the proper characterisation of clause 16 of the award
4 This appeal concerns the proper characterisation of cl 16 of the Award. The facts relevant to the appeal are set out in the joint judgment, which I will not repeat.
5 When the task is the proper characterisation of a clause in an Award, that task is best met by having regard to the terms of the clause as well as its context and its purpose, rather than to any label that is applied to it, as the joint judgment appears to do.
6 The analysis of cl 16 in the joint judgment [109] is, in my respectful submission, circular. The majority say:
Clause 16 of the Award is entitled "Redundancy". It provides that a redundant employee is entitled to receive redundancy payments calculated by reference to the employee's length of continuous service. The longer the period of service, the larger is the sum to which the employee is entitled. The term "redundancy" is broadly defined to mean "a situation where an employee ceases to be employed by an employer, respondent to this award, other than for reasons of misconduct or refusal of duty."
7 By characterising payments pursuant to cl 16 as "redundancy payments" and referring to the allowable Award matter identified in s 513(1)(k), the joint judgment concludes that since the "redundancy payments" under cl 16 is not "redundancy pay" within s 513(4), the payments pursuant to cl 16 is not an allowable Award matter.
8 The joint judgment notes that:
Mr Summerton did not, either in this Court or before the Industrial Magistrate, seek to assert that clause 16 provided for redundancy pay as that term is defined in s 513(1)(k) and s 513(4).
9 However, the majority asserts, wrongly in my opinion:
Nor did he assert that the clause dealt with any of the other allowable award matters identified in s 513.
10 In fact, Mr Summerton asserted, both before the Industrial Magistrate and on this appeal, that a payment pursuant to cl 16 of the Award in the circumstances of his case was properly to be characterised as an "incentive-based payment", and therefore, an allowable Award matter under s 513(1)(b) of the Act.
11 Kirby J said in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 82 ALJR 1505, at [2]:
Whilst the starting point in interpretation must still always be the text [Re Bolton; Ex parte Beane (1987) 162 CLR 514 AT 518; 61 ALJR 190; Trust Co of Australia Ltd v Commissioner of State Revenue (2003)77 ALJR 1019 at [68]], it is now appreciated that context and purpose are also vitally important. Further, this approach is not limited to cases where the text appears on its face to be ambiguous. [Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70]; 72 ALJR 841; Boral Besser Masonry Ltd v Australian Competition and Consumer Commissioner (2003) 215 CLR 374 at [383]; 77 ALJR 623.]
12 Clause 16 of the Award provided:
16. REDUNDANCY
16.1 Definition
Redundancy means a situation where an employee ceases to be employed by an employer, respondent to this award, other than for reasons of misconduct or refusal of duty. Redundant has a corresponding meaning.
16.2 Redundancy pay
16.2.1 A redundant employee shall receive redundancy/severance payments, calculated as follows, in respect of all continuous service (as defined by this award) with the employer:
Period of continuous service with an employer Redundancy/severance pay
1 year or more but less than 2 years 2.4 weeks pay plus for all service in excess of 1 year, 1.75 hours pay per completed week of service up to a maximum of 4.8 weeks pay
2 years or more but less than 3 years 4.8 weeks pay plus, for all service in excess of 2 years, 1.6 hours pay per completed week of service up to a maximum of 7 weeks pay
3 years or more than but less than 4 years 7 weeks pay plus, for all service in excess of 3 years, 0.73 hours pay per completed week of service up to a maximum of 8 weeks pay
4 years or more 8 weeks pay
16.2.2.Provided that an employee employed for less than twelve months shall be entitled to a redundancy/severance payment of 1.75 hours per week of service if, and only if, redundancy is occasioned otherwise than by the employee.
16.2.3 Week's pay means the ordinary time rate of pay at the time of termination for the employee concerned.
16.2.4 If an employee dies with a period of eligible service which would have entitled that employee to redundancy pay, such redundancy pay entitlement shall be paid to the estate of the employee.
16.2.5 Any period of service as a casual shall not entitle an employee to accrue service in accordance with this clause for that period.
