Love v AFL Canberra Limited and the Members of the Disputes Tribunal of AFL Canberra Limited [2009] ACTSC 135 (4 September 2009)

Last Updated: 26 October 2009

DAVID LOVE v AFL CANBERRA LIMITED AND THE MEMBERS OF THE DISPUTES TRIBUNAL OF AFL CANBERRA LIMITED
[2009] ACTSC 135 (4 September 2009)

ADMINISTRATIVE LAW – application for injunction – decision of domestic tribunal – whether natural justice afforded – failure to provide accused with evidence.

Corporations Act 2001 (Cth), s 140(1)
Acts Interpretation Act 1901 (Cth), s 33(3)
Legislation Act 2001 (ACT), s 46

Forbes J R S, Justice in Tribunals (2nd ed, Federation Press, 2006)
Dal Pont G E & Chalmers D R C, Equity and Trusts in Australia (3rd ed, Lawbook Co, 2004)

Australian Football League & Ors v Carlton Football Club Ltd & Anor [1998] 2 VR 546
Eastham v Newcastle United Football Club Ltd [1964] Ch 413
Pharmaceutical Society of Great Britain & Anor v Dickson [1970] AC 403
Enderby Town Football Club Limited v Football Association Limited [1971] Ch 591
Buckley v Tutty [1971] HCA 71; (1971) 125 CLR 353
Hall v Victorian Football League and Anor [1982] VR 64
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100
Castlemaine Tooheys Ltd & Ors v State of South Australia [1986] HCA 58; (1986) 161 CLR 148
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Mensinga & Anor v Director of Public Prosecutions [2003] ACTCA 1

EX TEMPORE JUDGMENT

No. SC 772 of 2009

Judge: Refshauge J
Supreme Court of the ACT
Date: 4 September 2009

IN THE SUPREME COURT OF THE )
) No. SC 772 of 2009
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DAVID LOVE

Applicant

AND: AFL CANBERRA LIMITED

First Defendant

AND: THE MEMBERS OF THE DISPUTES TRIBUNAL OF AFL CANBERRA LIMITED

Second Defendant

ORDER

Judge: Refshauge J
Date: 4 September 2009
Place: Canberra

THE COURT ORDERS THAT:

Upon the plaintiff giving an undertaking as to damages:

1. Until the hearing of the proceedings in this matter or further orders, the first defendant be restrained from giving effect to the decision of the Disputes Tribunal given on 1 September 2009.
2. The costs of this application be reserved.
   
1. The plaintiff, David Love, is a paid football player under a contract to the Ainslie Football Club. On Sunday 23 August 2009 he played in the first grade team for that club in a preliminary semi-final match against the team of the Queanbeyan Tigers Football Club.
2. During the game, it was subsequently alleged, Mr Love “looked directly at player 33 from Queanbeyan and forcefully directed an elbow at that Queanbeyan players [sic] head region” which “felled him to the ground”.
3. On the following Tuesday 25 August 2009 the Queanbeyan Tigers Football Club delivered to the General Manager of AFL Canberra Limited what is known as a “citation”, in effect making a complaint about this conduct.
4. In circumstances to which I will refer below, the Disputes Tribunal of AFL Canberra Limited considered the matter and on 1 September 2009 imposed a penalty of an eight week suspension on Mr Love, effectively preventing him from playing football in matches from that date and in particular in the grand final that weekend.
5. Mr Love commenced these proceedings to set aside that penalty on several grounds including that the Disputes Tribunal had no jurisdiction. Such a hearing could not be conducted prior to the weekend so Mr Love seeks an interim injunction to restrain the defendant from preventing Mr Love from playing football until the court can determine these proceedings.

Jurisdiction

6. Courts are loathe to interfere in the affairs of voluntary associations such as AFL Canberra Limited and especially their domestic tribunals: see Australian Football League & Ors v Carlton Football Club Ltd & Anor [1998] 2 VR 546 (at 549). I will refer to that decision in these reasons as AFL v Carlton.
7. As Dr J R S Forbes put in his book, Justice in Tribunals (2nd ed, Federation Press, 2006) (at p 20):

A person seeking judicial review of a decision of a voluntary association must frame the grievance as a recognised form of civil action - breach of trust, breach of contract or (since the 1960s) unreasonable restraint of trade ...

