DECISION NO:186/97 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT -Review of Judicial Registrar's decision - Application for extension of time - Termination of employment without giving reasonable period of notice - Whether termination of employment was for a valid reason - Whether decision to terminate employment based on irrelevant considerations Industrial Relations Act (1988) Victoria v Commonwealth (1996) 138 ALR 129 Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) 61 IR 412 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Peter Vel v The Human Rights and Equal Oppotunity Commission (unreported, Federal Court of Australia, 16 April 1997) Kenefick v Australian Submarien Corporation Pty Ltd (No.2) (1996) 65 IR 366 Perrin v Des Taylor Pty Ltd (1995) 58 IR 254 Grout v Gunnedah Shir Council (1994) 125 ALR 355 Davis v Portseal Pty Ltd (unreported, Industrial Relations Court of Australia, 10 April 1997) May v Lilyvale Hotel Pty Ltd (1995) 68 IR 112 Brown v Power (1996) 66 IR 1 Shackley v Australia Croatian Club Ltd (1996) 141 ALR 736 Shackley v Australia Croatian Club Ltd (unreported, Industrial Relations Court of Australia, 24 April 1997) No. NI 4174R of 1995 LEISA JANE MOONEY V W & B MORIESON PTY LTD MOORE J SYDNEY 5 JUNE 1997 IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 4174R of 1995 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: Leisa Jane MOONEY Applicant AND: W & B MORIESON PTY LTD Respondent JUDGE: Moore J PLACE: Sydney DATE: 5 June 1997 ORDER OF THE COURT THE COURT ORDERS THAT: 1. The time for filing of the application be extended to 27 October 1995. 2. Order 2 of the orders of the Judicial Registrar made on 30 April 1996 be varied by substituting the sum of $6,000 for $5,460. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 4174R of 1995 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: Leisa Jane MOONEY Applicant AND: W & B MORIESON PTY LTD Respondent JUDGE: Moore J PLACE: Sydney DATE: 5 June 1997 REASONS FOR JUDGMENT On 26 October 1995 Ms Leisa Mooney lodged an application under s 170EA of what was then entitled the Industrial Relations Act 1988 ("the Act") alleging that her employment with W & B Morieson Pty Ltd ("the Company") had been terminated on 20 September 1995 in contravention of provisions of the Act. The application was heard and determined by a Judicial Registrar who, on 22 April 1996, determined that the termination of Ms Mooney's employment involved a contravention of s 170DB, s170DC, s 170DE(2), s 170DF(1)(a) and s 170DF(1)(e). The Judicial Registrar determined there had been no contravention of s 170DE(1). The Judicial Registrar ordered the Company pay Ms Mooney $420 damages for contravention of s 170DB(2) and compensation under s 170EE(3) of $5,460. The Company sought a review under s 377 of the Act of the determination of the Judicial Registrar. While a review is a hearing de novo, it was agreed that it be conducted by reference to the evidence before the Judicial Registrar, that is, "on the papers". The hearing of the review was on 12 February 1997. Section 170DE(2) no longer has relevance as it is not a valid law of the Commonwealth: see Victoria v Commonwealth (1996) 138 ALR 129. The following are the relevant facts, though I will later deal expressly with several contentious issues concerning matters of detail. The Company traded under the business name of Warwick Morieson Optometry. As that name implies, it provided optometry services and the principal of the business was Mr Warwick Morieson. It carried on business in two locations in Sydney, one at Chatswood and the other in the city. Ms Mooney commenced employment as a receptionist/assistant on 21 September 1994 working at both practices. In November 1994 another receptionist, Ms Gurney, was employed by the Company to replace a receptionist who was leaving. On 30 March 1995, Ms Mooney injured her ankle while travelling home from work and was, for a period, incapacitated. She underwent a program of rehabilitation and recommenced working on 12 July 1995, though only at the city practice and her duties were limited. On 5 August 1995 she received a letter signed by Mr Morieson, dated 3 August 1995, informing her that her employment would be terminated on 2 September 1995. The letter made clear that this was necessary because the Company was selling the Chatswood practice, the sale would be completed "near the end of the month" and that the purchaser was making their own arrangements about staff. On 23 August 1995, Mr Morieson informed Ms Mooney that the sale of the Chatswood practice had been delayed and her employment would be extended by two weeks. On that date a reference was written for her by Mr Morieson in generally positive terms. On 28 August 1995 the Federated Clerks Union of Australia, New South Wales Branch, filed an application under New South Wales legislation concerning the alleged unfair dismissal of Ms Mooney seeking an order that the threatened dismissal not occur and seeking compensation in the sum of $10,946.00. The Judicial