16.2.6 Service as an apprentice will entitle an employee to accumulate credits towards the payment of a redundancy benefit in accordance with this clause if the employee completes an apprenticeship and remains in employment with that employer for a further twelve months.
16.2.7 An employer bound by this award may utilise a fund to meet all or some of the liabilities created by this clause. Where an employer utilises such a fund:
16.2.7(a) payments made by a fund designed to meet an employer's liabilities under this clause, to employees eligible for redundancy/severance pay shall be set off against the liability of the employer under this clause, and the employee shall receive the fund payment or the award benefit whichever is the greater but not both; or
16.2.7(b) where a fund, which has been established pursuant to an agreement between unions and employers, does not make payments in accordance with this clause, contributions made by an employer on behalf of an employee to the fund shall, to the extent of those contributions, be set off against the liability of the employer under this clause, and payments to the employee shall be made in accordance with the rules of the fund or any agreement relating thereto and the employee shall be entitled to the fund benefit or the award benefit whichever is greater but not both.
16.2.8 Service as an employee for the Crown in the Right of the State of Western Australia, the Crown in the Right of the State of New South Wales, Victorian Statutory Authorities, or the Crown in the Right of the State of Victoria shall not be counted as service for the purpose of this clause.
16.3 Employee leaving during notice period
An employee whose employment is to be terminated in accordance with this clause may terminate their employment during the period of notice and if this occurs, shall be entitled to the provisions of this clause as if the employee remains with the employer until expiry of such notice. Provided that in such circumstances, the employee shall not be entitled to payment in lieu of notice.
16.4 Transmission of business
16.4.1 Where a business is, before or after the date of this award, transmitted from an employer (in this subclause called the transmittor) to another employer (in this subclause called the transmittee) and an employee who at the time of such transmission was an employee of the transmitter in that business becomes an employee of the transmittee:
16.4.1(a) the continuity of the employment of the employee shall be deemed not to have been broken by reason of such transmission; and
16.4.1(b) the period of employment which the employee has had with the transmittor or any prior transmittor shall be deemed to be service of the employee with the transmittee.
16.4.2 In this subclause business includes trade, process, business or occupation and includes part of any such business and transmission includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and "transmitted" has a corresponding meaning.
13 It is crucial to note that "redundancy" as defined in cl 16.1, set out above, is quite different from the "redundancy" contemplated in s 513(1)(k), and s 513(4) of the Act, set out below. In my respectful opinion, the joint judgment erroneously concludes that because the cl 16 payment is labelled a "redundancy payment", and is not within the meaning of "redundancy pay" in s 513(4), it is therefore not an allowable matter under s 513(1)(k).
14 It is now common ground that the respondent was entitled to the benefit of the Award, and that, prior to 27 March 2006, he had a contingent entitlement to payment, pursuant to cl 16, in excess of $6,000.00. The contingency was that he ceased his employment, and that the cessation of his employment was not by the employer for misconduct or refusal of duty.
15 The contention by the appellant, accepted in the joint judgment, is that Parliament, by enacting ss 513 and 525 of the Act, which provisions came into effect on 27 March 2006, took that contingent entitlement away.
16 Section 513 of the Act relevantly provided:
513 Allowable award matters
(1) Subject to this Part, an award may include terms about the following matters (allowable award matters) only:
(a) ordinary time hours of work and the time within which they are performed, rest breaks, notice periods and variations to working hours;
(b) incentive-based payments and bonuses;
(c) annual leave loadings;
…
(k) redundancy pay, within the meaning of subsection (4);
…
(4) For the purposes of paragraph (1)(k), redundancy pay means redundancy pay in relation to a termination of employment that is:
(a) by an employer of 15 or more employees; and
(b) either:
(i) at the initiative of the employer and on the grounds of operational requirements; or
(ii) because the employer is insolvent.
…
17 Section 525 of the Act relevantly provided:
525 Terms in awards that cease to have effect after the reform commencement
(1) Immediately after the reform commencement, a term of an award ceases to have effect to the extent that it is about matters that are not allowable award matters, except to the extent (if any) that the term is permitted by Subdivision B to be included in the award.