Decisions by voluntary associations and their domestic tribunals derive any legal status that they possess from the terms of a trust or a consensus of their members for the time being. It is inappropriate to challenge such decisions by prerogative writ or similar public law process. If the dispute is justiciable the proper course is to commence a civil action or to invoke any special legislation that provides a statutory right of appeal. (footnotes omitted)

8. AFL Canberra Limited is apparently a corporation under the Corporations Act 2001 (Cth) and as such the rules that it has and makes are a contract between its members: s 140(1) of the Corporations Act 2001 (Cth).
9. I have, however, no evidence of whether Mr Love is a member of AFL Canberra Limited such that he is a party to the contract, a matter that might need to be considered in a full hearing of these proceedings.
10. Nevertheless the courts will interfere in the decisions of private or domestic tribunals where private rights have, in some circumstances, been held worthy of protection. As Tadgell JA of the Victorian Court of Appeal said in AFL v Carlton (at 550):

the courts have been disposed to interfere in a limited way with decisions of private or domestic tribunals in order to protect private rights that have been adjudged to deserve protection, including rights in property. The concept of property has been broadly interpreted for this purpose and, in cases within that category I believe that there are no decisions of a private or domestic tribunal with which the courts will refuse to interfere if interference be considered necessary for the attainment of justice. If a tribunal’s decision purports to owe its binding quality, for example, to a contract or a trust, the courts exercising jurisdiction in respect of contracts and trusts will recognise that the making of the decision is to be consonant with the contract or trust before it is binding. If it is not so consonant a declaration may be made accordingly and any appropriate injunction granted upon the suit of an aggrieved person whom the tribunal’s decision wrongly purports to bind. If there is no express contract supporting the decision of a tribunal which purports to be binding the courts will in an appropriate case imply one and again the decision may be declared by the courts to be ineffective to the extent to which it is inconsistent with what the courts take to be a consensual arrangement entered into by the party whom the Tribunal’s decision purports to bind.

11. There are various bases on which the courts may adjudge a decision of a domestic tribunal to be inconsistent with an express or implied contract, trust or other arrangement, or whatever consensual basis it is upon which the decision must depend for its binding quality.
12. If, for example, the effect of the decision is unreasonably in restraint of trade the courts will declare it invalid: Eastham v Newcastle United Football Club Ltd [1964] Ch 413; Pharmaceutical Society of Great Britain and Anor v Dickson, [1970] AC 403; Enderby Town Football Club Limited v Football Association Limited [1971] Ch 591 (at 606); Buckley v Tutty [1971] HCA 71; (1971) 125 CLR 353; Hall v Victorian Football League and Anor [1982] VR 64.
13. If the decision is plainly contrary to any agreement on which its binding nature depends it will meet the same fate: R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100.
14. If it is a decision that is seen not to be made in good faith or to be the product of bias or other dishonesty or not to be made in accordance with the principles of natural justice the courts will upset it and the basis for doing so, in these several circumstances, has been variously expressed. See also Ashley AJA in AFL v Carlton (at 578-9).

The injunction

15. The principles that a court should apply in an application for an interim or interlocutory injunction, that is a temporary injunction to prevent implementation of the decision of the Disputes Tribunal until the whole of the case can be decided, are not really in doubt. They have been set out by Mason ACJ, as his Honour then was, in Castlemaine Tooheys Ltd & Ors v State of South Australia [1986] HCA 58; (1986) 161 CLR 148 (at 153) as follows:

In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be entitled to relief; (2), that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted and; (3), that the balance of convenience favours the granting of an injunction.

16. It is then my task to decide whether these matters are satisfied such that an order by way of injunction should be granted.
17. Before turning to the facts, I shall set out the relevant rules. These are contained in a document tendered by consent. The precise status and authority of them might arise in a full hearing of this matter but before me the parties were content to rely on the tendered document as providing the basis for my decision.
18. I will not set out the rules here in full because they were adequately addressed in the hearing yesterday but I will just refer to rr 1.7, 1.8, 6.1, 6.2, 6.3 excluding (b)(1) and (3), 6.4, 6.5.1, 6.5.4, 6.9 and 6.14.2(a)-(b).

