Sedgwick Ltd v Bain Clarkson Ltd [1995] FCA 208

CATCHWORDS PRACTICE AND PROCEDURE - application to set aside an order for service out of the jurisdiction - whether claim for indemnity is one which may be made under s 87 of the Trade Practices Act 1974 - whether damages for legal costs, lost staff time and travel expenses is prima facie capable of being loss and damage under s 82 of the Act Trade Practices Act, 1974 (Cth): ss 82, 87. Federal Court Rules, O 8, r 1. Wardley Australia Ltd v The State of Western Australia [1992] 175 CLR 514 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 March v Stramare (E & M.H.) Pty Ltd (1991) 71 CLR 506 Mercantile Mutual Holdings Ltd v International Reinsurance Management Pty Ltd (In Liq.) and Ors (unreported, Giles J, NSWSC, 23.7.94) Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Oceanic Sun Line Special Shipping Co Inc. v Fay (1988) 165 CLR 197 State of Western Australia & Anor v Vera Trittler Pty Ltd (1991) 30 FCR 102 May v O'Sullivan (1955) 92 CLR 654 SEDGWICK LIMITED v BAIN CLARKSON LIMITED (t/as BAIN HOGG LIMITED) No. NG724 OF 1994 Beazley J 7 April 1995 Sydney

IN THE FEDERAL COURT OF AUSTRALIA ) ) No. NG724 of 1994 NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION ) BETWEEN: SEDGWICK LIMITED Applicant AND: BAIN CLARKSON LIMITED (t/as BAIN HOGG LIMITED) Respondent CORAM: BEAZLEY J PLACE: SYDNEY DATE: 7 April 1995 MINUTE OF ORDERS The Court orders that: 1. The respondent's notice of motion filed 27 January 1995 be dismissed 2. The respondent pay the applicant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA ) ) No. NG724 of 1994 NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION ) BETWEEN: SEDGWICK LIMITED Applicant AND: BAIN CLARKSON LIMITED (t/as BAIN HOGG LIMITED) Respondent CORAM: BEAZLEY J PLACE: SYDNEY DATE: 7 April 1995 REASONS FOR JUDGMENT BEAZLEY J: This is an application to set aside an order for service out of the jurisdiction made on 30 November 1994 made pursuant to Order 8 Rule 1 of the Federal Court Rules which relevantly provide: "(a)where the proceeding is founded on a cause of action arising in the Commonwealth; ... (b) where the proceeding is founded on a breach of an Act, where the breach is committed in the Commonwealth; (c) where the proceeding is founded on a breach, wherever occurring, of an Act, and is brought in respect of, or for the recovery of, damage suffered wholly or partly in the Commonwealth; ..." The applicant's claim In its application filed 26 October 1994, the applicant claims: "1. An order that the Respondent indemnify the Applicant for any liability of the Applicant to TNT Limited for any loss which the Applicant might suffer as a result of or arising from the conduct of the Respondent referred to in the Statement of Claim. 2. Alternatively, a declaration that the Respondent is liable to indemnify the Applicant for any liability of the Applicant to TNT Limited, or pay damages to the Applicant for any loss which the Applicant might suffer as a result of or arising from the conduct of the Respondent referred to in the Statement of Claim. 3. Damages." Application to set aside order for service out of jurisdiction The respondents, who have conditionally appeared, submit that service should be set aside on three grounds: (i) in so far as the applicant seeks an order under s 87 of the Trade Practices Act for an indemnity no cause of action has arisen as no damage has been incurred; (ii) that the respondent was not involved in any conduct in contravention of s 52 of the Trade Practices Act within the Commonwealth; (iii) the legal costs, overhead expenses and travel costs claimed are not damages arising out of the respondent's wrongful conduct; Background facts Sometime prior to 30 June 1988, the applicant was retained by TNT Limited (TNT) as its insurance broker to obtain insurance cover worldwide for the TNT group of companies, including in respect of all marine and excess liability policies operative from 30 June 1988. In about March 1988, the applicant retained the respondent as a wholesale insurance broker to arrange on its behalf as TNT's insurance broker, marine and excess liability cover for the period commencing 1 July 1988 and thereafter until the retainer was countermanded. The applicant alleges that in retaining the respondent it relied upon the respondent to arrange the appropriate insurance cover and on being told by the respondent that such cover had been effected, relied upon such representation to inform and represent to TNT that such cover had been effected. The respondent made such representations to the applicant in respect of TNT's marine and excess liability cover for the financial years 1989 to 1992 inclusive. In 1992, the respondent informed the applicant that in respect of this period, the insurance cover had