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Federal Court of Australia |
Last Updated: 8 February 2005
FEDERAL COURT OF AUSTRALIA
Ruiz v Queensland Property Investments Pty Ltd (ACN 009 661 027)
ENRIQUE RUIZ
v QUEENSLAND PROPERTY INVESTMENTS PTY LTD (ACN 009 661 027)
V
249 of 2003
RYAN J
8 FEBRUARY 2005
MELBOURNE
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ENRIQUE RUIZ
Applicant |
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AND:
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QUEENSLAND PROPERTY INVESTMENTS PTY LTD (ACN 009 661
027)
Respondent |
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DATE OF ORDER:
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8 FEBRUARY 2005
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WHERE MADE:
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THE COURT ORDERS THAT:
1. The application be dismissed.
2. There be no order as to costs.
Note: Settlement and entry of
orders is dealt with in Order 36 of the Federal Court Rules.
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AND:
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REASONS FOR JUDGMENT
1 There is before the Court an amended application for relief arising from the respondent’s refusal to employ the applicant for a proscribed reason in contravention of s 298K(1)(d) of the Workplace Relations Act 1996 (Cth) ("the Act"). The applicant claims an order pursuant to s 298U(a) imposing a penalty on the respondent and an order pursuant to s 298U(c) that the respondent pay to the applicant compensation of such amount that the Court thinks appropriate.
BACKGROUND
2 On or about 10 May 1999 the applicant became an employee of Newskills Limited ("Newskills"), which is a provider of employment training. Newskills arranged for the applicant to receive "on the job" training at the respondent’s Safeway Hume Distribution Centre ("the Hume DC") as a warehouse trainee with a view to his eventually being engaged as a long-term employee of the respondent. Pursuant to a trainee agreement with Newskills, the applicant’s employment, while working at the Hume DC, was to be governed by, in addition to the trainee agreement, the Queensland Property Investments Pty Ltd Hume Distribution Agreement 1999 ("the EBA").
3 There exists between Newskills and the respondent a Memorandum of Understanding ("Memorandum") governing the relationship between the two parties to the Memorandum which deals with, amongst other matters, trainees provided by Newskills to the respondent. Clause 2.4 of the Memorandum provides;
‘Upon completion of their traineeship, Trainees will be assessed by QPI as to their suitability for permanent employment. If adjudged as suitable, and the offer is accepted, the trainee shall transfer to QPI’s payroll at no additional costs.’
4 From the time when he commenced employment with Newskills, the applicant was a member of the National Union of Workers ("the NUW"). In about February 2001 he was elected as one of the two shift delegates representing NUW members on afternoon shift at the Hume DC. The other shift delegate was Paul Pirotta. At about the same time, the applicant was elected Occupational Health and Safety Representative for the afternoon shift pursuant to the Occupational Health and Safety Act 1985 (Vic).
5 Between March 2000 and March 2002 the applicant was warned or counselled in accordance with the EBA on a number of occasions. As in force from 31 August 2001, cl 24.1 of the EBA provided as follows for a General Performance and Rehabilitation Program ("GPRP");
‘24.1 The Programme
This programme is designed to be a process for ensuring an employee’s satisfactory job performance.
The intent of this process is to approach individuals with job performance problems in a mature, non-threatening manner. The focus is on ensuring the individual knows the expected standards, why they exist and understands how to meet those standards during a future review period. The review periods will be based on calendar time, with any absences extending the review period, by the cumulative total of the time absences.
24.2 The Process
The manager, upon deciding an employee may need to enter the programme will inform the employee. The employee may elect to have an employee representative with them, during the GPRP steps.
The process will be:
Step 1: Written counselling and training.
Step 2: Written reminder of performance standards and action plan.
Step 3: Final Counselling
Step 1: Written counselling and training:
Instructing the individual of the expected standards required and soliciting feed back to ensure it is understood. The manager will provide whatever information or training the individual needs.
An individual will remain on Step 1 of the programme for a period of 3 months. If after the expiry of that period of time no performance problems are encountered the individual will be removed from the programme.
If performance problems are encountered during the 3-month review period, the employee will then proceed to the next step.
Step 2: Written reminder of performance standards and action plan.
During this discussion, the individual will be advised performance is not satisfactory and advised of expected standards.
