ANGUS & AUSTRALIAN MANUFACTURING WORKERS UNION v TOYOTA MOTOR CORPORATION AUSTRALIA LTD [1997] IRCA 174

DECISION NO:174/97 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - whether SERIOUS MISCONDUCT - whether honest belief held on reasonable grounds amounts to a VALID REASON - EVIDENCE - whether Jones v Dunkel inference to be made against respondent where witness was engaged in criminal activity and likely to refuse to assist Workplace Relations Act 1996 ss 170DE(1), 170DE(2), 170EDA(1), Evidence Act 1995 (Cth) s.38(1)(c) Briginshaw v Briginshaw (1938) 60 CLR 336 Sangwin v Imogen Pty Ltd (unreported, Industrial Relations Court of Australia, von Doussa J, 8 March 1996) Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 Victoria & Ors v The Commonwealth (1996) 66 IR 392 Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 Kerr v Jaroma Pty Ltd (unreported, Industrial Relations Court of Australia, Marshall J, 7 October 1996) Thomas v Ralph Lynch t/as Bellingen Grocery (unreported, Industrial Relations Court of Australia, Wilcox CJ, 20 December 1996) Westen v Union Des Assurances De Paris (unreported, Industrial Relations Court of Australia, Madgwick J, 17 December 1996) Yew v ACI Glass Packaging Pty Limited (unreported, Industrial Relations Court of Australia, Wilcox CJ, 11 December 1996) Gibson v Bosmac Pty Ltd (1995) 60 IR 1 Elvidge v Burswood Resort Management Limited (unreported, Industrial Relations Court of Australia, Ritter JR, 16 December 1996) Jones v Dunkel (1958-1959) 101 CLR 298 Fabre v Arenales (1992) 27 NSWLR 437 Johns v Gunns Limited (1995) 60 IR 258 DARYL ANGUS & AUSTRALIAN MANUFACTURING WORKERS UNION v TOYOTA MOTOR CORPORATION AUSTRALIA LTD No. VI 2743 of 1996 Before: Judicial Registrar Millane Place: Melbourne Date: 28 May 1997 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2743 of 1996 B E T W E E N : DARYL ANGUS & AUSTRALIAN MANUFACTURING WORKERS UNION Applicants A N D TOYOTA MOTOR CORPORATION AUSTRALIA LTD Respondent MINUTES OF ORDERS Judicial Registrar Millane 28 May 1997 THE COURT DECLARES THAT: 1. On 22 October 1996 the respondent terminated the employment of Daryl Angus in contravention of the provisions of the Workplace Relations Act 1996. AND THE COURT ORDERS THAT within 21 days of the date of making these orders: 2. The respondent reappoint Daryl Angus to the position in which he was employed immediately before his termination on 22 October 1996. 3. The employment of Daryl Angus be deemed to have been continuous for all purposes from 22 October 1996 to the date of reinstatement. 4. The respondent pay to Daryl Angus the remuneration lost by him because of the termination less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid. 5. In default of agreement on the sum to be paid, there be liberty to either party to apply to the Court on reasonable notice in respect to the calculation of the amount of the remuneration lost referred to in the preceding order. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2743 of 1996 B E T W E E N : DARYL KENNETH ANGUS & AUSTRALIAN MANUFACTURING WORKERS UNION Applicants A N D TOYOTA MOTOR CORPORATION AUSTRALIA LTD Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 28 May 1997 REASONS FOR JUDGMENT By an application filed on 22 October 1996 the applicant seeks reinstatement alleging that on 22 October 1996 his employment in the respondent's national parts warehouse was terminated in contravention of section 170DE(1) of the Workplace Relations Act 1996 (the Act). It is alleged by the respondent in defending the claim that the termination was justified by reason of the applicant's misconduct; namely, his knowledge of the part played in the arrangements made by others to steal parts from the respondent to the value of $235,000. The respondent did not seek to assert that reinstatement is impracticable in the event that the Court determines that the Act was contravened. THE WITNESSES The respondent called the following witnesses: - John Pacconi (Pacconi), the respondent's human resources adviser at the relevant time; - Sergeant Steven Victor Keogh (Sergeant Keogh), a police officer involved in the investigation of charges laid against Mendo Veljanovski and Norm Turner concerning the alleged theft of the respondent's parts; - Mendo Veljanovski (Veljanovski), the operator of the Quick Smart Service Station and the person charged by police for the alleged theft of parts; - Gary Browne (Browne), the respondent's Victorian parts distribution centre manager; and - Phillip Anthony Elkins (Elkins), the respondent's employee relations manager at the relevant time. The applicant gave evidence and called one other witness, Reno Muscat (Muscat), a storeperson employed by the respondent. THE EVIDENCE The applicant who is presently unemployed commenced employment with the respondent as a storeman in its national parts and distribution warehouse on 16 May 1996. His first day was devoted to an induction program for new employees. Although he could not recall