workplace right by participating in proceedings against the respondent in contravention of s.341 of the Fair Work Act 2009 (Cth) – whether the respondent took adverse action against the applicant in contravention of s.351(1) of the Fair Work Act 2009 (Cth) because of the applicant’s physical disability – whether the respondent refused to employ the applicant – whether a vacancy existed with the respondent at the time the alleged refusal to employ occurred – application dismissed.

Legislation:
Fair Work Act 2009 (Cth), ss.340, 341, 342, 351, 360, 361.
Safety Rehabilitation and Compensation Act 1998 (Cth)

Cases cited:
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 220 IR 445
Construction Forestry Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008
McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 11
Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117
Amieu v Belandra [2003] FCA 910
Cugura v Frankston City Council [2012] FMCA 340

Applicant: LARRY STEPHENS

Respondent: AUSTRALIAN POSTAL CORPORATION

File Number: SYG 965 of 2012

Judgment of: Judge Emmett

Hearing dates: 11 & 12 November 2013

Date of Last Submission: 12 November 2013

Delivered at: Sydney

Delivered on: 27 November 2013

REPRESENTATION

Counsel for the Applicant: Ms Judith Keys

Counsel for the Respondents: Mr Simon Meehan

Solicitors for the Respondents: (Ashurst)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 965 of 2012

LARRY STEPHENS

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

REASONS FOR JUDGMENT

Procedural Background

1. This is a claim by the applicant for compensation for loss of wages and damages to reputation, including loss of work reference, reinstatement and a pecuniary penalty in respect of alleged adverse action on the part of the respondent.

2. By way of Statement of Claim, filed on 16 July 2013, the applicant alleges that the respondent contravened s.340(1) of the Fair Work Act 2009 (Cth) (“the FWA”) because the respondent took adverse action against the applicant by refusing to employ him because the applicant exercised a workplace right by participating in 2011 in Administrative Appeals Tribunal (“AAT”) proceedings involving the respondent; and, Federal Magistrate Court proceedings against the respondent.

3. It is common ground that the applicant was entitled to exercise his workplace rights as defined in ss.341(1)(b) and (k) of the FWA.

4. The applicant also alleges that the respondent has taken adverse action against him in contravention of s.351(1) of the FWA because of the applicant’s physical disability, being a lumbar spine injury sustained in 1998 during his employment with Telstra.

5. Section 342(1) of the FWA contains a table setting out circumstances in which a person takes adverse action against another person for the purposes of ss.340(1) and 351(1). The adverse action relied upon by the applicant is set out in item 2 of the table. Namely, that the respondent is a prospective employer that has refused to employ a prospective employee. The applicant also referred to s.342(2) of the FWA which extends the meaning of adverse action to include, relevantly, threatening and organising to refuse to employ the applicant.

6. Section 360 of the FWA provides that a person takes action for a particular reason if the reasons for the action include that reason. Section 361 provides that a person is presumed to have taken action for that reason unless the person proves otherwise.

7. By its Defence, filed on 3 August 2012, the respondent denies that it refused to employ the applicant and does not know and cannot admit whether the applicant has a physical disability. Further, in the alternative, the respondent denies that any refusal to employ the applicant was taken for the reasons referred to above. The respondent opposes the relief sought by the applicant.

8. Both parties were represented by counsel at the hearing.

9. The applicant contends that by a letter dated 22 December 2011, the respondent took adverse action against the applicant by refusing to employ the applicant for the reasons referred to above.

Issues

1. It is common ground that the issues before the Court are as follows:

   a)Was there a refusal by the respondent to employ the applicant?

   b)If there was a refusal to employ the applicant, was the refusal taken because the applicant exercised workplace rights?

   c)Did the applicant have a physical disability as at 22 December 2011?

   d)If the applicant did have a physical disability, was that an operative reason for the respondent’s refusal to employ the applicant?

Agreed Factual Background

1. The applicant had been employed by the respondent as a part-time driver/sorter on a fixed term contract from 11 May to 28 October 2009. That contract was continued on 21 October 2009 for a further period from 29 October 2009 to 20 January 2010.