Registrar found that Mr Morieson became aware of the application before 2 September 1995. It appears to have been an uncontentious fact found by the Judicial Registrar that in mid September 1995 the settlement date for the sale of the Chatswood practice was agreed to be 22 September 1995. It also appears to have been an uncontentious fact found by the Judicial Registrar that after that settlement date had been decided upon, Mr Morieson told Ms Mooney she could work in the week commencing 18 September 1995 and, in due course, she was rostered to work on Tuesday 18 September, Wednesday 20 September and Friday 22 September 1995. On Tuesday 19 September 1995, Mr Morieson raised with Ms Mooney the proceedings under New South Wales law and Ms Mooney described him as having been extremely angry. This was not put in issue by Mr Morieson in his evidence. On 20 September, Mr Morieson and Ms Mooney had a further conversation. The Judicial Registrar found that Mr Morieson requested Ms Mooney change her rostered working day from the Friday to the Thursday and finish her employment on the Thursday. The Judicial Registrar noted that the Thursday was the first anniversary of her employment. The Judicial Registrar also appears to have found that Ms Mooney responded to the request by saying she had an appointment with a physiotherapist which she could not change. The Judicial Registrar found Mr Morieson then said the "you are finishing at 2:00pm. You can't work for me tomorrow and I don't need you on Friday, so you might as well finish up now." The Judicial Registrar concluded that this constituted a termination of Ms Mooney's employment at the initiative of the Company. On 21 September 1995, Ms Mooney saw a doctor who certified she was suffering from a respiratory tract infection and "will be/was unfit for work up to and including the 21/9/96". On Friday 22 September 1995 Ms Mooney attended the offices of the Company and received outstanding pay. It did not include any payment for notice. The settlement of the sale of the Chatswood practice did not take place that day. It had been deferred to 30 September and then 9 October 1995. It did not proceed on either day and settlement was ultimately effected on 1 December 1995. On 11 October 1995 the Company placed an advertisement in the paper seeking a receptionist. When asked why he had not contacted Ms Mooney to see if she wanted the job, Mr Morieson said that "it was (his) understanding at the time she was taking (him) to court and claiming $10,000". A receptionist was appointed on 23 October 1995 and continued working for the Company till approximately 15 December 1995. Extension of time The application under s 170EA was filed on 26 October 1995. At that time s 170EA provided that an application must be made within 14 days after the employee receives written notice of the termination or within such further period as the Court might allow. Counsel for the Company submitted that the letter of 3 August 1995 constituted written notice of the termination or, alternatively, that the separation certificate given to the applicant on 22 September 1995 constituted written notice of the termination. It was submitted that, on either approach, the application was filed more than 14 days after receipt of that written notice. Counsel for Ms Mooney submitted that neither is written notice, for the purposes of s 170EA. He went on to submit that even if either was written notice, time should be extended in the circumstances. It appears the Judicial Registrar took the view that it was not necessary to extend time because there had been no written notice received by Ms Mooney. It was in those circumstances that he went on, in substance, to decide her application in her favour, which has given rise to this review. Counsel for the Company submitted that in the absence of an adequate explanation for the delay, the discretion to extend time should not be exercised in favour of Ms Mooney. I am prepared to assume that written notice was received by Ms Mooney and that 14 days elapsed after its receipt before the application was lodged under s 170 EA. However, notwithstanding the submission of counsel for the Company to the contrary, this, in my opinion, is a case where the discretion to extend time should be exercised in favour of Ms Mooney. It was submitted by counsel for the Company that it is necessary for Ms Mooney to show an acceptable explanation for the delay: see Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) 61 IR 412 at 415. This approach has its recent origins in the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348. However it is not necessary in all cases for there to be an acceptable explanation before time is extended. This is illustrated by the observations of Branson J in Peter Vel v The Human Rights and Equal Opportunity Commission (unreported, Federal Court of Australia, 16 April 1997). Her Honour set out the principles enunciated by Wilcox J in Hunter Valley Developments Pty Ltd (supra) and then said: "Hill J in Kim Hyun Tai v Bolkus (1996) 