whether the induction program covered details of the respondent's employee discount scheme for the purchase of parts, I am satisfied that he was, at the very least, given documentation relating to this scheme (Exhibits R8 and A4) and, on the evidence, it is more probable than not that the induction process contained some reference to the scheme. However, I am not satisfied that when the applicant met Veljanovski some months later he had a full understanding of how the discount scheme operated. When the applicant started work on 17 May 1996 Norm Turner (Turner) worked in the same bay, bay 7. At that time Turner was the union representative. It was common ground that at some time in July 1996 the applicant first met Veljanovski at a family outing on the Puffing Billy. At that time Veljanovski had been invited by one of the applicant's neighbours to attend the outing. It was agreed that there was little significant discussion between the two men on this occasion. Some weeks later the two men met again at a children's birthday party held by the same neighbour who invited Veljanovski to the earlier Puffing Billy outing. It was during this second meeting that there was discussion between the two men about what they both did. Veljanovski, at the relevant time, was the operator of the Quick Smart Service Station in Kensington. It is appropriate to note that in October 1996 Veljanovski was charged with a number of serious offences relating to the theft of some $235,000 worth of parts from the respondent. These charges arose out of a police investigation conducted by Sergeant Keogh on or about 15 October 1996. Veljanovski admitted the thefts and he, Turner and a courier driver all faced criminal charges arising out of the theft of the parts. The applicant was never charged by the police, although it was Sergeant Keogh who informed Browne in the early hours of 16 October 1995 after interviewing Veljanovski and Turner, who was not called to give evidence, that in Sergeant Keogh's opinion the applicant was aware that stolen parts were being taken from the respondent and sold to Veljanovski. When he was cross-examined Sergeant Keogh could not recall the details of the conversation he had with Veljanovski, during which conversation he claims Veljanovski told him that at a party he, Veljanovski, had indicated to the applicant that he was interested in buying some parts. It was Sergeant Keogh's evidence that Veljanovski told him that at the party there was mention of "hot" parts and Veljanovski expressed the belief to Sergeant Keogh that the applicant would have known that he and the applicant were talking about stolen parts. It is important to bear in mind, given the seriousness of the allegations made against the applicant, that at no stage during the evidence of the respondent's witnesses was there any specific allegation that the applicant actually discussed stolen parts other than the suggestion by Sergeant Keogh that Veljanovski told him there was mention of "hot" parts. When Veljanovski was formally interviewed by Sergeant Keogh a two page typed statement was taken at a time when the interview was being recorded (Exhibit R10). That statement was later signed by Veljanovski. The only reference to the applicant in the written statement is contained in the following sentences: "... I told Sergeant Keogh that I was buying heaps of stolen Toyota car parts from Norm Turner, I met a person by the name of Daryl who worked for Toyota. I mentioned to this Daryl, jokingly, about buying cheap parts, some time later Norm rang me." Apart from the abovementioned formal statement there was also a business card (Exhibit R9) with the applicant's name and mobile telephone number written on it by the applicant at the party. Norm Turner's name was also written on the card by Veljanovski at a date later than that on which the men met at the neighbour's party. The discussion that prompted Sergeant Keogh to call Browne and suggest that the applicant was aware that stolen parts were being taken and sold was held with Veljanovski outside the formal interview process and was not recorded because, according to Sergeant Keogh, Veljanovski did not want these matters to be included in his statement. It was said by Sergeant Keogh that Veljanovski definitely used the word "hot" yet he did not clarify the basis for any belief he held concerning the applicant's alleged knowledge of the illegal activities subsequently engaged in by Turner and Veljanovski. At the time Veljanovski allegedly made the record of interview it was common ground that he was facing serious criminal charges with the possibility of incarceration. He also had prior convictions for receiving stolen motor vehicles. Sergeant Keogh and the Toyota representatives, Browne and Pacconi, who also interviewed Veljanovski, confirmed that Veljanovski was very co-operative when interviewed and even offered to the Toyota representatives some restitution when they attended to question him specifically concerning