Bell, T.J. v Australian Securities Commission
[1991] FCA 528
•30 AUGUST 1991
Re: TREVOR JOHN BELL
And: AUSTRALIAN SECURITIES COMMISSION
No. Q G113 of 1991
FED No. 528
Corporations
5 ACSR 638
103 ALR 689
(1991) 31 FCR 184
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Pincus J.(1)
CATCHWORDS
Corporations - investigation by Australian Securities Commission - objection to examinee's lawyer - whether right of objection - whether validity of objection examinable.
Administrative Decisions (Judicial Review) Act 1977
Australian Securities Commission Act 1989, ss. 11, 22, 23
National Crime Authority Act 1984, ss.19, 25
HEARING
BRISBANE
#DATE 30:8:1991
Counsel for the applicant : Mr A.J.H. Morris
Solicitors for the applicant : Feez Ruthning
Counsel for the respondent : Ms S.M. Kiefel QC with Ms R.G. Atkinson
Solicitors for the respondent : Australian Securities Commission
ORDER
The decision of the respondent that neither James Francis Mackenney nor any other member of the firm of Gilshenan and Luton be permitted to be present at the continued examination of the applicant by the respondent be set aside.
The respondent pay the applicant's costs of and incidental to this application.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
This is an application by a person who has been called to be examined by an inspector in the course of an investigation by the respondent Commission. The applicant is being examined in connection with the affairs of a company, Aust-Home Investments Ltd. ("the company"). The application is made under the Administrative Decisions (Judicial Review) Act 1977, to review decisions of the "inspector" - i.e. the person before whom the applicant is being examined - relating to the legal representation of the applicant before him and certain other matters.
The substantial point of the case is whether the inspector, a Mr Behan, is entitled to decline to allow the applicant to be represented by the solicitor, or indeed the firm of solicitors, of his choice. The applicant says the statute expressly gives him a right to be represented by his lawyer and that if the right is not absolute, at least no such implication can be made in the statute as to justify the proposed exclusion of his solicitor from the examination.
The application was begun on Monday last and on that day, counsel for the applicant, Mr Morris, applied for and obtained interim relief. He did so at a hearing at which Mr Behan himself appeared for the respondent, although it was his own conduct which was challenged. Mr Behan, on that occasion, attempted to make explanations from the bar table to justify his decision, but Mr Morris objected to his doing so on the ground that statements of fact from the bar table cannot be used in evidence. Partly because I thought that the respondent might wish to obtain other representation and partly to afford the respondent an opportunity to adduce evidence, I gave the applicant relief for three days only, rather than until trial, and adjourned the case until yesterday. However, as it happened, the parties agreed that the hearing yesterday should be treated as the trial, rather than as an application for an interlocutory injunction, and that was done. The respondent took the opportunity to file affidavits in answer to the applicant's, but - curiously, as I think - none from Mr Behan.
The Commission's powers of investigation are set out in Part 3 of the Australian Securities Commission Act 1989 ("the A.S.C. Act" or "the Act") and what is done therefore appears to fall within the scope of the Administrative Decisions (Judicial Review) Act 1977 on which the applicant relies. Under ss.13, 14 and 15 of the Act, investigations may be made by the Commission in various circumstances and there is power to prepare a report or reports on the investigation (ss. 16 and 17) which may be published in whole or part by the relevant Minister (s.18(4)). A person who can give information relevant to a matter being investigated may be required to appear and that person is called the "examinee"; the person before whom he is required to appear is called the "inspector". Under s.21, the inspector may examine the examinee on oath or affirmation and may require relevant questions to be answered. Sections 22 and 23 read as follows:
"22(1)The examination shall take place in private and the inspector may give directions about who may be present during it, or during a part of it.
(2) A person shall not be present at the examination unless he or she:
(a) is the inspector, the examinee or a member;
(b) is a staff member approved by the Commission; or
(c) is entitled to be present by virtue of:
(i) a direction under subsection (1); or
(ii) subsection 23(1).
Penalty: $1,000 or imprisonment for 3 months, or both.
23(1) The examinee's lawyer may be present at the examination and may,
at such times during it as the inspector determines:
(a) address the inspector; and
(b) examine the examinee;
about matters about which the inspector has examined the examinee.