2. On about 1 December 2009, the applicant successfully completed a truck (medium rigid) diving assessment conducted by the respondent. The applicant was then qualified to be a Postal Transport Officer (“PTO”), although was never employed as one.

3. On 3 December 2009, the applicant sustained an injury to his lumbar spine during the course of performing work with the respondent.

4. On 7 January 2010, the respondent terminated the applicant’s employment.

5. Following his termination, the applicant exercised a workplace right under the Safety Rehabilitation and Compensation Act 1988 (Cth) in proceedings in the AAT, which were determined in favour of the applicant on 13 January 2010.

6. The applicant also made a general protections application to Fair Work Australia, which failed at conciliation. The applicant then filed a general protections application with the Federal Magistrates Court on 29 June 2010 seeking, inter alia, reinstatement. Ultimately, that application was determined in the Federal Court of Australia by Rares J, who ordered that the applicant be reinstated for a fixed term from 15 August 2011 to 25 August 2011.

The Evidence before the Court

1. On 26 October 2011, the respondent advertised positions for PTO’s in the Newcastle, Maitland and Hunter area. The applicant deposed that it was his recollection that the respondent also advertised for driver/sorter positions in the Central Coast area at around the same time. It was the applicant’s evidence that he accessed the website to apply online for those positions. However, because a prior application for employment made by the applicant was still in place, there was no provision on the website for the applicant to log on or submit a fresh application.

2. On 27 October 2011, the applicant contacted the respondent’s Indigenous Employment Consultant, Mr Lee Hinton, by email. Relevantly, the email stated as follows:

   “I wish to apply for the position as advertised in Seek yesterday as a HR truck driver in the Newcastle Area under the Australia Post Indigenous Employment and  Strategy, So can you please put my name forward because I appear to be blocked online?”

3. Mr Hinton deposed that in May 2009 he had assisted the applicant with previous employment with Australia Post in processing his application and facilitating his placement in a part time driver/sorter role.

4. Mr Hinton deposed that when he received the email from the applicant on 27 October 2011, he was unaware that the applicant’s employment had ceased or that he had any legal proceedings on foot against the respondent. The applicant’s email also contained detail of his view of the proceedings in the AAT and the Federal Magistrates Court and Federal Court.

5. Mr Hinton deposed that, having regard to the reference to prior legal proceedings by the applicant in his email, and about which Mr Hinton was not aware, Mr Hinton was not sure how to handle and respond to the email. Mr Hinton deposed that he spoke with a Mr John Craig, the Human Resources Consultant for the Hunter region. He referred to the applicant’s Court proceedings against the respondent. Mr Hinton deposed that Mr Craig said that he should speak to Mr Tony Stavropoulos, a Senior Workplace Relations Advisor with the respondent. Mr Hinton did so, and Mr Stavropoulos asked him to send a copy of the applicant’s email to him for consideration.

6. Mr Hinton deposed that Mr Stavropoulos then spoke with him and said, “let’s just get him to submit an application and we’ll process him like we would anyone else.”

7. Mr Hinton then told Mr Stavropoulos of the difficulty that the applicant was having in that the system would not allow him to submit an application. Mr Hinton deposed that Mr Stavropoulos told him (Mr Hinton) to get to the bottom of why the system would not let the applicant’s application be received by the system.

8. Mr Hinton deposed that he then contacted Ms Jayne Turner, who was the Acting Manager of Central Recruitment at the time. Mr Hinton understood her to be an “expert for issues with the online system” and asked her to find out what the problem was with the applicant’s online application and why it would not be accepted.

9. Ms Turner deposed that in late October or early November 2011, Mr Hinton contacted her to request her to investigate why it was that the applicant was unable to submit his application. Ms Turner deposed that she went through the process of archiving the applicant’s old application in order to allow him to submit a new application.

10. Ms Turner said she then contacted the applicant and told him that she had withdrawn his old applications and archived them, and that he should now be able to apply. She told the applicant that the system can take up to 24 hours to update, so he should wait a day or so and then try again. Ms Turner then gave the applicant her contact details so that the applicant could contact her if there were any further issues.