42 ALD 249 at 252 noted that the first of Wilcox J's guidelines requires modification since the Full Court decision of Comcare v A'Hearn (1993) 119 ALR 85; that is, that it is possible that the justice of a particular situation might require an extension of time even when the applicant fails to give an explanation for the delay. Justice Hill in Kim Hyun Tai v Bolkus at 252 stated: "Certainly it may be expected that an explanation will be given and the strength or otherwise of that explanation will be a relevant matter to be considered. So, too, would failure to give any explanation at all. But I would not wish to foreclose the possibility that the justice of allowing an extension of time was so great that failure to give an explanation operated to disentitle an applicant [sic] for review." While there is no evidence of an explanation, in the sense of direct evidence as to why Ms Mooney took the time she did to lodge the application, there is evidence that on 28 August 1995 proceedings were commenced under state law by a trade union acting on her behalf. I think it might reasonably be inferred that the commencement of those proceedings distracted the applicant's attention from her rights under federal law. However even if such an inference cannot reasonably be drawn, I nonetheless consider that in the circumstances of this case time should be extended. It would appear that neither party insisted on the issue of extension of time being determined by the Judicial Registrar as a threshold matter. Accordingly, there were two days of hearing before the Judicial Registrar that, as earlier noted, have given rise to this review. Costs have been incurred on Ms Mooney's part in prosecuting her application before the Judicial Registrar and defending, in the review, the outcome she achieved before him. The delay in filing the proceedings under s 170EA was not great and the Company was plainly on notice that her ultimate termination might give rise to litigation. I propose to order that the time for filing of the application under s 170EA be extended to 27 October 1995. Alleged contravention of S 170DB Section 170DB precludes an employer from terminating an employee's employment unless the employee has been given a minimum period of notice which varies depending on the employee's period of continuous service. This qualification of the employer's right to terminate does not arise if the employee is guilty of serious misconduct. That proviso has no relevance in the present proceedings. Section 170DB does not require written notice and it serves an entirely different purpose to the provision in s 170EA concerning written notice which I have just discussed. Section 170DB provides: " (1)An employer must not terminate an employee's employment unless: (a) the employee has been given either the period of notice required by subsection (2), or compensation instead of notice; or (b) the employee is guilty of serious misconduct, that is, misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period. (2) The required period of notice is first worked out using this table: Employee's period of continuous service with the employer Period of notice Not more than 1 year At least 1 week More than 1 year but not more than 3 years At least 2 weeks More than 3 years but not more than 5 years At least 3 weeks More than 5 years At least 4 weeks The period of notice is increased by one week if the employee is over 45 years old and has completed at least 2 years continuous service with the employer." What is unclear from the terms of s 170DB is whether the employer's obligation is to inform the employee of the fact of an impending termination at least within the period specified or whether the employer is obliged to inform the employee not only of the fact of impending termination but also the date at which the termination will take effect. I draw this distinction because, in my opinion, the Company had made Ms Mooney aware by the letter of 3 August 1995 of the fact of impending termination though, as events transpired, the actual date it took effect was some time later than then anticipated. The Judicial Registrar determined that the termination took place on Wednesday 20 September 1995 and there is no basis evident to me why that finding should be disturbed. However it is plain from the evidence that apart from the conversation that took place on that day, Ms Mooney had not been earlier informed that her employment would be terminated on 20 September 1995. Thus the distinction I earlier drew is of significance in the present proceedings. The answer, in my opinion, is to be found in the Convention Concerning Termination of Employment at the Initiative of the Employer, which is Schedule 10 to the Act, and the Recommendation Concerning Termination of Employment at the Initiative of the Employer which is Schedule 11. As is made plain by s 170CA, Division 3 of Part VIA is designed to give effect to both the Convention and the Recommendation. Article 11 of the Convention provides: "DIVISION D PERIOD OF NOTICE A