(2) This section does not affect the operation of preserved award terms.
18 The submission by the employer on this appeal is that a payment pursuant to cl 16 of the Award was not "an allowable matter", with the consequence that any entitlement to a payment pursuant to cl 16 of the Award ceased to exist after 27 March 2006.
19 As the joint judgment notes, there is not now any dispute as to the facts. That was not the position at first instance before Industrial Magistrate Lieschke, who, at the commencement of his reasons, summarised the position:
1 Steven Summerton and Yirra Pty Ltd, trading as Richmond Demolition and Salvage, are in dispute over whether or not Mr Summerton's employment was governed by the National Building and Construction Industry Award 2000. If the award did apply he claims a "redundancy/severance" payment in accordance with clause 16, following the termination of his employment by resignation.
2 If the award did apply Yirra argues that the Workplace Relations Act has excluded clause 16 from the award as a non allowable matter in a preserved award. If the clause applies, Yirra says that Mr Summerton ceased to be employed by reason of either misconduct or refusal of duty, and thereby is disqualified from the benefit.
20 Yirra was unsuccessful before the Industrial Magistrate in its contentions that Mr Summerton's employment was not governed by the Award, and that Mr Summerton ceased to be employed by reason of either misconduct or refusal of duty. On this appeal, Yirra does not challenge the findings of the Industrial Magistrate rejecting those contentions.
21 His Honour found that Mr Summerton had been employed by Yirra since 1996; His Honour continued, at [17]-[19]:
17 Mr Summerton's classification was described on his pay advices as a Construction Worker Level 1(c). This is the lowest classification of the award for a labourer of at least twelve months experience. He was also paid a supervisor's allowance.
18 Yirra made contributions to the South Australian Building Industry Redundancy Scheme Trust for Mr Summerton.
19 Mr Summerton resigned in October 2007 without giving any notice. If the award applied he was required to give one day's notice according to clause 13.2.1(a).
22 His Honour found, at [32] and [33]:
32 I conclude by finding that Mr Summerton's primary function was to perform work in connection with the demolition and removal of buildings. In my opinion the award applied to Mr Summerton's employment.
33 Under clause 16 of the award if the circumstances of Mr Summerton ceasing employment fall within the definition of "Redundancy", the parties have agreed he is entitled to the sum of $6,323.20 being eight weeks pay for over four years' service.
23 Industrial Magistrate Lieschke rejected the contention of Yirra that Mr Summerton ceased to be employed by reason of either misconduct or refusal of duty, (and was thereby disqualified for the benefit), and found, at [42]:
Mr Summerton ceased to be employed because he resigned. He was not dismissed by his employer for any form of misconduct. …
24 The position of Mr Summerton both below and before this Court was that the payment pursuant to cl 16 that he is seeking to enforce does not fall within the defined meaning of "redundancy pay" in s 513(4). Instead he submits that the payment he is seeking pursuant to cl 16 is "an incentive-based payment", which is an "allowable matter" under s 513(1)(b).
25 The joint judgment has, at [105] of their Honours' reasons, characterised the payment sought by Mr Summerton as "an entitlement to redundancy pay" under the relevant Award, which is "not 'an allowable award matter'" within the meaning of the Act. The joint judgment repeatedly describes the payment pursuant to cl 16 of the Award as "redundancy pay": see, by way of example, at [104], [105], [109] and [110].
26 This description pre-empts the answer to what was the central issue before the Industrial Magistrate, and on this appeal, and thus impermissibly determines the conclusion about the application of s 513(1).
27 The joint judgment expresses the view, in [105], that:
The Industrial Magistrate was able to make a finding favourable to Mr Summerton by characterising the redundancy pay entitlement as an "incentive-based payment" which was an allowable award matter. The central issue on this appeal was whether or not he was correct to do so. We have concluded that he was not.
(Emphasis added).