the applicant's involvement in and knowledge of the criminal activities. When Veljanovski was interviewed on 18 October 1996 by Browne and Pacconi at Veljanovski's service station, the contents of their discussion were apparently noted by Pacconi and subsequently recorded in a typed file note (Exhibit R3). That file note records the following exchange between Pacconi and Veljanovski: "JP When you met Daryl Angus, how did you initially organise to get parts? MV Daryl said, I will put you onto a bloke but I don't want anything to do with it. I just then made calls to his mobile. JP We know Daryl met you at a party and you both discussed cheap parts, were they cheap parts or hot parts? MV I don't think he said hot parts but he did know they were cheap as in illegal. (Mendo made this statement gesturing in a frustrated way that both parties understood what was taking place)." Veljanovski was called to given evidence by the respondent. He told the Court that at the birthday party attended by both he and the applicant, they discussed whether the applicant could provide Veljanovski with some discount parts. However, in Court Veljanovski denied any reference to the phrase "hot parts". As a consequence the respondent sought, pursuant to section 38(1)(c) of the Evidence Act 1995 (Cth) to cross-examine its own witness. This application was not objected to and Mr McDonald, the respondent's counsel, cross-examined the witness specifically in relation to the discussion he had with the applicant. What emerged was that in giving his oral evidence Veljanovski indicated that he did not remember either the applicant saying "I will put you onto a bloke but I don't want anything to do with it", nor did he remember telling Pacconi the applicant said this. Moreover, Veljanovski could not recall telling Sergeant Keogh that the applicant would have known that the parts were stolen. The upshot of the oral evidence given by Veljanovski was that at the party Veljanovski took the applicant's telephone number and rang him on a number of occasions at his work to get in touch with Turner, whom Veljanovski says he has never met. Veljanovski told the Court he found out Turner's name through the courier driver and believed that Turner may have rung him directly. There was no evidence from Veljanovski either in his statements or orally to suggest that when he rang the applicant there was any discussion of stolen or hot parts. It seems that the principal reason for ringing the applicant at work was to make contact with Turner who at that stage did not have his own mobile phone and contact number but eventually obtained his own telephone and was contacted directly by Veljanovski on his own telephone, other than on one occasion when Veljanovski rang the applicant and asked him to leave a message for Turner to call him. When he was cross-examined by the applicant's counsel, Ms Richards, Veljanovski agreed with the proposition that at the birthday party the applicant had told him that he should give him (the applicant) a call if Veljanovski ever wanted cheap parts because the applicant might be able to get some for him. Veljanovski also agreed that a couple of weeks after the meeting he rang the applicant at work on the number he had been given at the party; telling the applicant that he had a part he needed and providing the applicant with a part number. Veljanovski also agreed that the applicant then said he did not know what he could do to assist Veljanovski but that he would speak to someone about it "... and see what the story was ...". The applicant then took Veljanovski's telephone number and subsequently Veljanovski received a telephone call from Turner. Veljanovski conceded in cross-examination that when he was interviewed by Pacconi and Browne he sought to co-operate with them in order to make the situation easier for himself and was, in effect, obliging them by telling them what they wanted to hear even though he then knew that the applicant had not known about what Turner and Veljanovski were up to. Given the sequence of events occurring and Veljanovski's evidence it is reasonable to conclude that he should not be treated as a person of truth, particularly in circumstances where at all times he had an interest in the outcome of the statements made to Sergeant Keogh and the Toyota representatives. It is more probable than not that when Veljanovski was interviewed he did seek to spread the blame and lessen some of the consequences of his own criminal activities by providing Keogh and the Toyota representatives with an ambiguous if not false picture of the applicant's understanding of the activities he and Turner were engaged in. By the date of the hearing before the Industrial Relations Court of Australia Veljanovski had pleaded guilty and sought to reduce the penalty by relying on the co-operation he provided the respondent's internal investigators with in this matter. He was convicted and received an eight month suspended sentence with an order