11. Ms Turner deposed that the next day, or shortly thereafter, the applicant contacted her and told her that he was still unable to complete his online application. Ms Turner deposed that she told the applicant that sometimes archiving is not sufficient and that she would try deleting any previous applications from the system, rather than just archiving them. She informed the applicant that he would then have to start a fresh application and that he should still wait a day or so before applying again, but that it then should be fine.

12. Ms Turner deposed that during these telephone discussions, the applicant said that he was sure that the respondent was deliberately blocking his application and that he was being barred from applying because he was a previous employee. Ms Turner deposed that she did not recall any reason that the applicant gave her as to why he had that belief. However, Ms Turner said that she assured the applicant that this was not the case and that she confirmed with him how the application process worked.

13. Mr Hinton deposed that on 16 November 2011, he was advised by Ms Turner that she had fixed the applicant’s problem and that the applicant could now apply for positions with the respondent online. On that date, Mr Hinton also sent an email to the applicant in the following terms:

    “Larry,

    I refer to your email in respect of an HR truck driver position that was advertised on seek, I have made some inquires with our recruitment area as to why your online application was unable to be processed, and they have advised that as you have previous applications on the system, this restricts further applications being submitted.

    The recruitment area have now cleared the system of your previous applications and you should be able to apply online. Can you attempt to apply online and if there are any further issues please advise me.

    Regards

    Lee Hinton”

14. On 18 November 2011, Mr Hinton sent a follow up email to the applicant in the following terms:

    “Larry,

    There was a problem with our recruitment system, which I had been assured; this has now been resolved.

    Please feel free to try and lodge your application again over the weekend, and if there are any further issues, please advise me.

    Regards,

    Lee Hinton.”

15. On 1 December 2011, the applicant attempted to submit an application for a driver/sorter position. He did not submit an application for a PTO role.

16. However, the applicant had incorrectly completed his address and suburb details, which did not allow the online application to progress. When the applicant’s application came to the attention of Mr Hinton on 2 December 2011, Mr Hinton was aware of the inaccurate information and the need for the applicant to correctly complete his application so that it could progress to the next stage.

17. Accordingly, on 5 December 2011, Mr Hinton wrote to the applicant telling him that his application was currently incomplete and could not be processed until it was completed. Mr Hinton suggested the applicant go onto the website and update his personal details as his address was “invalid”. The letter also provided Mr Hinton’s contact details for the applicant’s assistance.

18. Mr Hinton deposed that at the time of writing to the applicant on 5 December 2011, from looking at the weekly recruitment report for driver/sorter roles in the system he was aware that there were no driver/sorter vacancies in the Central Coast or Newcastle areas.

19. Ms Turner also deposed that, having checked all recruitment documents and reports available, she was unable to find any information to indicate that there were any driver/sorter positions available on the Central Coast at any relevant time.

20. On 21 December 2011, the applicant updated his personal information and corrected his address details.

21. Mr Hinton deposed that on 22 December 2011, during his daily review of information of new applications from indigenous applicants, he became aware that the applicant had corrected his address details and submitted an application for a PTO position on 21 December 2011. Mr Hinton deposed that he made inquiries with the Recruitment Consultant, responsible for filling the PTO positions, about whether the role for which the applicant was applying was still vacant. He was informed that all PTO vacancies had been filled. Mr Hinton deposed that he also made inquiries about driver/sorter roles, but the Recruitment Consultant said that there were no such positions available in the applicant’s area.

22. Accordingly, on 22 December 2011, Mr Hinton sent a letter to the applicant in the following terms:

    “Dear Larry,

    RE: Application for employment at Australia Post

    Thank you for your application or employment opportunities with Australia Post.

    I have been advised by the Recruitment Unit that unfortunately there were far more candidate applications than positions available and I regret to inform you Australia Post will not be proceeding with your application at the present time. There were a number of other people who also missed out on a position, due to the high volume of applications.

    Your details will be kept on file and you will be considered for future vacancies as they arise. If you are short-listed for a future vacancy, you will be contacted at that time. Please note that we will keep your details on file for 12 months from the date of initial application.