(2) If, in the inspector's opinion, a person is trying to obstruct the
examination by exercising rights under subsection (1), the inspector may require the person to stop addressing the inspector, or examining the examinee, as the case requires".
There are provisions in the Act which deal with legal representation in various other circumstances: in particular, ss.48, 56(2) and 59(8). One might mount arguments as to the proper construction of ss.22 and 23 by comparing them with the other legal representation provisions, but I think none of them have much strength and that ss.22 and 23 must be interpreted having regard to the setting in which they are found.
The inspector, Mr Behan, in circumstances which are set out in some detail below, has ruled that the applicant may not be represented at his examination by his solicitor, Mr Mackenney, or by any other representative of the firm of Messrs Gilshenan and Luton of which Mr Mackenney is a member.
The simplest contention is that s.23(1) quoted above gives the applicant a right to have Mr Mackenney present because the latter fulfils the description of "the examinee's lawyer". The argument derives strength in a negative way from the fact that the Act nowhere qualifies the statement that the examinee's lawyer may be present, and in a positive way from two provisions.
The first is s.22(2)(c)(ii) which has the effect that an examinee's lawyer is "entitled to be present". The second is that s.23(2) gives specific power to the inspector to deal with one problem, namely obstruction of the examination, by a specific method. If the intention of the legislation is that the inspector has, by implication, a general power to do what he sees fit about the legal representation to which s.22(2)(c) treats an examinee as being entitled, then why should s.23(2) have been necessary?
It is said, in effect, by Ms Kiefel QC, senior counsel for the respondent, that quite inconvenient results might follow if the right to have a lawyer present were treated as absolute. For example, there might be, as here, a suggestion that because the lawyer is personally involved in what is being investigated, it is inappropriate that he act professionally for an examinee. But I do not understand the law to be that a Court has general power to make implications in statutes to reduce or eliminate inconveniences thought to arise from their being applied in their natural meaning, and it is by no means plain to me that any sensible implication can be seen in s.23(1) so as to achieve the result for which the respondent contends. This is that the lawyer's right to be present comes to an end if the inspector, in good faith and on reasonable grounds, says it should.
This result is said to follow from a decision of the Full Court in National Crime Authority v A, B and D (1988) 78 ALR 707. That case concerned the construction of s.25 of the National Crime Authority Act 1984 ("the N.C.A. Act") which empowers the Authority to hold hearings of a certain kind. Under s.25(4):
"At a hearing before the Authority -
(a) a person giving evidence may be represented by a legal practitioner; and
(b) if, by reason of the existence of special circumstances, the Authority consents to a person who is not giving evidence being represented by a legal practitioner - the person may be so represented".
Ms Kiefel QC contended that, so far as relevant, the statute is indistinguishable in its terms from that with which I am concerned; I must say that I can see no relevant difference in language between s.25(4) quoted above and s.23(1) of the A.S.C. Act, so far as concerns the point in issue. Then ss.25(5), (6) and (7) of the N.C.A. Act read as follows:
"(5) A hearing before the Authority shall be held in private and the Authority may give directions as to the persons who may be present during the hearing or a part of the hearing.
(6) Nothing in a direction given by the Authority under sub-section
(5) prevents the presence, when evidence is being taken at a hearing before the Authority, of -
(a) a person representing the person giving evidence; or
(b) a person representing, pursuant to sub-section (4), a person who, by reason of a direction given by the Authority under sub-section (5), is entitled to be present.
(7) Where a hearing before the Authority is being held, a person (other than a member or an acting member, counsel assisting the Authority in relation to the matter that is the subject of the hearing or a member of the staff of the Authority approved by the Authority) shall not be present at the hearing unless the person is entitled to be present by virtue of a direction given by the Authority under sub-section (5) or by virtue of sub-section (6)".
It may be said that, insofar as these provisions reinforce the statement in s.25(4) of the N.C.A. Act, they correspond with s.22(2)(c) of the A.S.C. Act.
In the N.C.A. case, the Full Court held that a lawyer who had been instructed by a number of witnesses to represent them need not be allowed to appear after having represented the first of them. The basis of that was that the Authority feared that the lawyer might "quite unintentionally, perhaps subconsciously, reveal to one or more of the respondents matters which would forewarn them of what they might expect to be asked" (716).