worker whose employment is to be terminated shall be entitled to a reasonable period of notice or compensation in lieu thereof, unless he is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue his employment during the notice period." The reference to "notice period" implies, in my opinion, that the giving of notice results in the identification of a defined period. Necessarily that would involve the identification of the date upon which termination is to be effected. This construction of Article 11 is reinforced by Article 16 of the recommendation. It provides: "Time Off From Work During the Period of Notice 16 During the period of notice referred to in Article 11 of the Termination of Employment Convention, 1982, the worker should, for the purpose of seeking other employment, be entitled to a reasonable amount of time off without loss of pay, taken at times that are convenient to both parties." Again there is a reference to "period of notice" which implies some defined period between the time notice is given and the time the employment is terminated. In my view s 170DB should be construed as requiring an employer to identify a time at which the termination will be effected. The obligation is to do so at least within the periods identified in s 170DB(2). It may be, that in appropriate cases, the de minimus principle would apply. It does not, in my opinion, in this case. Apart from what was said to her on 20 September 1995, Ms Mooney had not been given prior notice that her employment would terminate on that day. Accordingly the Company has failed to comply with s 170DB and Ms Mooney is entitled to damages under s 170EE(5) equivalent to the compensation she was entitled to under s 170DB, namely, one week's wages. Alleged Contravention of s 170DC Counsel for Ms Mooney submitted that there had been contravention of s 170DC because when the decision was originally made in August 1995 to terminate Ms Mooney's employment, it involved the Company retaining in employment another employee in preference to Ms Mooney. So much was conceded by counsel for the Company. In issue was whether, in preferring the other employee, Ms Gurney, contravention of s 170DC resulted. It is to be remembered that the Company was selling only the practice at Chatswood. It had, during 1995, employed both Ms Gurney and Ms Mooney as receptionists to meet the needs of the two practices located in different parts of Sydney. Other receptionists were also employed but those details are not presently relevant. Evidence was given by Mr Morieson about the way he made the choice. The following appears in the transcript of 25 March 1996: "Did you make a decision as to whom you would prefer to stay after only one receptionist position became available? --- Yes. Who was that? --- Melinda Gurney. Why was that? --- She was better, more efficient, more intelligent, and she was doing a TAFE course which was going to help me with another venture I was conducting." Thus, the preference was made by reference to four criteria. Intelligence, being "better", efficiency and the studies being undertaken. The other venture involved the management of sports people which was to be undertaken by a company separate from the Company. Section 170DC(a) provides: "An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless: (a) the employee has been given the opportunity to defend himself of herself against the allegations made." In Kenefick v Australian Submarine Corporation Pty Ltd (No.2) (1996) 65 IR 366 the Full Court made clear that when s 170DC(a) speaks of the reasons for termination, it is speaking of the reasons for the individual termination. Thus, in the present case, it is necessary to look at the reasons for the individual termination of Ms Mooney's employment. The need to terminate the employment of one receptionist arose because of the decision of the Company to sell the Chatswood practice. However, the reason for the selection of Ms Mooney, and thus the termination of her employment, was that the Company viewed her as a less valuable employee than Ms Gurney. The reasons for terminating her employment related to the perceived attributes of Ms Gurney when compared to Ms Mooney. I accept that it would be an unwarranted expansion of the intended effect of s 170DC to require an employer to raise with an employee, who might be dismissed in these circumstances, a perceived difference in intelligence, at least when there was a reasonable objective basis for the conclusion that one employee was more intelligent than another. However the same cannot be said of attributes which might be comprehended by the word "better" or by the words "more efficient". The TAFE qualification appears to me probably to have been an irrelevant matter for the Company to have considered in determining whether it should continue of one or other of the receptionists if it related only to a business that another company, might, in the future, undertake. This might not be so, however, if the Company was to have an interest in that business. Section 170DC