    During this time, you will be considered for all vacancies which suit the work preferences you have indicated to us. If you wish to change any details on your application, or have your details removed from our database, please update your online application.

    If you have any questions regarding this matter please don’t hesitate to contact me on [redacted].

    Regards,

    Lee Hinton”

23. It was that letter from Mr Hinton that the applicant alleges was the respondent’s refusal to employ the applicant.

24. Mr Graham Ivin is the Postal Transport Coordinator for the respondent at the Hunter Transport Facility in the Hunter Region of New South Wales.

25. Mr Ivin deposed that in or around October 2011, he determined that it was necessary for additional fixed term part-time PTOs to be appointed to cover some temporary labour shortages in the facility. Mr Ivin then liaised with the respondent’s Recruitment Department in Sydney to fill the temporary positions. Mr Ivin deposed that his primary contact in the recruitment team for the PTO roles was Recruitment Consultant, Mr Sang Diep. Mr Diep was responsible for forwarding applications for suitable candidates to Mr Ivin for him to interview and for arranging suitable dates and times for the interviews.

26. Mr Ivin informed Mr Diep that he needed three positions in total. Mr Ivin recalled an advertisement for fixed term part-time PTOs with heavy rigid driving licenses being placed on “Seek” in or around late October 2011.

27. Mr Ivin said that he interviewed eight candidates for those positions. Mr Ivin deposed that by the end of November 2011, the three new fixed term part-time PTO positions were filled and the three new employees commenced employment in early December 2011.

28. Mr Ivin deposed that on 12 December 2011, he was advised by Mr Diep that one of the three new PTOs had resigned. Mr Ivin requested that recruitment source more candidates to fill that vacancy. Mr Ivin deposed that he was provided with only one further candidate for interview, whom he interviewed on or around 13 December 2011, but that candidate was not made an offer of employment due to failing his driving assessment.

29. Mr Ivin deposed that on 21 December 2011, he cancelled the third position as he believed that it was too close to Christmas to be of any use to the transport facility to address the temporary Christmas peak, and that it was too busy to train a new worker at that time of the year. Mr Ivin deposed that he notified Mr Diep by telephone, who confirmed his cancellation in writing. A copy of an email from Mr Diep confirming the cancellation of the PTO job request was annexed to Mr Ivin’s affidavit.

30. Mr Ivin deposed that he was not aware that the applicant had sought to make an application. He deposed that he had since been advised that the applicant had since submitted an application for a PTO position on 21 December 2011, at which time all available positions were filled.

31. Mr Ivin deposed that when he made his decision on the appointment of the successful candidates and on his decision to cancel the third position, he had never heard of the applicant. Mr Ivin further deposed that prior to being contacted to give evidence in this proceeding, he was not aware that the applicant had participated in any other Court proceedings involving the respondent.

Findings

1. All the witnesses referred to above gave evidence before me and were cross examined.

2. It was put to the applicant in cross examination that he was not aware of any vacancy for a PTO role on 21 December 2011 when he submitted his application. The applicant confirmed that the advertisement on 26 October 2011 was the only vacancy of which he was aware.

3. The applicant denied ever having any conversation with Ms Turner. However, I found Ms Turner to be a particularly impressive witness and I prefer her evidence to that of the applicant where it departs from the applicant’s evidence. However, I accept that all the witnesses were doing their best to give their best recollection of relevant matters.

4. I find that on 21 December 2011, the applicant submitted a valid application for employment as a PTO with the respondent.

5. Otherwise, I make findings in accordance with the evidence that I have referred to above.

6. In those circumstances, I am satisfied that there was not a vacancy for a PTO role at the time the applicant submitted his online application on 21 December 2011 for that role. His earlier attempt to submit an application on 1 December 2011 was incorrectly completed and was for a driver/sorter role. I also accept on the evidence before me that there were no driver/sorter roles available on 22 December 2011 when the applicant received the letter from Mr Hinton informing him that his application for employment had been unsuccessful.

1. In the circumstances, there was no vacant role to which the applicant could be appointed, either as a driver/sorter or a PTO as at 21 December 2011.