not been arranged in accordance with the wording of the cover notes issued to the applicant by the respondent. After negotiations between the applicant and respondent, gap insurance was arranged by both the respondent and the applicant on behalf of the respondent. The respondent paid the premium for such gap insurance. However, not all gaps in cover have been filled by this insurance. TNT has advised the applicant that it will hold it responsible for any loss or damage it might suffer because of the gaps in cover due to the representations made to TNT by the applicant as to the extent of cover. TNT has sought, and the applicant has given an indemnity for any loss and damage TNT might suffer by reason of relying upon the applicant's representations as to the extent and terms of its marine and excess liability cover. The applicant has sought a like indemnity from the respondent in respect of any liability of the applicant to TNT, which has not been forthcoming. The applicant alleges that it has suffered loss wholly in Australia as a result of the respondent's conduct, in particular in respect of monies incurred for legal costs and lost executive and employee wages in dealing with the matters which have given rise to the claim. It has particularised its legal costs at approximately $67,000, its lost staff time at approximately $52,000 and has also claimed travel expenses of $15,500. The indemnity claim It was common ground between the parties that in order for conduct in contravention of s 52 to give rise to a cause of action, an applicant had to suffer loss or damage. Counsel for the respondent submitted that a claim for or right to an indemnity did not constitute "loss or damage" as required to complete a cause of action under Part V of the Trade Practices Act 1974 (Cth). He submitted that no cause of action will arise unless and until TNT makes a claim on its insurance policy. It will only be at that time that the applicant will suffer "loss or damage". Reliance was placed upon Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514. In that case the Court at first instance had struck out an amended pleading that Wardley had engaged in s 52 conduct in connection with the execution of an indemnity, on the basis that the claim was statute barred. Mason CJ, Dawson, Gaudron and McHugh JJ stated at 526-527: "Under s. 82(1), as under the common law, a plaintiff can only recover compensation for actual loss or damage incurred, as distinct from potential or likely damage (Swingcastle Ltd v Gibson [1990] 1 W.L.R. 1223, at p. 1236; [1990] 3 All E.R. 463, at p.473, per Sir John Megaw; see also [1991] 2 A.C. 233, at p. 232, per Lord Lawry, referring to the words of Sir John Megaw on the appeal to the House of Lords). In that respect, we agree with the comments of the Full Court of the Federal Court ((1991) 30 FCR at pp 261-262) and we disagree with the statement of French J. "that risk of loss is itself a category of loss" ((1991) 28 FCR at p.87). The Act draws a clear distinction in Pt VI between loss or damage which may be recovered under s. 82 and the likelihood of loss or damage which may be prevented or, if not prevented, reduced by one of the remedies under s.87." and further at 532: "In the result, we agree with the decision of von Doussa J. in S.W.F. Hoists & Industrial Equipment Pty Ltd v State Government Insurance Commission ((1990) 6 ANZ Insurance Cases 76,688; [1990] ATPR 51,599). There the insured sued the insurer for loss suffered as a result of a misrepresentation as to the extent of the indemnity or liability coverage provided by a proposed contract of insurance. H is Honour held that actionable actual loss (as opposed to a mere potential for loss) occurred only when the insured was called on by a third party to make payments against which it would have been entitled to be indemnified by the insurer under the contract as represented. When the events entitling the third party to make the demand for payment occurred and when the insurer indicated, prior to the making of that demand, that it would not indemnify the insured against any such demand, there was no more than a potential for loss. S.W.F. Hoists and Zoneff v Elcom Credit Union Ltd ((1990) 6 ANZ Insurance Cases 76,847; [1990] ATPR 51,742) are to be distinguished from the English insurance cases Iron Trade Mutual Insurance Co. Ltd. v J.K. Buchenham Ltd ([1990] 1 All ER 808) and Islander Trucking Ltd v Hogg Robinson Ltd [1990] 1 All ER at p. 831 in that the policies of insurance in the Australian cases were worth what was paid for them." Counsel for the applicant submitted that Wardley was concerned with a claim for loss under s 82 of the Trade Practices Act 1974 (Cth) whereas the loss claimed in respect of the indemnity was made under ss 87(1A) & (IC) which provide: "(1A) Without limiting the generality of section 80, the Court may, on the application of a person who has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in (whether before or after the commencement of this subsection) in contravention of a provision of Part IVA or V or on the application of the Commission in accordance with subsection (1B) on behalf of such a person or 2 or more such person, make such order or orders as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in sub-section (2)) if the Court considers that the order or orders concerned will compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, in whole or in part for the loss or damage, or will prevent or reduce the loss or damage suffered, or likely to be suffered, by such a person. ... (1C) An application may be made under subsection (1A) in relation to a contravention of Part IVA or V notwithstanding that a proceeding has not been instituted under another provision of this Part in relation to that contravention". It was submitted that pursuant to these provisions "damage" as an ingredient of the cause of action included damage that was "likely to be suffered". This matter was considered by the Full Court of this Court in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31. Black CJ stated at 33: "In my view, the loss or damage for the purposes of both ss 87(1) and 87(1A), will include the detriment suffered by being bound to a contract induced by misleading or deceptive conduct in contravention of s 52. Proof of loss or damage of the sort that would be an "amount of...loss or damage" for the purpose of s 82 is not a prerequisite for the grant of relief under either subsection." and at 43 Gummow J stated: "Thus, whilst s 82 is concerned with the recovery of an amount representing the loss or damage, s 87 is concerned with compensation, whether in whole or in part, for loss or damage and with the reduction of loss or damage, and with the prevention of loss or damage which is likely to be suffered. In the phrase "likely to be suffered", the word "likely" speaks of a "real chance or possibility": Western Australia v Wardley Australia Ltd (1991) 30 FCR 245 at 261. One significant distinction between ss 82 and 87 is the quia timet operation of s 87. On the appeal to the High Court in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 527: "The Act draws a clear distinction in Part VI between loss or damage which may be recovered under s 82 and the likelihood of loss or damage which may be prevented, or, if not prevented, reduced by one of the remedies under s 87." Deane J said (at 850) that the statute in s 87 expressly distinguishes between the actual suffering of loss or damage and the likelihood (or contingency) that loss or damage will be suffered in the future. This emphasises that the phrase "the loss or damage", at least in s 87, may be concerned with more than pecuniary recovery as understood in the law of damages in tort; tort law postulates the commission, already accomplished, of a wrong: Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851 at 859, 868-869. Further, unlike the position at general law with the administration of the equitable remedy of rescission of contracts, orders under s 87 may be made not only against parties to the contract but also against third parties, being persons involved (within the meaning of s 75B) in the contravention as a result of which the plaintiff entered into the contract: Lezam Pty Ltd v Seabridge Australia Pty Ltd (supra) at 304; Munchies Management Pty Ltd v Belperio (supra) at 714. The respondents complain that they entered into a contract as the result of reliance upon conduct which contravened s 52. Why should they not be described as having suffered loss or damage, within the meaning of s 87, by that very reliance and entry into legal relations from which they otherwise would have abstained? If that contract be declared void ab initio as provided for in s 87(2)(a), will that not reduce this loss or damage? It may well be that in a given case the contract is not financially disadvantageous to the complainant. But, at least in Australia, if a contract is rescinded in equity for some vitiating factor in its formation, it is not sufficient for the defendant to show that the transaction to which the complainant was improperly induced to assent, after all, contained terms which, viewed objectively, were not manifestly disadvantageous so that, the complainant should freely have accepted them. The complainant is entitled to say that but for the unconscientious conduct of the defendant he or she would not have entered into any transactions with the defendant: see M Cope, "Undue Influence and Alleged Manifestly Disadvantageous Transactions: National Westminster Bank Plc v Morgan" (1986) 60 ALJ 87 at 96-97, where the