I should interpolate that this reasoning appears to have been the inspiration of one of the submissions made on behalf of the respondent and dealt with below; Mr Behan, so far as the evidence shows, does not claim to have entertained any such fear.
In arriving at this view, the Court had regard to the "essential nature of the Authority and the functions with which it has been entrusted", but also considered s.19 of the National Crime Authority Act. This reads:
"The Authority has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the performance of its general functions or of its special functions, and any specific powers conferred on the Authority by this Act shall not be taken to limit by implication the generality of this section".
On that, the Court commented:
"Section 19 is a critical provision. The section expressly says that none of the specific powers conferred on the Authority is to be taken to limit by implication the generality of it and it must not be read down when s 25(4) is being construed. Section 19 provides that the Authority has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the performance of its general functions or of its special functions. Whether something is necessary to be done for any of these purposes requires the Authority to exercise a judgment" (715).
It appears to me that there is a difficulty, in applying the Full Court's view to the provisions of the A.S.C. Act with which I am concerned. I can find no provision which gives Mr Behan such a power as is contained in s.19 of the N.C.A. Act; the Full Court appears to me to have read s.19 as enabling the Authority to act, in appropriate cases, quite beyond powers specifically given to it by the N.C.A. Act. The Commission itself (not Mr Behan) has incidental power under s.11(4) of the A.S.C. Act:
"The Commission has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions".
However, this does not appear to apply to an inspector, nor is it framed so as to be unaffected by consideration of the specific powers given to the Commission.
It was suggested by counsel that the presence or absence of an express incidental power provision might make no difference, since the law would, in any event, imply that the inspector could do whatever he might reasonably think necessary to carry out the functions expressly given him. I could not accept that such a wide implication should be made. Suppose an inspector reasonably thinks it necessary, to gather material, that the person being examined or his lawyer be ordered to make certain enquiries and report back. It seems to me that a person who disobeyed such an order would commit no illegality.
It is true that in the N.C.A. case the Full Court did not say whether any different result would have ensued, had the overriding provisions of s.19 of the N.C.A. Act not existed. But in my opinion, the proper view of the case is that s.19 of the N.C.A. Act was accurately described by the Court as a "critical provision". The absence of such a provision, here, makes the case of little assistance, in determining the width of Mr Behan's powers.
In my opinion, the inspector's implied powers must be subsidiary to the performance, function and exercise of the express powers conferred on him by the Act. There is no good ground for holding that implied powers the inspector has can (as was the case with the National Crime Authority) override any specific provision of the Act governing the exercise of his functions. Here, one section says that the examinee's lawyer may be present, and another that he is entitled to be present. If any implication contrary to these plain statements is to be made, it must surely be confined to the avoidance of absurdity or impossibility. It is improbable that the legislature intended the inspector to have a broad and general right to exclude the lawyer altogether, as well as the carefully defined right to prevent him or her addressing, mentioned in s.23(2). A Court has no general power, unless a statute or rule permits it, to refuse to hear a party's counsel: Regina v Matthews (1887) 8 LR (N.S.W.) 45 at 49; the same rule applies to solicitors, where their appearance is permitted by statute.
The problem of construction appears to me, in essence, similar to that dealt with by the High Court in Balog v Independent Commission Against Corruption (1990) 169 CLR 625, in which the Court declined to read widely the powers a legislature gave to an investigative body. The Commission there in question was empowered to report on its investigations and to include in the report a statement of a specific kind: see s.74(5) quoted at p 631. That was held to be inconsistent with the existence of a power to make a finding of a broader kind, the Court remarking:
"If the legislature had intended, by allowing or requiring the Commission to report, to confer upon it a power to express a finding concerning the criminal liability of a specified person, then it would have been unnecessary to include sub-s.(5) of s.74" (633).
So here: whatever may be said as to implications to avoid impossibility or absurdity, it appears to me impossible to imply a power, not merely to curtail any addresses contemplated by s.23(2) of the A.S.C. Act, but to put the lawyer out, on the ground that the inspector reasonably and in good faith thinks he should. As discussed below, the respondent went so far as to suggest that the A.S.C. Act should be read as giving the inspector power to insist that each of the (perhaps numerous) persons called to give evidence must engage a separate firm; that might involve considerable extra expense. It could be insisted upon, apparently, even if there was an undertaking of confidentiality given by the solicitor engaged by the examinees and no suggestion that it was being, or likely to be, breached.