Refusal to Employ

1. The respondent contends that it is for the applicant to prove that there had been a refusal to employ the applicant and, if proved on the balance of probabilities, then the onus shifts to the respondent to show that it did not involve a reason prohibited by the FWA. The applicant, on the other hand, contends that the respondent bears the onus of showing that there was not a refusal to employ.

2. For the reasons below, in my view it is for the applicant first to establish that there has been a refusal to employ the applicant to a relevant position that was vacant at the time.

3. Ultimately, it matters little difference in this case. I have found that there was no vacant position at the time of the application on 21 December 2011 and on 22 December 2011 the applicant was told that his application for employment was unsuccessful. I have found that the absence of any vacant position for which the applicant had applied was the only reason that the respondent did not employ the applicant. I have also found that the relevant decision-maker was unaware of the prior disputes and Court proceedings between the applicant and the respondent and was also unaware of any alleged physical disability on the part of the applicant.

4. In the circumstances, even if there was a refusal to employ, it was not for a prohibited reason and any burden that the respondent may have had to prove that he did not refuse to employ the applicant for a prohibited reason has been discharged.

Relevant Law

1. In Construction Forestry Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 (“CFMEU v BHP”), Wilcox J stated at [50] as follows:

   “50. A refusal to employ somebody involves discrimination or victimisation only if there was, at the relevant time, a vacancy or prospective vacancy. For that reason, I agree with, and apply to the current legislation, Moore J's observation that the reference to refusing to employ a person concerns actual employment where there is a refusal to employ a person in circumstances where, apart from the refusal, employment might or would arise."

2. In McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111, Greenwood J at [201] stated that before a refusal to employ an individual for a prohibited reason can arise, the individual must demonstrate that a vacancy was available to be filled. Greenwood J referred to Wilcox J’s observations in CFMEU v BHP in support of that proposition and Wilcox J at [50].

3. Greenwood J also referred to Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117 (“Fraser”), where Moore J stated as follows:

   “…the expression “refuse to employ” deals with… actual employment where there is a refusal to employ a person in circumstances where apart from the refusal, employment might or would arise. It concerns actual and not theoretical employment.”

4. Greenwood J considered the decision of North J in Amieu v Belandra [2003] FCA 910 at [51], where North J suggested that a refusal to employ arises even though there may be no available vacancy. North J suggested that once an applicant proves the conduct of refusal, the onus shifts to the respondent to disprove the prohibited reason alleged. North J found that it is at this point that the absence of a vacancy may provide an innocent explanation for the conduct. His Honour stated that depending on the circumstances giving rise to the absence of a vacancy, the lack of an available position may show that the reason for the refusal to employ was not for a prohibited reason.

5. However, Greenwood J went on to state as follows:

   “It seems to me, in having regard to the threshold conduct of a refusal to employ another person, required to be established by the applicant before s.298V [of the Workplace Relations Act 1996] has any operation, the phrase ‘logically contemplate the existence of a position to be filled or a position in prospect within the boundaries of reasonable temporal limitations. Evidence my demonstrate such a position or demonstrate in respect of a particular industry, a systemic process of casual employment or a recurrent demand within a particular industry for full time employees. It seems to me the applicant would need to adduce some evidence of a vacancy or prospective vacancy and not simply a theoretical possibility of the position.”

6. In Fraser, Moore J observed that no evidence had been lead to establish that vacant positions existed that the prospective employee might have been able to occupy or fill if the request for employment had not been refused.

7. In circumstances where the applicant in the proceeding before this Court has not provided any evidence of any vacancy as at 22 December 2011 when the respondent wrote to him informing him that his employment application was not successful (that being the time at which the applicant alleges there was a refusal by the respondent to employ the applicant) and in light of the clear evidence of the respondent’s witnesses that there was no vacancy at all as at 22 December 2011, either in a driver/sorter role or as a PTO, I am not satisfied that there was a refusal to employ the applicant.

8. However, even if it be the fact that the respondent bears the onus from the outset, I accept the evidence of Mr Ivin as the relevant decision maker, that there were no PTO positions available as at 21 December 2011, being the date of the applicant’s application for a PTO position. I also accept that Mr Ivin had no prior knowledge of the applicant or any dispute he may have had with the respondent (see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 220 IR 445 at 456-7).