Discussions will take place with the manager emphasising the seriousness of the matter. Further emphasis is on "why" the standard exists, the individual’s failure to meet the standard and gaining the individual’s agreement to solve the problem(s).
An action plan is devised to eliminate the gap between actual and desired performance. The action plan is documented in a written reminder letter.
The individual will remain on Step 2 of the programme for a period of 6 months. If after the expiry of that period of time no performance problems are encountered, the individual will be removed from the programme.
If performance problem(s) are encountered during this 6-month review period then the individual will proceed to the next step.
Step 3: Final Counselling
If the previous steps fail to produce the appropriate changes, the individual is to be given a final counselling to document an action plan and will stipulate that any further performance problems within a 9-month period of review may result in termination of employment.
If at the expiry of that period of time no performance problems are encountered the individual will be removed from the programme. (*the review periods mentioned above relate to worked time only)’
6 The warning or counselling of the applicant was undertaken mainly by the applicant’s supervisor, Bernie Ward, in respect of dangerous driving of a forklift, twice attending work without safety boots and twice taking excessive sick leave. In addition to those matters, a number of other incidents occurred resulting in the applicant’s having been counselled or placed on the GPRP.
The Fennell incident
7 Trevor Fennell was the applicant’s leading hand in the despatch section. Early in March 2001, he was dissatisfied with the applicant’s performance and said that the applicant would have to "lift his game". Those comments were made to the applicant while he was recording notes of a meeting regarding an occupational health and safety issue. At a subsequent meeting attended by the applicant, Mr Pirotta, Mr Verduci, the afternoon shift manager, and Mr Dowling, the applicant’s production supervisor, the applicant claimed that Mr Fennell’s remarks amounted to harassment and an unwarranted attempt to interfere with the performance of his duties as Occupational Health and Safety Representative. He also insisted on an examination of the work rates of all employees in his department. The matter was investigated by Mr Verduci, who concluded that the applicant had wrongfully accused Mr Fennell of harassment. Mr Tzimokas, the Hume DC Manager at the time, adopted that conclusion and confirmed that the applicant should be placed on Step 1 of the GPRP.
The Carroll incident
8 Also in March 2001, the applicant spoke to a fellow employee, Adrian Carroll, and told him, in effect, that he, the applicant, had heard a rumour that Mr Carroll had been drunk at work some days earlier. Mr Carroll took offence at that suggestion and the applicant was placed on Step 2 of the GPRP under the EBA because of what was regarded as his inappropriate handling of the Carroll incident.
9 In or about July 2001 the NUW, pursuant to cl 15 of the EBA, notified to the Australian Industrial Relations Commission ("the Commission") a dispute under cl 15 of the EBA about, amongst other things, the disciplining of the applicant over the Fennell incident and the Carroll incident. After conciliation in the Commission the following agreed statement was issued by Commissioner Grainger on 23 July 2001;
‘Whereas the National Union of Workers (NUW) has pursuant to Clause 15.5 of the Queensland Properties Investments Pty Ltd Hume Distribution Centre Agreement 1999 (the Agreement) applied to this Commission for conciliation of a dispute with Queensland Properties Investments Pty Ltd (the Company) over the applicant [sic] of Clauses 15 and 24 of the Agreement with regard to three notices which the Company has issued in March 2001 to Paul Pirotta (Mr Pirotta) and Henry Ruiz (Mr Ruiz), NUW and the Company have agreed to resolve this dispute as follows:-
(1) the notice to Mr Pirotta marked "Exhibit A1" is to be withdrawn and removed from the record of Mr Pirotta
(2) the notice to Mr Ruiz marked "Exhibit A2" is to be withdrawn and removed from the record of Mr Ruiz
(3) the notice to Mr Ruiz regarding work performance issues and issued verbally to Mr Ruiz on 2 March 2001 is not to be taken into account by the Company in any future decision by the Company pertaining to the employment of Mr Ruiz
(4) Mr Ruiz is to apologise to Mr Adrian Carroll for his handling of certain allegations against Mr Carroll in March 2001, this apology to be oral and given in the presence of Mr Tasev [an NUW organiser] and Mr Laurie Verduci
(5) as part of the renegotiation of the Agreement which has commenced NUW and the Company agree to consider the current wording and operation of Clauses 15 and 24.’