addresses, in my opinion, the conduct or performance of the employee as it relates to the activities of the employer contemplating termination. In Perrin v Des Taylor Pty Ltd (1995) 58 IR 254 at 256 I discussed the purpose of s 170DC. I said: "Its purpose is at least twofold. It is to give the employee the opportunity to demonstrate that the allegations have no foundation in fact or they should not be viewed as reflecting on the employee's capacity... A second purpose of s 170DC is that an employee with whom an allegation has been raised may be able to persuade the employer that, while the allegation is of substance, there are factors that should persuade the employer not to terminate the employment. They may be extenuating personal circumstances or they may involved undertakings about future conduct." In my view the Company was obliged to raise with Ms Mooney the factors that founded the opinion that Ms Gurney was better and more efficient. This should be done in circumstances where there is a selective retention of some employees and the termination of the employment of others: see Kenefick (supra). Had the Company done so, Ms Mooney may have been able to persuade the Company, for one or a number of the reasons discussed in Perrin (supra), that she should be preferred to Ms Gurney. Accordingly I conclude that the Company has contravened s 170DC. Alleged contravention of s 170DE(1) The Judicial Registrar concluded that the Company had a valid reason for terminating the employment of Ms Mooney because it was "genuine in (its) attempt to sell the Chatswood business". The Company relied upon this conclusion in the review. Implicit in the conclusion of the Judicial Registrar, and its adoption by the Company, was that the operational requirements of the Company flowing from the sale of the Chatswood practice, provided a valid reason for the termination of Ms Mooney's employment. The Company did not submit that Ms Mooney's employment was terminated because of her capacity or conduct and did not, as a subsidiary submission, contend that her termination was for these reasons. It may well have refrained from doing so because of the implications for it concerning the operation of s 170DC. I do not share the view of the Judicial Registrar about the effect of s 170DE(1) in the circumstances of this case. The employer bears the onus of establishing that there was a valid reason of the type referred to in s 170DE(1): see s 170EDA. It is to be recalled that the employment of Ms Mooney was terminated on the afternoon of Wednesday 20 September 1995. She had been rostered to work on Friday 22 September 1995 which was the day the sale was to be settled. It was not until the Friday that Mr Morieson became aware that settlement would not take place that day. The Company has not established that a receptionist would not have been needed on Friday 22 September 1995 if Ms Mooney had not worked that day but had worked on Thursday 21 September 1995 as she was requested to do on the Wednesday afternoon. It is true that Mr Morieson said that he had asked her to work on the Thursday because he did not need her on the Friday. That was so because he was going to be at Chatswood on the Friday. However this evidence does not, in my opinion, sustain an inference that a receptionist was not needed in the city at all on the Friday. The Judicial Registrar points to the fact that the Thursday was the anniversary of her employment which, potentially, had implications on the obligations of the Company under s 170DB. It is unnecessary for me to draw the inference that this was a matter that motivated Mr Morieson to propose a change to the last working day of Ms Mooney. I say that because, as just noted, the Company must demonstrate there was a valid reason. Had Ms Mooney's employment not been terminated on 20 September 1995 and had she worked on Friday 22 September 1995, it would have been then apparent that settlement was not to proceed and her employment might continue at least in the short term. Thus the Company has not demonstrated that on the afternoon of Wednesday 20 September 1996 there existed a valid reason having regard to the operational requirements of the Company that her employment should end that afternoon. Alleged contravention of s 170DF Section 170DF(1) prohibits an employer from terminating the employment of an employee for enumerated reasons or for reasons which included one or more of the enumerated reasons. The reasons include temporary absence from work because of illness or injury, physical and mental disability, or the filing of a complaint against an employer involving alleged violation of laws. Again s 170EDA imposes on an employer the onus of demonstrating that the alleged reason was not a reason. Thus it is necessary for the Company to demonstrate that the reason or reasons for terminating Ms Mooney's employment did not include one of the alleged reasons. There is evidence that suggests, at least arguably, that each of the reasons referred to by Ms Mooney constituted a reason, even