28 I have set out the provisions of cl 16 of the Award above.
29 It is plain that in industrial relations in Australia, the term "redundancy" has been used with significantly different meanings, as this case amply demonstrates. "Redundancy" as defined in cl 16.1 of the Award, is quite different from the concept of "redundancy" in s 513(4), where redundancy means:
… a termination of employment that is:
(a) by an employer of 15 or more employees; and
(b) either:
(i) at the initiative of the employer and on the grounds of operational requirements; or
(ii) because the employer is insolvent.
30 At common law the meaning of "redundancy" was described by Bray CJ in R v Industrial Commission of South Australia; ex parte Adelaide Milk Supply Co-operative Limited (1977) 16 SASR 6 at 8, where his Honour said:
… the concept of redundancy … seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him, but because the employer no longer wishes the job the employee has been doing to be done by anyone.
31 The common law meaning has, as a central feature, dismissal of an employee by an employer.
32 In the Termination, Change and Redundancy Case (1984) 8 IR 34, the Commission (Moore (President), Maddern J, and Brown (Commissioner)) referred, at 35, to the claim of the ACTU in its final form, and said that that formulation:
… seeks to establish in federal awards a right for individual employees not to be unfairly dismissed, a right for individual employees in ordinary termination of employment situations to an increased period of notice based on length of service, obligations on employers to notify and consult with employees about the introduction of new technology and in redundancy situations, increased notice and a right to compensation and assistance for employees dismissed due to redundancy.
33 The amendments to the Act which took effect in 2006 defined "redundancy" narrowly, in 513(4). That statutory definition is an artificial construct, at odds with the ordinary meaning of that word, as [1599] of the Explanation Memorandum dealing with par 116(1)(i)of the Bill (which became s 513(1)(k)), recognises:
Paragraph 116(1)(i) would make redundancy pay within the meaning of sub-section 116(4) an allowable award matter. This would limit redundancy pay to redundancy pay in relation to a termination of employment by an employer of 15 or more employees; and which is either, at the initiative of the employer and on the grounds of operational requirements, or, because the employer is insolvent.
34 Redundancy in s 513(1)(k) is confined to the following two situations:
(i) The termination is by an employer who has 15 or more employees, and is on the grounds of operational requirements; or
(ii) The termination is by an employer of 15 or more employees, and is because the employer is insolvent.
35 Neither applied in the case of Mr Summerton: Yirra did not have 15 or more employees, and Mr Summerton resigned. Further, the termination was not on the grounds of operational requirements, nor because Yirra was insolvent.
36 It was never Mr Summerton's case that his claim was for redundancy pay, as defined by s 513(1)(k). His case was that his claim under cl 16 was for an "incentive-based payment", which, pursuant to s 513(1)(b), after 26 March 2006, was an allowable award matter.
37 I accept that cl 16 in its terms provides for "redundancy pay" where the circumstances of the termination of employment do fall within s 513(4). In those circumstances, payment pursuant to cl 16 would be allowable after 26 March 2006: see s 525(1). However, "redundancy pay" would not be payable under cl 16 where the employer initiated the termination for operational reasons, or was insolvent but did not have 15 or more employees.
38 This disentitlement, arbitrary as it is as to the number of employees, has no connexion with any previous meaning of redundancy, but applies because, however unfairly one might regard such a provision, Parliament has said that a termination of employment by an employer on the grounds of operational requirements or because the employer is insolvent is not a "redundancy", if the employer has fewer than 15 employees.
39 Clause 16 covers situations that are outside those situations described above. In particular, it contemplates payments in all cases where the employee resigns, and in all cases where the employer has terminated the employment other than on the grounds of operational requirements or where the employer is insolvent (regardless of the number of employees the employer has), excepting only where the employer has terminated the employment for misconduct or refusal of duty.
40 Payments in these circumstances are properly to be characterised as "severance payments", as the express terms of cl 16 contemplate.
41 The joint judgment accepts, at [138], that:
Clause 16 provides for the payment of larger sums for long-serving employees than those provided for employees who have served for a short time. In this sense it may be said that the clause provides the employee with an incentive to remain with a particular employer longer than might otherwise be the case. That service is also likely to be longer if the employee conducts him or herself appropriately and does not refuse duty.