The facts

19. Although matters were suggested in the proceedings before me I cannot, in such a hearing as this, make final findings on facts as to matters that inevitably have not been able to be fully ventilated and argued. For the purposes of my decision only, however, I make the following findings on the evidence before me.
20. As I have noted above, Mr Love is contracted to play for payment for the Ainslie Football Club in first grade games. He did so on 23 August 2009. The incident described above (at [2]) is alleged to have occurred during that game.
21. On Tuesday 25 August 2009, the Queanbeyan Tigers Football Club lodged a citation under r 6.3. It contained the required information. A DVD which recorded the incident was also delivered, though there was a suggestion that it was not left with the general manager. As that was not other than faintly suggested as an irregularity I do not need to make any findings about those facts or consequences of them.
22. There was some discussion about the citation with various people and Mr Corey Saitta, General Manager, Football Operations of the Ainslie Football Club, did discuss it with Mr Ron Fowlie, General Manager of the Queanbeyan Tigers Football Club. He said that at one stage he asked Mr Fowlie whether the citation could be withdrawn.
23. On Wednesday 26 August 2009, Mr Fowlie did withdraw the citation and at 9.08 am on that day the General Manager of AFL Canberra Limited confirmed that the citation had been withdrawn. The matter was then referred by Mr Brian Quade, Chairman of AFL Canberra Limited, to the board’s sub-committee that deals with tribunals and sought its advice.
24. The sub-committee advised that the citation could not be withdrawn. As a consequence Mr Anthony Seebach was appointed, purportedly under r 6.5.1, to investigate the incident. He received a copy of the DVD from the Queanbeyan Tigers Football Club and decided to refer the matter to the Disputes Tribunal under r 6.5.4.
25. Notice, purportedly under r 6.9, was given on 31 August 2009 to Mr Saitta, but not to Mr Love, of the hearing to be held by the Disputes Tribunal on 1 September 2009. Mr Saitta wrote to AFL Canberra Limited on 31 August 2009 raising a number of procedural defects and also challenging the membership of the Disputes Tribunal.
26. The latter challenge suggested that the composition of the Disputes Tribunal, in particular one of the Co-Chairpersons, might give an informed bystander the impression that the Co-Chair would not be able to give an unprejudiced and impartial mind to the resolution of the dispute. See Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 (at 293-294).
27. The question of bias was not pressed before me, partly because the members of the Disputes Tribunal, who are the second defendants, had not been served and were not represented. Thus no finding can or should be made about this matter in any way.
28. The letter raised the following points:

In relation to the above the Ainslie Football Club is of the view that AFL Canberra is in breach of failing to adhere to the procedure outlined in its by-laws as a result of the following:

- Video evidence that will be relied upon did not accompany the written citation on its lodgement;
- Football Operations has failed to notify the person - David Love - against whom such a complaint is lodged of his rights and the procedures to be followed in the investigation;
- The Ainslie Football Club has not received notification in writing from Football Operations;
- AFL Canberra Football Operations approved the withdrawal of the citation on Wednesday 26th August via SMS at 9.08 am. The Ainslie Football Club accepted the withdrawal of the citation and confirmation by AFL Canberra, thus player David Love was selected and subsequently played in the AFL Canberra Division 1 preliminary final versus the Eastlake Football Club on Saturday 29th August.

AFL Canberra has already dealt with this matter and therefore has no further power to act. These defects go to the heart of the process and are mandatory and not directory.

If AFL Canberra was serious in investigating the citation it would have done so prior to the preliminary final and would not have through its General Manager accepted its withdrawal by Queanbeyan Football Club.

29. The reference to “mandatory and not directory” suggests the involvement of a lawyer in the drafting of this letter.
30. Mr Love and Mr Saitta, as Mr Love’s representative, attended the hearing of the Disputes Tribunal. The procedural points raised in Mr Saitta’s letter were raised with the Tribunal but the Chair advised that the Disputes Tribunal was of the view that “it was not the correct forum to decide jurisdiction and would continue with the hearing.”
31. At this stage, neither Mr Saitta nor Mr Love had viewed the DVD which had been given to Mr Seebach. The Disputes Tribunal then invited Mr Saitta and Mr Love to watch the video. Following that, Mr Love pleaded guilty to the charge and the penalty referred to earlier, the eight match suspension, was imposed.
32. Mr Saitta said in his affidavit, “I now regret that I did not advise the plaintiff to enter no plea but I felt pressured by the speed of events.”
33. These proceedings were subsequently commenced.