10 The applicant did not apologise to Mr Carroll as required by that statement but he has explained that omission as due to a failure to make arrangements in accordance with par 4 of the agreed statement sanctioned by the Commission.
Other incidents
11 On or about 20 June 2001, the applicant did not attend work and failed to leave a voicemail message notifying his absence, although the applicant asserted that he had left a message with the morning shift supervisor, Les Gillies. He also claimed to be unable to use the voicemail, a claim which Mr Verduci did not believe because a memorandum had earlier been sent to staff advising them how to use the voicemail message system and because Mr Verduci had heard the applicant’s voice on the message system previously. Nevertheless, the applicant was given the benefit of the doubt.
12 On 24 August 2001, the applicant was recorded as having a shift average picking rate of 64% compared with the average rate of over 90% achieved by other equivalent employees.
13 On 18 September 2001, the applicant sought permission to leave his work area to hand out NUW leaflets related to the 2001 EBA negotiations. He was told by Mr Dowling not to do so but insisted that he intended to hand out the leaflets. On the next day the leaflets were distributed with the permission of Mr Tzimokas.
14 Between 29 November 2001 and March 2002, the applicant was counselled on about five occasions about what was regarded as excessive sick leave. By the end of February 2002, he had exhausted his sick leave entitlement for the calendar year 2002. On 20 February 2002, while absent on sick leave, he was seen by his shift manager driving his car in Ballan Road Werribee. When questioned the next day about this, the applicant replied that he had to pick up a friend from the airport.
Assessment of the applicant at the end of his traineeship
15 In the course of negotiations in 2001 between the NUW and the respondent for a new EBA, the NUW made a demand for all Newskills trainees to be transferred to employment with the respondent. The respondent did not accede to that demand but agreed to develop criteria for assessing trainees at the end of their traineeships. As a result, the following criteria were set out in a memorandum signed by Mr Slipais, the Human Resources Manager – Zone South for Woolworths Ltd;
‘CRITERIA TO BE ASSESSED FOR NEWSKILLS EMPLOYEES AT LEAST TWO MONTHS PRIOR TO TRANSFER TO QPI EMPLOYMENT.
Primary Criteria for Assessment.
1. Attendance
Employee attendance to be assessed based on unauthorised leave, amount of unpaid leave and instances of clear abuses of sick leave entitlements.
2. Reliability.
Employee record of punctuality in attending for work.
3. Safety
Employee safety record and ability to work in a safe manner.
4. GPRP and Performance Record
Employee GPRP record and capacity and preparedness to respond to performance and attitudinal appraisals/feedback.
Second Criteria for Assessment.
1. Workcover
Employees with long term workcover claims will be assessed on their possibility and preparedness to return to work. The Union will be consulted as part of any decision based upon workcover issues.’
16 Those criteria were accompanied by this statement, also signed by Mr Slipais;
‘Queensland Properties Investments, a subsidiary of Woolworths, elects to commit to completing the Certificate III traineeship scheme for all existing Newskills employees by 31st March 2002. This date is dependant upon operational requirements being met and considers that no outside influences will affect the target date. Any reasons for deviation from this projected date will be discussed as soon as possible with the respective Union.
Two months prior to expected completion of the Certificate III traineeship an assessment of each Newskills trainee will be conducted to determine suitability for employment with Queensland Properties Investments.
In addition, on transfer to Queensland Properties Investments the Company has ensured that all existing Newskills employees will have continuity of service. This process will be conducted between Newskills and Woolworths’ administration and will not affect any Newskills employee unnecessarily.’
17 In or about September 2001, the NUW informed the respondent that it was satisfied with the assessment criteria and process.
18 On 22 March 2002, Mr Verduci completed a "performance review report" on the applicant for the period from 4 October 1999 to that date. In the pro forma part of the report, Mr Verduci, under the heading "Attendance", noted that the applicant’s attendance had been "very inconsistent and/or absenteeism much higher than the average." This was the lowest rating for that criterion. In a handwritten note to that section of the report it was recorded;
‘Has had an absenteeism problem consistently throughout his time here at Hume. Is often late in arriving to work, Has been counseled and spoken to in numerous occasions. (sic)’
19 Under the heading "Reliability", Mr Verduci ticked the box labelled "very unreliable, cannot be expected to deliver in full and on time" (the lowest rating for that criterion) and by the relevant handwritten note recorded;
‘Works well in despatch. When transferred to other areas for more manual handling tasks, works poorly. Has been spoken to about his performance.’