for the payment of $5,000 in restitution. With the criminal proceedings behind him it is reasonable to concluded that there was no longer the imperative to implicate the applicant when giving his evidence on oath before the Industrial Relations Court of Australia. Consequently, it is likely that Veljanovski's responses at the hearing were as close to the truth as someone with his antecedents for dishonesty might come. The failure of Veljanovski to support any earlier statements he may have made implicating the applicant as well as the absence of any evidence from the former employee Turner, means that the respondent who carries the burden of proof has failed to persuade me that there was any objective basis for or justification for terminating the applicant on the ground of misconduct. When the applicant was interviewed by the respondent on 16 October 1996 at 8.55am and again at 10.40am, it was common ground that he was very upset by the allegation and denied any involvement. At that time he alleges he was not properly informed of the identity of his alleged accusers. At a third interview on 18 October 1996 the applicant was informed that the respondent believed that he "knowingly introduced Mendo Veljanovski to Norm Turner to obtain parts illegally ..." (see Exhibit R5). This allegation was denied although the applicant did agree that he had "... fleeting thoughts that something wasn't right ...". On 22 October 1996 the respondent terminated the applicant's employment during a final interview attended by two union representatives who accompanied the applicant. During this last interview the applicant was told (Exhibit R6): "Further to this, we have considered all information available to Toyota regarding this matter which again leads us to the conclusion that: • you facilitated the contact between the two parties (Mendo Veljanovski and Norm Turner) for the purpose of illegally obtaining parts. • as a consequence of this you assisted with parts leaving NPD illegally. • there is no suggestion by Toyota that you stole or obtained parts illegally." The applicant during the course of the last interview again denied any part in the theft and his union representatives asked for copies of statements of interview made by Veljanovski and Turner. The following exchange then ensued: "PH Can we obtain copies of statements of interviews by Mendo and Norm? JP As you have indicated in our last interview, you wish to take this to court. In this case, as part of that process you will have access to these statements then. Don't forget that you also have access to those people, you just have to go out and talk to them. PH So you won't give us copies now? JP No. PH How are we supposed to know what they said. JP To this point I have summarised what they have said and any questions in relation to this have been put to Daryl. Again I advise that you should possibly take steps to talk to them also. PH I am disappointed that the Company has not let us view the statements prior to entry to court. Based on the information we have, Daryl has not been party to removal of parts from Toyota or that he facilitated in any way." Given the serious allegations made by the respondent against the applicant in my view it was unreasonable for the respondent to deny the applicant or his representatives access to the copies of the statements it relied on to make the allegations it made. Turner's statement to the police was never produced in evidence to indicate what part or parts of that statement implicated the applicant at all. I was generally impressed by the applicant as a witness. If he is guilty of anything it appears to have been naivety and an attempt to ingratiate himself to Veljanovski by offering to obtain cheap parts presumably through the respondent's discount program for employees. That program on the evidence was one that was intended only to benefit employees and their immediate families, however, I am satisfied that the applicant was not really fully aware of the limitations on the supply of discount parts when he put Veljanovski on to Turner after Veljanovski made enquiries about obtaining a particular part by reference to a part number. Another factor influencing my decision in this case is that there is simply no evidence of any gain to the applicant from the extensive criminal activities engaged in by Turner and Veljanovski as well as the courier, who was not an employee of the respondent. The lack of any return to the applicant is consistent with his claim that he is innocent of any complicity in the offences committed. I have accepted Ms Richards' submission that in this case the allegations made against the applicant by the respondent amount to allegations of criminal activity and require me to be persuaded in the way described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 where Dixon J. said: "But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and the consequence of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal." The