The issues

34. A number of issues were raised before me. In summary Mr F J Purnell SC, who appeared for Mr Love, submitted that the Disputes Tribunal had no jurisdiction to hear the proceedings involving Mr Love. He cited four grounds including the ground of apprehended bias, a ground I do not consider for the reasons set out above.
35. The other grounds were:

(1) Mr Love had not been afforded natural justice because the appropriate procedures for notification had not been followed;

(2) the withdrawal of the citation by the Queanbeyan Tigers Football Club deprived the Disputes Tribunal of jurisdiction; and

(3) the failure of the Disputes Tribunal to consider the matters before it in relation to procedural complaints, before it embarked on a hearing, deprived it of jurisdiction.

36. Although all three matters were pursued the third was barely mentioned and the oral submissions and the main thrust of the argument was as to the second, the withdrawal of the citation. Accordingly I shall consider that first.

Withdrawal of citation

37. The rules are silent as to whether a citation can be withdrawn and if so what the consequences are. While rules can be seen as a legalistic impediment to the attainment of the real issues and resolution of disputes about them, it is important that when rules are made that they are then followed for that is the basis upon which people order their lives and agree to participate in the regulated activities.
38. The question of whether the rules permit withdrawal and of what consequences flow is not an easy question to answer in the light of the absence of any express reference to it. It involves two steps: (1) consideration of whether rr 1.7 and 1.8 can assist, and if not, (2) what a consideration of the rules as a whole say.
39. In the oral evidence of Messrs Saitta and Quade, uncertainty was expressed about whether a citation could be withdrawn. Neither gentleman knew of a case where it had occurred. That is relevant but by no means determinative.
40. Mr Quade had the advice of his committee, which was not entirely certain but seemed to be legal advice. It did not appear however that he had the opinion of the board itself and so the helpful provisions of rr 1.7 and 1.8 cannot supply the gap. He did say in evidence before me:

I called Mr Saitta and Mr Fowlie, who were at a function they were at, to advise them that the AFL Canberra Board, after referring the matter of a citation to the AFL Canberra Board Sub-Committee and discussing it with all AFL Canberra Board members except one, the decision of that board was to refer the matter to investigation.