20 Under the heading "Safety", Mr Verduci ticked the box labelled "Rarely breaches Safety Procedures. Regularly seeks and implements ideas resulting in improvements" (the second highest rating for that criterion) and noted;
‘Henry breached a safety procedure early on his employment and was counselled. He is the current OH&S representative and has not breached safety procedures since.’
21 As to the applicant’s "Performance Record" Mr Verduci ticked the box labelled "Performance is inconsistent with File showing ongoing evidence of the need for Counselling/Coaching" (the second lowest rating for that criterion) and noted;
‘Works well in Despatch. Requires heavy supervision. Does poorly with manual handling tasks.’
22 In Mr Verduci’s final recommendation he noted;
‘Henry [the applicant] is highly ambitious but treads on fellow employees toes and causes many problems, for he does not go about it the right way. He wants the best jobs and thinks that his way is the only way...Requires strong supervision and comes across as if the world owes him everything. Not a pleasant employee to have in the team. I recommend that he is not to be transferred to Safeway.’
23 Mr Justin Dowling who, it will be recalled, was the applicant’s production supervisor, also in March 2002 completed a performance review report on the applicant for the same period. Under "Attendance", Mr Dowling ticked the same box as Mr Verduci and noted;
‘As Henry’s File will show he has been spoken to many times re his attendance.’
24 Under the heading "Reliability", Mr Dowling ticked the box labelled "Can usually be relied upon to perform to expectations" (the middle rating for that criterion) and noted;
‘When Henry is in Despatch his rates are good but in other areas they can be lacking.’
25 Under "Safety", Mr Dowling ticked the box labelled "Usually adheres to Safety Requirements may at times breach Procedures. Sometimes questions existing practices and may generate ideas independently." (the middle rating for that criterion) and noted;
‘Henry is OHS rep but uses this to extremes at times by producing questionable Hazard reports.’
26 Under the final heading "Performance Record", Mr Dowling ticked the first box labelled "Displays an inability to improve performance despite Counselling/Coaching – many instances of poor performance on File" (the lowest rating for that criterion). In the same context, he noted "habitual offender for absenteeism."
27 In Mr Dowling’s final recommendation, he noted;
‘I feel it would be detrimental to the companies best interests to transfer Henry to our employment.’
28 On 30 April 2002 there was a meeting between the applicant, Mr Tzimokas, Rachael Decker, another officer of the respondent, and Mr de Rozario of Newskills. At that meeting, Mr Tzimokas told the applicant that he had been assessed by "several managers" for performance, attendance and reliability, and that the assessment was negative. The applicant was told that there would be a meeting at Newskills on the following day when he would be allowed to comment on the assessment and show why he should "keep his job." The applicant requested copies of the manager’s assessments but they were not provided.
29 On 1 May 2002, the projected meeting took place at the Newskills premises and was attended by the applicant, Mr Tzimokas, Ms Decker and Mr Slipais on behalf of the respondent, Mr de Rozario representing Newskills and two NUW delegates Vince Greffa and Mr Pirotta. At that meeting, the applicant explained that his poor attendance record had been attributable to intestinal disorders and that any GPRP steps imposed on him had been revoked. In relation to performance, the applicant contended that it was not an issue and his immediate manager had indicated that it was not a problem. When confronted with his perceived preference for despatch work, the applicant said that he had been performing multi-skilled tasks during his work. He acknowledged the incident with the forklift but pointed out that he had not attracted a Step 1 under the GPRP and had proved to have learned his lesson. The applicant also admitted that he had not yet apologised to Mr Carroll but pointed to difficulties in arranging for it to be done in the presence of John Tasev and the shift manager, Mr Verduci. The applicant also indicated that, in his view, he did not "have a problem with any managers."