42 The Industrial Magistrate accepted that, in the circumstances that relate to Mr Summerton's termination of employment, his entitlement under cl 16 is properly to be characterised as an "incentive-based payment", and therefore an allowable matter under s 513(1)(b).
43 The joint judgment asserts, at [138]:
… the evident purpose of s 513(4) would be wholly undermined if s 513(1)(b) is accorded the wide construction contended for by Mr Summerton.
44 Their Honours say that one of the purposes of s 513(4) was to prevent awards dealing with "employee initiated redundancies", being a phrase coined to refer to severance payments payable in circumstances where there were no operational requirements, or insolvency of the employer as the basis for the termination of employment.
45 The joint judgment, at [138], concludes:
Were provisions such as clause 16 to be treated as incentive-based payments under s 513(1)(b) the legislature's purpose of enacting s 514(4) would be frustrated.
46 This assessment of the legislature's purpose in enacting s 513(4) is at odds with the basic canons of statutory construction of an Act of Parliament, and attributes to the Explanatory Memorandum a power to expand and define the meaning of an Act, which the document does not have.
47 If it were Parliament's intention to say that a severance payment consequential on an employee resigning, and quantified by length of service, was to be characterised as a redundancy payment, but outside the allowable redundancy payment as defined by s 513(4), and therefore not an allowable matter, it could have said so.
48 It is trite to say that one is entitled to expect that if rights are to be taken away, it should be done by clear words. It follows, in my view, that the right of Mr Summerton to a severance payment pursuant to cl 16 of the Award was not affected by the enactment of s 513(1)(k), and s 513(4).
49 The Chief Justice of New South Wales, Spigelman CJ, speaking extra-curially in delivering the McPherson Lecture Series on Statutory Interpretation and Human Rights, (University of Queensland Press, 2008) said, p 24:
The basic principle that Parliament did not intend to invade fundamental rights, freedoms and immunities has been well established in Australia at least since 1907, when the High Court adopted a passage from a text on statutory interpretation that said:
It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used [Potter v Minahan (1908) 7 CLR 277 at 304].
50 Spigelman CJ referred to the statement of a unanimous joint judgment of the High Court in Coco v The Queen (1994) 179 CLR 427, at 437:
The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.
51 As a consequence, Spigelman CJ notes that the "basic principle" leads to a rebuttable presumption that Parliament did not intend, retrospectively, to change rights and obligations, citing: Cox v Hakes (1890) 15 App Cas 506 esp at 519, 528, 534; Newell v The King (1936) 55 CLR 707 at 711; Maxwell v Murphy (1957) 96 CLR 261 at 267; Fisher v Hebburn Ltd (1960) 105 CLR 188 at 194; Rodway v The Queen (1990) 169 CLR 515 at 518; Esber v Commonwealth (1992) 174 CLR 430 at 440-441.
52 Spigelman CJ refers to a rebuttable presumption that Parliament did not intend to interfere with vested property rights, citing: Clissold v Perry (1904) 1 CLR 363 at 373; American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677 at 682-683; Clunies-Ross v Commonwealth (1984) 155 CLR 193 at 199-200; and to a rebuttable presumption that Parliament did not intend to alienate property without compensation, citing: Commonwealth v Hazeldell Ltd (1918) 25 CLR 552 at 563; Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927] AC 343 at 359; Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399 at [28]-[31].
53 It has to be acknowledged that in this case the entitlement of Mr Summerton to a severance payment pursuant to cl 16 was contingent, and had not vested at the time of the coming into force of ss 513 and 525 of the Act. Nonetheless, if it was the intention of Parliament that redundancy pay as defined by s 513(4) be the only allowable matter in an Award flowing from the termination of employment, regardless of how termination of employment by an employee has occurred, Parliament could and should have said so.
54 Similarly, if it had been Parliament's intention to remove an entitlement to a severance payment, which had been inserted in an Award to promote stability of employment in the notoriously transient construction industry, as not being an incentive-based payment, that equally could have been spelt out and was not.