41. It is not clear that this was a properly constituted meeting of the board for the purposes of exercising a power under rr 1.7 and 1.8. Indeed in the light of what I have to say later it can be considered to have quite another colour.
42. Mr S M Whybrow, who appeared for AFL Canberra Limited, made much of r 6.3.3. He submitted that this rule meant that serious offences (and despite some hesitation on the part of Mr Saitta, I am satisfied that the incident described in the citation, if proved, would amount to a serious offence) should be investigated and if a reasonable case appeared, should be brought before the Disputes Tribunal so as to maximise the appropriate regulation of the game.
43. Of course, umpires have a clear responsibility for this as r 6.2 suggests but as r 6.3.3 makes clear there may be incidents which “occur behind the play or which go unnoticed by the umpires”.
44. Thus Mr Whybrow submitted the intention behind the rule was to encourage people to report serious incidents which would then be investigated and, if appropriate be brought before the Disputes Tribunal. Thus would the game be better regulated and the odium and undesirability of serious offences being unpunished eliminated or reduced.
45. On the other hand, this could all be achieved consistently with a process whereby citations could be withdrawn. As Mr Purnell SC pointed out, the citation may be lodged and further information may come to light that shows it is frivolous or misconceived. He asked rhetorically why, in those circumstances, should not the promoter of the citation be able to withdraw it.
46. Mr Purnell SC also referred to the provisions of the Acts Interpretation Act 1901 (Cth), namely s 33(3). See also the Legislation Act 2001 (ACT), s 46 which provides that a power to make an instrument, such as the citation, includes a power to amend or revoke it and thus, he submitted, to withdraw it. I was not referred to any basis on which this legislation applied to the rules however. Further, the fact that such a provision was deemed necessary seems to imply, at least, that it is not a common law provision.
47. Both parties suggested that an analogy with the prosecution process was appropriate. The Director of Public Prosecutions has an undoubted discretion not to prosecute as well as to prosecute: Mensinga & Anor v Director of Public Prosecutions [2003] ACTCA 1.
48. Mr Purnell SC suggested that, in effect, this discretion resided in the person lodging the citation. Mr Whybrow suggested that such a person was more in the nature of a complainant in the criminal process and that once the complaint was made through lodging a citation the discretion resided elsewhere. This was somewhat supported by r 6.3(a) where Football Operations has the discretion to decide whether to refer the matter to an “Independent Tribunal” which, despite the deficient drafting, I assume means the Disputes Tribunal.
49. I do not find this analogy particularly helpful. Whatever the position with criminal law and procedure, the nature of the disciplinary matter is different and while the analogy may have some value it does not help me to decide where, if anywhere, a discretion resides.
50. I do note that r 6.5 has an operation that is important. There was a dispute about whether r 6.5.1(a), which referred to a “Reportable Offence”, meant the subject of a citation or other matter. Mr Purnell SC suggested it was limited to matters reported by umpires and referred to r 6.2. Mr Whybrow suggested that it meant any offence the investigation of which could lead to a report by the investigator of the Disputes Tribunal under r 6.5.4. I do not need to decide this.
51. It seems to me that r 6.5.1(b) is a separate and independent head of power which permits Football Operations to refer for investigation any matter of its own motion. Whether a citation has been provided or not, it seems that if something comes to the notice of Football Operations it can arrange an investigation. That also makes sense.
52. Thus if it comes to the attention of Football Operations that some matter that ought to be considered may have occurred, one would expect it to be able to be investigated. It may not be something that one of the persons who can make a citation knows about or is willing to pursue. The risk to AFL Canberra Limited of such a matter remaining un-investigated gives a rational basis for such a provision.
53. Thus, whether the citation has been withdrawn or not, Mr Seebach has power to investigate the matter that is the subject of the citation. Football Operations, through AFL Canberra Limited, as the evidence of Mr Quade showed, was allowed of its own motion to refer the matter for investigation. Mr Seebach’s report was a basis upon which r 6.5.4 gave jurisdiction to the Tribunal.
54. Accordingly I do not need to decide whether there is an arguable case that a citation can be withdrawn or whether that withdrawal deprives the Disputes Tribunal of jurisdiction. There is jurisdiction under r 6.5 and as this procedure was followed the Disputes Tribunal was not deprived of jurisdiction.

Natural justice

55. It is however clear that the procedures required to be followed in connection with the convening of the Disputes Tribunal were not followed, as Mr Love was not notified in writing by Football Operations of his rights and as the procedures to be followed for the investigation as required by r 6.3.2 were not complied with.
56. I note also that the rule requires that each club concerned receive a copy of such correspondence, meaning that it is clear that the notification to the club is not sufficient to discharge the obligation to notify the person who is the subject of the complaint.
57. Secondly, there was no compliance with r 6.14.2(a) which requires the person the subject of the complaint to be given an opportunity to view the video evidence at an agreed time prior to the hearing. Thirdly, r 6.10 was not complied with in that Mr Love was not given 72 hours notice of the hearing.
58. These are all important components of the obligation to give natural justice so that the person involved can know what he or she has to expect and can be prepared in good time. It is true that Mr Saitta had plenty of notice and had an informal opportunity to view the video. This however is not sufficient. The rules make it clear that this is a right enjoyed by the person who is actually the subject of the complaint.
59. It is also true that no adjournment was sought at the hearing so that these things could be resolved. Mr Saitta did attempt to raise at least some of the matters and was told that the Disputes Tribunal could not deal with them. That could, reasonably and arguably, have inhibited him from making other challenges. Indeed he implied as much.
60. It is also true that ultimately Mr Love did see the video but that was in the pressured circumstances of the hearing. That does not necessarily permit a person whose interests are at stake, as those of Mr Love were, to have a reasonable opportunity to view the video and consider the implications of it.
61. Mr Whybrow submitted, without explicit evidence, that these procedures were rarely followed to the letter. That may be so and, in the circumstances, I am prepared to accept that it is so. That however, does not deprive the rules of force. That the Ainslie Football Club has never taken the point before does not also deprive it of the right to do so, if in its view its interests had, in this case, been unfairly compromised.
62. Mr Whybrow further suggested that Mr Love would be deprived of his entitlement to equitable relief because he did not come with clean hands. This, however, seemed mainly directed at acts done by Mr Saitta or the Ainslie Football Club and there was no link in the evidence before me between what Mr Saitta did and what Mr Love did or knew.
63. I note, in the helpful explanation of the defence in Dal Pont G E & Chalmers D R C, Equity and Trusts in Australia (3rd ed, Lawbook Co, 2004) what the authors say about the defence of unclean hands (at p 798):
    