30 Mr Pirotta then spoke on the applicant’s behalf, pointing out that his absences had been due to a medical condition of which he, Mr Pirotta, understood the respondent to have been aware. Mr Pirotta also claimed to have been unaware of any counselling given to the applicant in relation to unsatisfactory performance. As to his safety record, the applicant had "copped on the chin" the disciplinary action, presumably in respect of the forklift incident, and had not done anything wrong since his probationary period. In relation to Mr Carroll, Mr Pirotta suggested that a time should be set up for the apology with all four parties present.
31 Mr Tzimokas then pointed out that there had been an available overlap between the applicant’s shift and that of Mr Carroll. The applicant contended that he had been at the Hume DC for three years and had done a good job. He was surprised that training took so long and that he had been ready to complete his training after twelve months.
32 After discussion about the training process, Mr Tzimokas stated his belief that it involved Newskills’ providing a group of trainees and the respondent providing a training site and at the end there was to be an assessment of suitability of trainees for the company environment.
33 At the conclusion of that meeting, Mr Tzimokas told the applicant that the respondent would not make him an offer of employment. The applicant on the same day ceased work at the Hume DC. It was conceded by Mr Tzimokas that he was the person on behalf of the respondent who made the decision not to offer employment to the applicant.
LEGISLATION
34 Section 298K(1) provides;
‘An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) dismiss an employee;
(b) injure an employee in his or her employment;
(c) alter the position of an employee to the employee's prejudice;
(d) refuse to employ another person;
(e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person.’
35 Section 298L(1) provides;
‘Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:
(a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or
...’
36 It is accepted on both sides that the respondent is an employer for the purposes of s 298K(1), as defined in s 4 of the Act, and has refused to employ the applicant within the meaning of s 298K(1)(d). The only issue for resolution is whether that conduct was carried out for the prohibited reason set out in s 298L(1)(a), specifically that the applicant was, or had been, a delegate or member of the NUW, or for reasons that included that reason. By s 298V, the respondent bears the onus of negativing that prohibited reason. That section provides;
‘If:
(a) in an application under this Division relating to a person's or an industrial association's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise.’
37 That onus is to be discharged on the balance of probabilities; see MUA v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34 at [221] and MUA v CSL Australia Pty Ltd (2002) 113 IR 326 at [55].
CONCLUSION
38 Whether an employer’s conduct has been actuated by a prohibited reason, or reasons that include a prohibited reason, is a question of fact (Geraldton at [295]). Where there have been several reasons actuating the employer’s conduct, it is sufficient that the prohibited reason be only one of the reasons, and not necessarily the predominant, or "substantial", reason (Geraldton at [224]). The existence of a cogent alternative explanation for the conduct might be an indication that the prohibited reason did not so actuate the conduct (AMIEU v Belandra (2003) 126 IR 165 at [220]).
39 Mr Harrington of Counsel for the respondent submitted that the respondent had refused to offer to the applicant employment on the basis of its assessment of him in accordance with established criteria, as well as a general observation by management of the applicant’s attitude and demeanour during the traineeship. The submission continued that there was no evidence that Mr Tzimokas had been actuated by the prohibited reason of the applicant’s membership of the NUW, or his status as a delegate of the NUW.
40 I am persuaded by this submission. The evidence satisfactorily established, in my view, that the respondent’s sole reason for refusing to employ the applicant was the assessment of the applicant, made by Mr Tzimokas, against the criteria established by the respondent and agreed to by the NUW. That assessment had been based on the written evaluations of both Mr Verduci and Mr Dowling, as well as Mr Tzimokas’ own review of the applicant’s file. I am also satisfied that each of Mr Verduci’s and Mr Dowling’s assessments of the applicant had been based solely on the set criteria and that neither assessment had been influenced by the fact the applicant was a member or delegate of the NUW. I find that the reason proffered by the respondent for refusing to employ the applicant genuinely actuated it and constituted a cogent, credible alternative explanation for its conduct.