failure to justify the termination or provide a sound, defensible or well founded reason for termination leads to the conclusion that the respondent has contravened section 170DE(1) of the Act. In arriving at this conclusion I am conscience of the difficulty confronting the respondent where it had some representation from Veljanovski which may have provided a basis for believing that the applicant was aware of the criminal activity engaged in by Turner and Veljanovski. However, on Pacconi's evidence the respondent at no time had a representation from Turner that implicated the applicant. It was urged by Mr McDonald that the Court should follow the reasoning in the decision of Justice von Doussa in Sangwin v Imogen Pty Ltd (unreported, Industrial Relations Court of Australia, von Doussa J, 8 March 1996). There it was said that a mistaken but honest belief held on reasonable grounds after an enquiry of the type envisaged in Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 that an employee is guilty of serious misconduct could justify termination of employment. Sangwin's case was decided before the High Court handed down its decision in Victoria & Ors v The Commonwealth (1996) 66 IR 392 declaring, amongst other things, that section 170DE(2) of the Industrial Relations Act 1988 (the harsh, unjust or unreasonable provision) was invalid. Accordingly, when considering what might justify termination His Honour Justice von Doussa dealt with what was a valid reason first and went on to say that such a valid reason might nevertheless be harsh, unjust or unreasonable within the meaning of section 170DE(2) as it then applied. In arriving at his decision that there was no valid reason in the case before him, Justice von Doussa first found on the evidence that there was no substance to the allegation of theft and then decided that the level of investigation conducted was deficient before the employer in that case made its decision to dismiss the employee. He also found that the dismissal was disproportionate to the gravity of the offence alleged against the employee; this finding being consistent with a finding that the dismissal in any event was harsh, unjust or unreasonable. Following on from the High Court decision there have been a series of decisions of Judges of the Industrial Relations Court of Australia which all support the view that the phrase "valid reason" refers to a reason that must be justified on an objective basis and must be a reason that ensures that both parties to the employment contract receive a "fair go" (see Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, Kerr v Jaroma Pty Ltd (unreported, Industrial Relations Court of Australia, Marshall J, 7 October 1996), Thomas v Ralph Lynch t/as Bellingen Grocery (unreported, Industrial Relations Court of Australia, Wilcox CJ, 20 December 1996) and Westen v Union Des Assurances De Paris (unreported, Industrial Relations Court of Australia, Madgwick J, 17 December 1996)). In his decision in Yew v ACI Glass Packaging Pty Limited (unreported, Industrial Relations Court of Australia, Wilcox CJ, 11 December 1996) the Chief Justice Wilcox makes the following observation: "... The effect of s 170DE(1) is to make unlawful a termination of employment effected without a valid reason. If the termination comes before the Court, it is the duty of the Court to determine for itself whether, upon the balance of probabilities, there was a valid reason for the termination. It must do this by reference to the evidence. The Court is not concerned with the question whether, upon the information available to the employer, the conclusion reached by the employer was, or was not, a reasonable one. I agree that the Court "does not sit as an appeal" from the employer's decision; but only because the reference to an appeal implies that the Court is concerned to examine the employer's decision-making process. It is not. It is concerned to ascertain whether there was a valid reason for the conclusion that the employee's employment should be terminated. The Court does this for itself, and on the basis of the evidence of the primary facts placed before it." In my view the appropriate approach to take to the decision in Sangwin's case is that His Honour Justice von Doussa was, as the other Judges of the Industrial Relations Court of Australia have done before and since, attempting to interpret the legislative provisions in a practical and common sense way to ensure a fair outcome for both the employer and the employee (see, in particular, Westen's case and Gibson v Bosmac Pty Ltd (1995) 60 IR 1). Notwithstanding the approach taken by Justice von Doussa I am nonetheless of the view that, having regard to the numerous authorities in the Industrial Relations Court of Australia, a mistaken but honest belief of an employer who conducts a detailed investigation of allegations concerning the employee's conduct or performance, is not an appropriate basis for determining that the employer has