If one has regard to broad principles of statutory construction, the point seems rather clearer. Although one must not overlook the warning about overuse of statutory presumptions, given in Bropho v State of Western Australia (1990) 171 CLR 1 at pp 17 and 18, the presumption here runs against the respondent. The statute, however construed, interferes with the liberty of the applicant; on the respondent's construction, it does so in a respect which the law treats as important, namely a citizen's right to consult the lawyer of his or her choice free from interference by the state: compare Baker v Campbell (1983) 153 CLR 52 at 114, 116, 123 dealing with another aspect of the lawyer-client relationship.
To generalise the respondent's contention, it seems to me to follow that one should readily imply the existence of a similar power in any official authorised to investigate important matters. A familiar example of such an official is a police officer. I think it would be surprising if such an officer, however extensive his specific statutory powers, were to be treated as having an implicit right to insist that a series of persons being investigated each engage a lawyer independent of the others.
I am therefore of the view that there is no such general right to insist that an examinee dismiss his or her lawyer as that for which the respondent contends. It may be that, in some circumstances, ethical considerations would dictate that a lawyer whose own conduct is in question in an investigation should not act for any other examinee; that is a matter of which further mention is made below.
Reason for exclusionIt seems to me desirable now to deal with the question on the assumption that there is such a general right as I have held not to exist, the basis of it being (as I understood the respondent's submission) that an inspector's direction that a lawyer be no longer engaged in an examination must be upheld and treated as binding, unless the client can show that the inspector acted other than in good faith and on reasonable grounds.
It was argued for the respondent that the inspector will have reasonable grounds to suspect that the confidentiality of the investigation may be compromised if a legal practitioner appears for several witnesses. Counsel also contended that the inspector will have reasonable grounds to suspect that the integrity of the investigation may be compromised if an examinee is represented by a firm of solicitors where that firm or a member of that firm is itself subject to investigation. It was then contended that those reasons for the exclusion complained of for the applicant were set out by the inspector, Mr Behan, at pps 110-111 of the transcript in confidence.
Counsel for the respondent also appeared to suggest, at one stage, that the confidentiality of that transcript should be preserved by this Court. I invited further submissions on that subject, but none were made. Although the transcript is marked as being "in-confidence", there is now nothing confidential about it; it does not include any part of the investigation itself. It was adduced in evidence in open court and its content was freely discussed. It appears to contain no information which could possibly be thought to be confidential, except a statement by Mr Behan to the effect that he was concerned that the investigation might involve Mr Mackenney himself and other members of the firm of Messrs Gilshenan and Luton who were responsible for preparing a certain prospectus. However, that aspect of the matter has, again, been discussed by counsel in open court. In short, there is no ground for responding to the suggestion, if one was intended, that in some unspecified fashion the Court should endeavour to preserve the confidentiality of the transcript placed before it.
During the hearing yesterday, there was discussion of the fact that, in the absence of evidence from Mr Behan himself, there was no direct evidence as to the reason for the exclusion of Mr Mackenney. The hearing was adjourned for a short time to enable senior counsel for the respondent to take instructions. On resumption, I was informed that the respondent proposed to call no further evidence. There was no explanation given as to the reason for Mr Behan's making no affidavit, nor does any obvious explanation for his having not done so occur to me. On Monday last when an interim injunction was given, Mr Behan himself appeared for the Commission and made statements from the bar table, relevant to his state of mind. They were objected to by Mr Morris, for the applicant, on the ground that they should have been sworn to.
I can see that if a person in the position of Mr Behan has a reason for wishing to exclude solicitors, which reason he does not wish to disclose, then a difficulty might arise. No doubt it would be possible to overcome that by making appropriate orders, but here, neither of the reasons for exclusion put up appears to be in that category. The first has to do with the fact that Mr Mackenney has appeared, and wishes to continue to appear, for a series of people who have been and are to be examined. It was pointed out by senior counsel for the respondent that, in those circumstances, Mr Mackenney might in all innocence discuss the forthcoming examination with a witness, in language which alerts the witness or gives a hint as to what has passed between the examiner and previous witnesses. There is nothing confidential about that objection; it is simply a point, perfectly general in application, about what might happen if a single lawyer appears for a series of witnesses in the same investigation, subject to an undertaking to keep the content of the examinations confidential. The second objection has to do with the fact that Messrs Gilshenan and Luton, through Mr Mackenney, lodged the prospectus. Again, there is nothing confidential about that; it has been discussed in open court.