if only a reason among a number, for the termination of her employment. The termination on Wednesday 20 September 1996 was because Ms Mooney could not meet the request made by Mr Morieson to work on Thursday 20 September 1996. This was because she had to see a physiotherapist to treat the ankle she injured when going home from work. She could not change the appointment. She would thus have been absent from work on the Thursday had Mr Morieson not insisted she work that day. It was her absence, in prospect, that was a reason that led to the termination of her employment. Arguably this is comprehended by s 170DF(1)(a) and 170DF(1)(e) if the provisions are liberally construed as beneficial legislation: see Grout v Gunnedah Shire Council (1994) 125 ALR 355. However this is a matter I need not determine conclusively, given the view I have formed about the contravention of other provisions of Part 3 of Division VIA. As to the alleged contravention of s 170DF(1)(e), the Company has not established that this was not a reason for Ms Mooney's termination among a number of reasons. On Monday 19 September 1995, Mr Morieson had been angry about the proceedings that had been instituted on Ms Mooney's behalf. Within the next week or so, Mr Morieson elected not to call Ms Mooney to ask her to return to work. By his own account that decision was made because the proceedings were on foot. These facts would, in my opinion, sustain an inference that the initiation of the proceedings under state law were a reason for the termination of her employment on 20 September 1995. However, I need not go that far. The Company has not established it was not. It contravened s 170DF(1)(e) in terminating Ms Mooney's employment on Wednesday 20 September 1995. Amount of Compensation There was an issue about the way in which the Judicial Registrar calculated the compensation ordered to be paid to Ms Mooney. The proper approach to the assessment of compensation has recently been addressed by a Full Court in Davis v Portseal Pty Ltd (unreported, Industrial Relations Court of Australia, 10 April 1997). The Full Court endorsed the approach of Wilcox CJ in May v Lilyvale Hotel Pty Ltd (1995) 68 IR 112. The Full Court said: "As was said in May v Lilyvale Hotel Pty Ltd (1995) 68 IR 112, 118: "...the proper approach is for the person assessing compensation, first, to assess the appropriate amount of compensation in the light of all relevant circumstances ... but disregarding the cap; secondly to consider whether that amount exceeds the permissible maximum award and, if so, thirdly to reduce the assessed amount accordingly ..." The cap referred to is that arising from the operation of s 170EE(3)(a). At the time of the termination of Ms Mooney's employment her income was $420 per week. The workers' compensation insurer paid her a sum of $300 per week up to 27 November 1995. That is a matter to be taken into account in assessing compensation: see Brown v Power (1996) 66 IR 1 at 6-7. Another relevant consideration is that the work available for two receptionists ended, at the latest, in mid December 1995. Thus, on one view, Ms Mooney's employment would have been terminated at that time in any event. However allowance must be paid to the contravention of s 170DC. It was not inevitable, in my opinion, that had Mr Morieson raised with Ms Mooney what he perceived to be her deficiencies when compared to Ms Gurney, that he would nonetheless decided to terminate her employment, at least for a reason that was lawful. Accordingly there was a prospect, albeit a limited one, that her employment would have continued beyond mid December 1995 into the new year on the basis that she, rather than Ms Gurney, was the preferred person to remain in ongoing employment. Taking these various matters into account, I have concluded that compensation in the sum of $6,000 should be ordered. Costs Counsel for Ms Mooney seeks an order that the Company pay her costs in the review. Such an order may be made in a review: see Shackley v Australia Croatian Club Ltd (1996) 141 ALR 736 though the power to make such an order is still subject to the limitations imposed by s 347. In my opinion, it can not be said that the review was brought vexatiously or without reasonable cause. For reasons I explained in Shackley v Australia Croatian Club Ltd (unreported, Industrial Relations Court of Australia, 24 April 1997) it is unlikely that an application for review will be stigmatised as vexatious. Some of the points sought to be argued by the Company in the review were reasonably arguable and, it cannot be said, in my opinion, that the review was brought without reasonable cause. Accordingly I do not propose to make any order as to costs. I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Alexandra George Dated: 5 June 1997 APPEARANCES Counsel for the Applicant: Mr P J Newall Solicitor for the Applicant:Argyle Partners Counsel for the Respondent: Mr M Christie Solicitor for the Respondent: Helliars Dates of Hearing: 12 February 1997 Date of Judgment: 5 June 1997