55 Further, in my respectful opinion, to, to say that incentive-based payments have to be payments that are "productivity-related", by some reference to what is said in the Explanatory Memorandum, is to place an impermissible gloss on the meaning of "incentive-based payments" where those words appear in s 513(1)(b) of the Act. Incentive-based payments, of course, frequently are directed at improving productivity, but it is an impermissible confinement to say that all incentive-based payments have to be productivity-related.
56 Payments to encourage work safety are incentive-based payments, because they constitute an incentive to adopt safe work practices, not because they improve productivity. Safe work practices might improve productivity, for instance if they avoid industrial accidents, but frequently safe work practices are less productive of profit than unsafe work practices. Payments to encourage workplace safety are primarily directed at promoting the welfare of the employee, and in my opinion, the question of whether they do or do not improve productivity does not determine whether such payments are "incentive-based".
57 Whatever might be said by way of explanation of the intent of legislation, the ultimate duty of a Court is to give effect to the terms of the statute itself. In Re Bolton; Ex Parte Beane (1987) 162 CLR 514, Mason CJ, Wilson, and Dawson JJ said, at 518:
The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.
58 Importantly, McHugh J said in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, at [132]:
… even when a Minister, in introducing legislation, has expressed a view as to the meaning of that legislation, the court will not give the enactment that meaning if such a reading is not justified. The need to act on the text of the enactment and not the Minister's statements is particularly important when the Minister's meaning has serious consequences for an individual.
59 A fortiori, when one is dealing with an Explanatory Memorandum.
60 McHugh J also commented in Newcastle City Council v GIO General Limited (1997) 191 CLR 85, at 113:
Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language of the section will always permit a construction that will remedy that evil.
61 McHugh J went on to say:
If the target of a legislative provision is clear, the court's duty is to ensure that it is hit rather than to record that it has been missed.
62 The provision for redundancy payments and severance payments in cl 16 has to be understood in the historical context of the construction industry. The clause reflects the desire to address the historically transient construction workforce. It does so by providing an incentive to remain with one employer, with scaled payments relative to length of service.
63 The disqualifications of entitlement to severance payments, namely dismissal for misconduct or refusal to work, encourage good behaviour.
64 Both of these aspects fit conformablywith the description of "incentive-based payments" used in [3060] of the Explanatory Memorandum for the Work Choices Bill: "a direct or indirect inducement, reward or benefit which aims to motivate an employee to achieve a particular goal or target". Clause 16 was introduced precisely to encourage a more stable and less transient workforce. Such a workforce conduces to improved productivity.
65 The decision of Commissioner Bacon in Re Moranbah North Coal Enterprise Interim Award 1997, Print PR916980, and the decision in Re Roche Mining Coppabella Certified Agreement 2004, Print PR974847, are illustrations of what might properly be regarded as "incentive-based payments".
66 Having regard to the terms, context and purpose of cl 16, the Industrial Magistrate was right to conclude that the severance payment payable to Mr Summerton in the circumstances of the cessation of his employment with Yirra was an allowable matter within s 513(1)(b).
67 His Honour was right to reject the submission that Parliament, by enacting s 513(4), had, by a sidewind, wiped out contingent entitlements to severance pay by construction workers, the entitlement to which had been introduced as an incentive to alter the transient nature of the construction workforce.
68 In conformity with the principles referred to above, I take it that Parliament intended that the only payments allowable as an Award matter in respect of redundancy was where the redundancy had occurred as defined in s 513(4).
69 The contrary was not argued by Mr Summerton, either before the Industrial Magistrate or before this Court. The question was whether a severance payment that occurs in circumstances outside s 513(4) is properly to be characterised as an "incentive-based payment" within s 513(1)(b). The Industrial Magistrate, carefully looking at the matter, so characterised the payment pursuant to cl 16 to Mr Summerton.
70 In my respectful opinion, it was open to him so to conclude, and further, in my view, he was correct so to conclude.