discharged the burden of proof it carries pursuant to section 170EDA(1) of the Act (see Elvidge v Burswood Resort Management Limited (unreported, Industrial Relations Court of Australia, Ritter JR, 16 December 1996) for a detailed analysis of many of the authorities on this issue). This is because it is not the role of the Court to determine whether the employer has acted reasonably or to focus only on whether the decision to terminate is defensible from the employer's point of view. Rather, in determining whether there was a valid reason for termination, the Court must determine whether objectively speaking there were facts which existed at the date of termination to substantiate the decision to terminate. If, on the balance of probabilities those facts were not present, then the termination must be viewed as being unfair in all the circumstances of the case. If I am wrong in my interpretation of the differences between Sangwin's case and the decisions of the Court, particularly since the handing down of the High Court decision, then in my view the employer in the case before me failed to conduct a detailed investigation of the circumstances relevant to its reasons for dismissal. On Pacconi's evidence there was no statement from Turner implicating the applicant. The police saw no basis for interviewing or charging the applicant in relation to a significant theft. The reason the applicant came to the attention of the police is because of the existence of the business card with the applicant's name and telephone number on it. In my view this is a case where the employer appears to have acted on suspicion and to have relied on ill-defined statements from one of the criminal participants in a major theft who, at the relevant time, clearly understood that the respondent's representatives were seeking to implicate the applicant. With regard to the proofs brought before the Court both parties asked the Court to draw an adverse inference from the failure of the other party to call Turner to give evidence. It is the respondent who at all times carried the burden of establishing the existence of a valid reason. Turner was a relevant witness who could give evidence in relation to material facts the party with the burden of proof needed to establish. Turner is no longer employed by the respondent. None of the respondent's witnesses gave evidence about any attempts being made to locate and call Turner to Court. Nevertheless it is reasonable to assume that Turner, like Veljanovski, would not be a co-operative witness given the circumstances of this case. In its decision in Fabre v Arenales (1992) 27 NSWLR 437, the Court of Appeal in considering whether the absence of a witness may support a Jones v Dunkel (1958-1959) 101 CLR 298 inference pointed to the example of a witness with a criminal record as being a case where there may be lack of co-operation and a reason for not telling the truth or refusing to assist. Even though there was no evidence from the respondent's witnesses on these matters, I am satisfied that the circumstances of this case militate against any Jones v Dunkel inference arising. In view of my findings I propose to make orders reinstating the applicant to his former position with the respondent. The remuneration lost should be calculated by reference to the principles established by Justice Northrop in his decision in Johns v Gunns Limited (1995) 60 IR 258 and without reference to any unemployment benefits paid to the applicant. Should the parties fail to agree on the appropriate sum payable liberty to apply is reserved to each party to enable the Court to finalise the quantum of the payment required. MINUTES OF ORDERS THE COURT DECLARES THAT: 1. On 22 October 1996 the respondent terminated the employment of Daryl Angus in contravention of the provisions of the Workplace Relations Act 1996. AND THE COURT ORDERS THAT within 21 days of the date of making these orders: 2. The respondent reappoint Daryl Angus to the position in which he was employed immediately before his termination on 22 October 1996. 3. The employment of Daryl Angus be deemed to have been continuous for all purposes from 22 October 1996 to the date of reinstatement. 4. The respondent pay to Daryl Angus the remuneration lost by him because of the termination less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid. 5. In default of agreement on the sum to be paid, there be liberty to either party to apply to the Court on reasonable notice in respect to the calculation of the amount of the remuneration lost referred to in the preceding order. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding fourteen (14) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 28 May 1997 Representative for the Applicant: Australian Manufacturing Workers Union Counsel for the Applicants: Ms M. Richards Solicitors for the Respondent: Freehill Hollingdale & Page Counsel for the Respondent: Mr M. McDonald Date of hearing: 18 April 1997 Date of judgment: 28 May 1997