9. I also accept the evidence of Mr Hinton and Ms Turner that there were no driver/sorter positions available at the time the applicant wrote to Mr Hinton on 27 October 2011 or at any date subsequent to 22 December 2011.

10. Whilst Mr Hinton was aware of the disputes between the applicant and the respondent, on the evidence before me, Mr Hinton properly discharged his responsibilities as the Indigenous Employment Consultant both to the applicant and the respondent in his conduct in relation to the applicant’s employment applications on 27 October 2011 and 21 December 2011.

11. There was no manner in which Mr Hinton’s conduct, insofar as he was involved in assisting the applicant in making his applications, could be said to be “prohibited conduct” for the purposes of s.341 of the FWA.

12. Accordingly, on 22 December 2011, when the respondent wrote to the applicant informing him that his application for employment had been unsuccessful, there were no relevant vacancies on that date. Further, there had been no vacancies at the times when the applicant had applied for positions with the respondent. I am further satisfied that the fact that there were no vacancies for the positions applied for by the applicant did not involve any “prohibited conduct” as contemplated in s.341 of the FWA.

13. In the circumstances, if s.361 of the FWA applies, as stated above, the respondent has provided rebutting evidence, being the direct testimony of Mr Ivin as the relevant decision maker’s reason for refusing to employ the applicant. I accept that any refusal to employ the applicant was not taken for a prohibited reason and that any burden that the first respondent bore by reason of s.361 of the FWA was discharged.

14. Accordingly, even if there was a refusal to employ the applicant, the clear evidence of the relevant decision maker, Mr Ivin, that as at 21 December 2011 when he cancelled the third vacancy, the other positions having been filled, he had no knowledge of the applicant’s prior proceedings in either the AAT, Federal Magistrates Court of Australia or the Federal Court of Australia.

15. In the circumstances, as stated above, I am satisfied that any refusal to employ the applicant was not for a prohibited reason and was solely because there was no position available at the time for which the applicant had applied.

Physical Disability

1. It is for the applicant to prove that on 22 December 2011 he had the “disability” particularised in the Statement of Claim and that it was a “physical disability” within the meaning of s.351 of the FWA (see Cugura v Frankston City Council [2012] FMCA 340 per O’Sullivan FM at [163].

2. The applicant particularises a physical disability being “lumbar spine injury sustained in 1998 during his employment with Telstra, including consequent discectomy”. The evidence before the Court suggests that the injury sustained by the applicant in 2009 whilst employed by the respondent has resolved.

3. There was no particular medical evidence relied upon by the applicant about how the injury suffered in 1998 rendered the applicant physically disabled as at 22 December 2011. However, for the purposes of considering the answers to the issues referred to below, I am prepared to accept that the applicant probably did have a physical disability.

4. However, in light of the evidence of Mr Ivin as to the reasons why there was no vacancy as at 22 December 2011, I am also satisfied that any failure to employ the applicant was not because of any physical disability that the applicant may have had.

5. There is no evidence of any knowledge that Mr Ivin was aware of any such disability and it was not put to him in cross-examination that he had any knowledge of such a disability. Accordingly, I find that Mr Ivin, being the relevant decision-maker, was not aware of any disability that the applicant may have. In light of this finding, it is not necessary to determine finally whether the applicant had an existing physical disability.

6. As stated above, I am satisfied that the only reason that the applicant’s job application was unsuccessful was because there was no relevant job available for which the applicant had applied as at 21 December 2011.

Conclusion

1. In short, answers to issues before the Court referred to in paragraph 10 above in these Reasons should be answered as follows:

   a)Was there a refusal by the respondent to employ the applicant? No.

   b)If there was a refusal to employ the applicant, was the refusal taken because the applicant exercised workplace rights? No.

   c)Did the applicant have a physical disability as at 22 December 2011? Possibly.

   d)If the applicant did have a physical disability, was that an operative reason for the respondent’s refusal to employ the applicant? No.

2. Accordingly, the proceeding before this Court commenced by way of application, filed on 3 May 2012, should be dismissed.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date: 27 November 2013