41 Mr Bruce Shaw of Counsel for the applicant submitted that the matters relied upon by the respondent as reasons for refusing to employ the applicant should, in the normal course of a traineeship, have been put to rest or were stale and that errors during the course of a traineeship, particularly at the beginning, should not be taken into account at the end when a trainee is assessed for permanent employment. There was little evidence, the submission continued, of incidents other than absenteeism on the applicant’s record after August 2001. This submission goes to the merits of the respondent’s decision to refuse employment to the applicant, and does not bear directly on whether the respondent’s conduct was, or was not, actuated by a prohibited reason. In assessing whether a respondent’s conduct was for a prohibited reason, it is not for the Court to substitute its own view for that of the respondent on whether an employee should have been treated as he or she was. Rather, it is for the Court to assess whether the respondent’s alternative reason for the treatment of the employee was genuine. As already indicated I am satisfied of the genuineness of the respondent’s reason in this case.
42 As the authorities reveal there can be cases where the reasons for the conduct postulated by an employer are so far-fetched or implausible that the Court is unable to find that they were genuinely entertained. In those circumstances, the employer does not discharge the burden of proving that its conduct was not actuated by a prohibited reason. However, there has been no such failure by the present respondent to discharge the reverse onus of proof.
43 Mr Shaw also submitted that Mr Tzimokas had adopted a view that the applicant had not conducted himself according to what Mr Tzimokas regarded as appropriate industrial relations and that the applicant, in carrying out his duties as a delegate, had done so in an unacceptable way. Accordingly, so the argument went, the actions of the respondent had been actuated by the prohibited reason. Mr Shaw referred specifically to the evidence of Mr Tzimokas that the applicant had regularly departed from proper procedures in resolving any disputes, as prescribed by cl 15 of the EBA. Mr Harrington submitted, in respect of this issue, that, while Mr Tzimokas had taken into account the applicant’s behaviour and attitude to management in failing to comply with cl 15 of the EBA, it was the applicant’s refusal to engage in the agreed process that had partly actuated the decision, not the fact that the applicant was a union delegate. Such a distinction, the submission continued, was drawn by Marshall J in Elliot v Kodak (2001) 108 IR 23 at 34.
44 I am disposed to accept the respondent’s submission on this point. It was not the applicant’s performance per se of his functions as a delegate that attracted the disapproval of Mr Tzimokas. Rather, it was the way in which he performed those functions, specifically, his continued refusal to comply with the issues resolution procedures set out in cl 15 of the EBA.
45 The respondent, on the balance of probabilities, has discharged its burden of proving that its reasons for refusing to offer employment to the applicant did not include the fact that he was a member or a delegate of the NUW. For the reasons which I have endeavoured to explain the application must therefore be dismissed.
COSTS
46 This matter was listed to be heard before me commencing on 22 June 2004. On that day, the applicant filed an amended application and a second further amended statement of claim. The amended pleadings, in effect, abandoned the applicant’s common law claim for breach of contract. The common law claim had formed part of the original pleadings and had been brought in the accrued jurisdiction of this Court in conjunction with the freedom of association claim under Pt XA of the Act. The respondent claims the costs thrown away in respect of the abandoned part of the applicant’s claim.
47 Section 347(1) of the Act provides that "A party to a proceeding (including an appeal) in a matter arising under this Act ... shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause." It has been held that "a matter arising under this Act" can include a matter raising the accrued or associated jurisdiction of the Court (see Byrne v Australian Airlines (1994) 47 FCR 300). Section 347(1) therefore precludes the Court from ordering costs in relation to the associated matter, as well as the matter brought directly under the Act, unless it can be shown that the proceeding has been instituted vexatiously or without reasonable cause.
48 There is nothing before the Court to support the proposition that this proceeding was issued by the applicant vexatiously or without reasonable cause. Although the applicant did abandon part of his claim at the last minute, and doubtless the respondent incurred costs in relation to the abandoned part, that does not entail that the proceedings were issued vexatiously or without reasonable cause. There are a range of other reasons for which it can be inferred that a proceeding, or part of a proceeding, has been abandoned and these were not canvassed before the Court.
49 For these reasons, I refuse the respondent’s application for the costs thrown away.
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I certify that the preceding forty-nine (49) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Ryan.
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Associate:
Dated: 8 February 2005
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Counsel for the Applicant:
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Mr Bruce Shaw
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Solicitors for the Applicant:
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Secombs
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Counsel for the Respondent:
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Mr N Harrington
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Solicitors for the Respondent:
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Blake Dawson Waldron
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Dates of Hearing:
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21, 22 & 23 June 2004
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Date of Judgment:
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8 February 2005
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