High Court authorities are discussed, and cf Bank of Credit & Commerce International v Aboody [1990] 1 QB 923." Finally Cooper J stated at 47-48: "In my opinion, "loss or damage" in s 87(1) means no more than the disadvantage which is suffered by a person as the result of the act or default of another (Halsbury's Law of England (4th ed), Vol 12, par 1102) in the circumstances provided for in the section. The phrase "loss or damage" in s 87(1) does not involve any concept of quantum or assessment of damages: see Barneys Blu-Crete Pty Ltd v Australian Workers' Union (1979) 43 FLR 463 at 473 where Northrop J expressed a similar view as to the use of the same phrase in s 45D(1)(a) of the Act. This is to be contrasted with the context of the phrase in s 82 where it is "the amount of the loss or damage" which is recoverable by action. For the purpose of s 82 it is the quantum or assessment of the loss or damage suffered in monetary terms which must be demonstrated. The rules as to the assessment of damages or the measure of damages in an action for deceit are relevant to the question of loss or damage under s 82. However those rules are not relevant to the meaning of the phrase in s 87(1). The distinction between "loss or damage" and "the amount of the loss or damage" is reflected in the terms of section 4K of the Act. The section provides: "In this Act- (a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and (b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury." There are practical reasons why this should be so. The prima facie rule that the measure of damage in deceit is the difference between the value of the property and the price paid is inappropriate where the contract is not completed: Myers v Transpacific Pastoral Co Pty Ltd [1986] ATPR 47,421 at 47,424. Where the contract remains unrescinded the costs associated with the conveyance of the property are costs arising out of the contract and of performing the obligations imposed thereby. Until the contract is rescinded such costs and expenses do not take on the character of costs and expenses thrown away and as such recoverable loss and damage under the general law. The court is not restricted in granting a remedy under s 87 by the limitations under the general law of a party's right to rescind for breach of contract or misrepresentation (Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 at 102, 109). Likewise the limitations under the general law as to the assessment of damages and the measure of damage ought not be imported into a definition of "loss or damage" in s 87 to limit the category of actionable loss or damage. To adopt a definition of loss or damage" for the purpose of s 87(1) which includes the disadvantage of incurring contractual obligations that would not have been incurred but for the conduct complained of does not mean that the granting of a proper discretionary remedy necessarily leads to the setting aside of such a contract or to a refusal to enforce it according to its terms. That result will always depend upon the particular circumstances which exist when the occasion calls for an exercise of the powers under s 87 of the Act. Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (supra) is an example of a case where such a result was inappropriate. However, one of the circumstances that will be considered by the court, amongst others, is the object behind s87(2)(a) and (ba) of the Act. That object mirrors the approach of equity in the case of equitable fraud or unconscionability. The granting of equitable relief in those circumstances is not "to extend sympathetic benevolence to a victim of undeserved misfortune" but "one which denies to those who have acted unconscientiously the fruits of their wrongdoing" (per Kitto J in Blomley v Ryan (1956) 99 CLR 362 at 429; see also Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 475)." I have taken the liberty of setting out these passages at some length as they clearly support the applicant's submissions. Accordingly, I am of the opinion that the claim for indemnity is one which may be made under section 87 and the respondent's submission must fail. Locus of the claim Counsel for the respondent submitted that, as a matter of discretion, the court ought not to order service out of the jurisdiction, as the "relevant conduct" occurred in the United Kingdom, notwithstanding that some of the conduct occurred within the jurisdiction. He identified the relevant conduct as being: "the fact that the respondent appears to have failed to have effected insurance cover in accordance with the relevant...instructions which were [given] to it by the applicant..." This submission recognises that the elements of the cause of action for contravention of s 52 occurred in Australia. Thus, the representations were made in Australia