First, the alleged impropriety “must be a depravity in a legal as well as a moral sense”.

Secondly, the operation of the maxim is not triggered by any act of wrongful conduct, regardless of its nature or connection to the subject matter of the suit. Rather the impropriety in issue must display an immediate and necessary relation to the equity sued for. The plaintiff’s misconduct must be directly related to the wrongful action of the defendants. If the right the court of equity is asked to protect or assist was not itself brought into existence or induced by the conduct complained of, the defence does not apply.

Thirdly, the defence is not available to deny relief in circumstances where the conduct in question is simply taking advantage of a bad business decision or judgment or a failure to take proper precautions.

Fourthly, the court will take into account the consequences of refusing relief, and will not debar relief if this conflicts with other policies of equity or statute.

64. On the basis of this outline I am not satisfied that the defence would be likely to be made out.
65. As I have said above, the procedure set out in the rules is important. AFL Canberra Limited had the capacity to comply with them. It sits ill in its mouth to say that they have made the rules but never comply with them and so compliance should be discretionary.
66. It is also important that while the distinction between the Club and Mr Love is blurred, it is one that is recognised by the rules and so needs to be respected. In the circumstances I am satisfied that significant breaches of the rules occurred depriving Mr Love of the right of natural justice.

Determination of jurisdiction by the Disputes Tribunal

67. This matter was hardly addressed. My tentative view is that the Disputes Tribunal should have considered at least the procedural issues raised. These go to the heart of the fairness of the procedure before the Disputes Tribunal. As I have not been provided with much by way of submission or authority it is inappropriate that I say any more about the matter.

Discretion

68. The granting of an injunction is discretionary. I was not advised of any matter by either party that would justify me refusing relief on the basis that damages are adequate or that the balance of convenience favours the refusal of the grant of the injunction. The only matter is whether the breaches of procedure were so insignificant that it would be inappropriate to make an order.
69. Some of them are, by themselves, clearly in this category. The failure to give 72 hours notice would, in itself, not justify judicial intervention. Mr Love had apparently appeared before the Disputes Tribunal before and may be said to have known those matters which r 6.3.2 requires him to be told. Nevertheless, it is important that the procedures set out in the rules be followed on each occasion. The seriousness of the matter to a person may differ from time to time and they are entitled to have the opportunity, required by the rules, to be told of the position so that they may decide on occasion to read them as they may not have done so before.
70. The most significant is the failure to give appropriate access to the video. It is not enough that the Ainslie Football Club had its own video. It is the video on which those promoting the complaint, citation, report or matter, have relied upon that is primarily relevant and important. And the opportunity to view it, and a reasonable time before the hearing, is one that should be given to the person involved.
71. That does not mean many days, or perhaps a huge number of hours beforehand, but to give it to the person at the beginning of the Tribunal hearing when the Tribunal is sitting and waiting is not a reasonable satisfaction with the obligation under the rules.
72. Taken together then, I am satisfied that there has been such a breach of procedural fairness that intervention is required.
73. Accordingly, I order that upon the plaintiff giving an undertaking as to damages:
    1. Until the hearing of the proceedings in this matter or further orders, the first defendant be restrained from giving effect to the decision of the Disputes Tribunal given on 1 September 2009.
    2. The costs of this application be reserved.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Associate:

Date: 4 September 2009
Counsel for the Applicant: Mr F J Purnell SC
Solicitor for the Applicant: Clayton Utz
Counsel for the Respondent: Mr S M Whybrow
Solicitor for the Respondent: Slater & Gordon
Date of Hearing: 3, 4 September 2009
Date of Judgment: 4 September 2009