as this is where they were received: see Voth V Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 578. The reliance was in Australia and the damage claimed occurred in Australia. However, it submitted that, in the exercise of its discretion, the court should apply a test analogous to that applied in the forum non conveniens cases. In support of this approach, counsel relied upon Mercantile Mutual Holdings Ltd v International Reinsurance Management Pty Ltd (In Liq.) and Ors (unreported, Giles J, NSWSC, 23.7.94) where his Honour stated at 33: "The cause of action for damages for negligence may be put aside for the reasons already given. As to avoidance or setting aside, it has been held that the substance of causes of action for damages founded on misrepresentations by telephone calls or telexes were committed in the places where they were received and acted upon (Diamond v Bank of London and Montreal Ltd (1979) 1 QB 333; Cordoba Shipping Co Ltd v National State Bank (1984) 2 L1R 91). Avoidance of a contract of insurance for misrepresentation could be approached in a similar way. However, Voth v Manildra Flour Mills Pty Ltd at 568 makes it plain that there can not be a general rule, since sometimes a statement may be received in one place and acted upon in another, sometimes the place where it is acted upon may be fortuitous, and in every case it must be asked where in substance the act giving the plaintiff his cause of complaint took place. Where it is necessary to ascribe a place to an omission, the omission may take its significance from the occasion, and place of the occasion, for disclosure of that which was omitted, and so it was held in Voth v Manildra Flour Mills Pty Ltd at 569 that the tort was committed in Missouri because it was there that the accountant failed to render proper accountancy services, even if the provision of accountancy services could be regarded as a statement received or acted upon in Australia." In Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Mason CJ, Deane, Dawson and Gaudron JJ stated at 564: "In the present case, the court has before it an application to set aside service effected pursuant to an ex parte grant of leave to serve outside the jurisdiction. Where a case falls within a category in which the legislature has seen fit to allow service outside the jurisdiction if, but only if, the leave of a court is first obtained, that court should not grant leave unless it is positively persuaded that it should do so. Plainly, it should not be so persuaded unless the plaintiff satisfies it that the case is of the relevant category and that the proceedings would not be subsequently stayed as an abuse of process on forum non conveniens grounds or for some other reason. In such a case the onus should remain on the plaintiff on a subsequent application to set aside the service outside the jurisdiction. Otherwise, the ex parte order for service outside the jurisdiction, if onus of proof were to prove decisive, would confer an enduring advantage upon a plaintiff notwithstanding that the expanded evidence on a contested application to set aside service indicated that the applicant had not been entitled to that ex parte order." Their Honours further stated at 564-5: "It follows that, subject to the question of onus discussed in the preceding paragraph, the principles to be applied in applications to set aside service and in applications for a stay on inappropriate forum grounds are those stated by Dean J. in Oceanic Sun Line Special Shipping Co Inc v Fay ((1988) 165 CLR at 247-248). In the application of those principles the discussion by Lord Goff in Spiliada Maritime Corp v Cansulex Ltd ([1987] AC at 477-478, 482-484) of relevant "connecting factors" and "a legitimate personal or juridical advantage" provides valuable assistance." In Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Deane J stated the test at 247-248 in these terms: "That power is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression. The power should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him." Counsel for the applicant submitted that the Court would not exercise its discretion against the applicant as every element of the cause of action occurred in Australia. This puts the matter too simplistically. It would always be possible that a forum non conveniens application could still succeed, notwithstanding that the entire cause of action arose within the jurisdiction. However, having regard to the test propounded in Oceanic, I am not satisfied that a forum non conveniens in this case must necessarily succeed. Indeed, there was nothing in the evidence before me to indicate that this was an inappropriate forum. Claim for damages for legal costs, lost staff time and travel expenses Counsel for the respondent submitted that the legal costs incurred and the claim for damages for lost staff time in dealing with the alleged contravening conduct is not capable of being loss or damage under s 82. He referred to the legal expenses as being precautionary or prophylactic expenses incurred prior to the commencement of action for the purposes of ascertaining whether the applicant had a arguable cause of action against the respondent. When pressed in relation to the legal costs, counsel for the respondent narrowed his submission to this: "these are costs which the applicant would not be entitled to recover pursuant to the relevant rules of court". However, the applicant does not claim these costs as costs associated with the proceedings. Rather, they are claimed as costs incurred as part of an investigation of problems which arose in relation to the insurance cover arranged by the respondent. The costs for staff time are claimed on the same basis. Accordingly, the correct question to ask is whether these costs were caused by the wrongful conduct of the respondent. In March v Stramare (E & M.H.) Pty Ltd (1991) 171 CLR 506 the High Court held that the question of causation should be adopted on common sense basis, and that the "but for" whilst a valuable tool in the resolution of causation issues, was not the sole criterion. As Deane J stated at 522: "For the purposes of the law of negligence, the question of causation arises in the context of the attribution of fault or responsibility whether an identified negligent act or omission of the defendant was so connected with the plaintiff's loss or injury that, as a matter of ordinary common sense and experience, it should be regarded as a cause of it." In Wardley, the High Court applied the approach in Stramare to claims under s 82 of the Trade Practices Act, 1974 (Cth) with the following qualifications: "The statutory cause of action arises when the plaintiff suffers loss or damage "by" contravening conduct of another person. "By" is a curious word to use. One might have expected "by means of", "by reason of", "in consequence of" or "as a result of". But the word clearly expresses the notion of causation without defining or elucidating it. In this situation, s.82(1) should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this court in March v Stramare (E.& M.H.) Pty Ltd ((1991) 171 CLR 506), except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act. Had Parliament intended to say something else, it would have been natural and easy to have said so. Whilst there was a break up of the legal costs claimed by reference to the date incurred, there was no detail provided of the work performed which gave rise to the costs save to the extent to which I have referred earlier: namely that the sums were incurred "for legal costs and lost executive and employee wages in dealing with TNT's claims, with the Respondent and with the Applicant's solicitors in relation to the matters [giving rise to the claim]". It may prove on an analysis of those claims that the costs were not incurred in relation to the investigations which the applicant undertook to ascertain what had happened and the advice it obtained in relation to rectification steps it was considering and/or implemented. However, that is not a matter with which I am concerned with at this point. Alternatively, the respondent may establish that such costs do not fall within the causation principles to which I have referred. It seems to me however, that on the prima facie basis upon which I must satisfied for the purposes of Order 8 rule 1: see State of Western Australia and Anor v Vetter Trittler Pty Ltd (in liq) (Receiver and Manager appointed) (1991) 30 FCR 102, the applicant has satisfactorily established that it had suffered damage within the jurisdiction by the incurring of these expenses. I am of the same view in respect of the claim for the cost of staff time. Counsel for the respondent submitted that such costs are normally part of the usual overheads of a business and "not recoverable and not divisible as specific costs or special damage". Whether that is so in this case is a question of fact for the trial judge. At the moment, the applicant's evidence is that it has incurred such costs and has thereby suffered loss. I consider that it has sufficiently established its case for the purpose of this application. Accordingly, I dismiss the notice of motion with costs. I certify that this and the preceding 16 pages are a true copy of the Reasons for Judgment of the Honourable Justice Beazley. Associate: Dated: 7 April 1995 APPEARANCES Counsel for the Applicant: Mr I.M. Jackman Solicitors for the Applicant: Messrs Phillips Fox Counsel for the Respondent: Mr Aitken Solicitors for the Respondent: Messrs Freehill Hollingdale & Page Dates of hearing: 27 February 1995