In these circumstances, it is puzzling that Mr Behan has made no affidavit. It would, as it appears to me, have been simple enough for him to say in an affidavit that the reasons argued by counsel are the true reasons - if that is the case - for the exclusion of Mr Mackenney. Nevertheless, senior counsel for the respondent asked me to infer from the transcript and from the evidence of persons other than Mr Behan that the reasons for exclusion were as she submitted.
Consideration of that contention requires some analysis of the evidence.
The respondent's evidence shows that on 10 May 1991, Mr Mackenney, on behalf of Gilshenan and Luton, lodged with the respondent a prospectus for the issue of shares in the company. The prospectus was considered by the respondent and discussions were had among its officers; Mr Behan was consulted about its content. On 23 May, the respondent wrote to the company informing it that the prospectus would not be registered as it did not comply with the law and, in addition, because it contained false and misleading statements and "there are omissions from the prospectus". Examples of these alleged deficiencies were given.
In July and August, there were examinations of a number of people relating to the company's affairs. About the end of July, inspectors other than Mr Behan examined five people, all represented by Mr Mackenney, and at various times during August, six people (including the applicant, Mr Bell) were examined by Mr Behan; again, Mr Mackenney appeared for them at the examinations. The applicant was examined on 6 and 12 August.
On 19 August, there was a discussion between Mr Behan and Mr Mackenney during the examination of another examinee. Mr Behan said, in effect, that he suspected that for Mr Mackenney to continue acting for persons examined would "put you in a conflict of interests". He said:
"... you are in an invidious position having sat through proceedings and
given advice to parties who may be in conflict to each other in the future". He also suggested that "your continued participation will be prejudicial both to yourself and to your clients".34. Mr Behan said:
"However, unless I am persuaded to the contrary, I would finally give a direction that you not be permitted to continue, or members of your firm not be permitted to continue to act in respect of these conflicting parties. And I would emphasise, yet again, that is not a reflection upon you in your professional capacity, or your firm in its professional capacity, of which I have got no criticism at all".
It should be noted that the notion that the parties for whom Mr Mackenney was appearing might be "in conflict to each other in the future" or that they were "conflicting parties" formed no part of either inference which I was invited by the respondent's counsel to draw, as to what induced Mr Behan to exclude Mr Mackenney.
Mr Mackenney has given evidence that, during an adjournment of the examination, he spoke to Mr Behan about the matter and Mr Behan then added that:
"... as a result of certain information I have in my possession, it may be that the role of yourself or your firm in relation to the preparation of the prospectus may be the subject of this examination".
Mr Bell again attended for examination on 20 August, when the question of representation was again discussed. Mr Behan then said, in effect, that he was concerned about the prospectus question. A partner of Mr Mackenney's, a Mr Quinn, also appeared on 20 August and (after referring to the events of 19 August) suggested that Mr Behan had shifted his ground. That appears to me to be so insofar as in the transcript on 19 August Mr Behan is recorded as having said that there was a conflict between the various witnesses for whom Mr Mackenney was appearing, and he subsequently said that the objection was that Gilshenan and Luton prepared the prospectus.
Mr Quinn later referred to a matter of concern -
"and that is that your continued investigation may involve an examination of Mr Mackenney and perhaps other members of our firm, and I take what you're saying as possible impropriety in relation to acting for Mr Bell or the companies or other people in the preparation of a prospectus".
Mr Behan replied that he did not think there was any basis "for you forming any view as to the purpose for which such an examination, if it did occur, would occur".
Mr Quinn went on with his address and Mr Behan interrupted by saying, in effect, that he would not provide any further information, but he later returned to the question of the prospectus. There was further discussion at the end of which Mr Behan refused to allow Mr Quinn to continue to address him. The application which was filed challenges that refusal, but it was not argued and seems to me now to be academic.
In these circumstances, and in the absence of any evidence from Mr Behan, it is difficult to make a finding, with any confidence, as to what his concern truly was. The evidence shows that the prospectus in question was lodged in May by Gilshenan and Luton, that Mr Behan was then consulted about it and presumably became aware of its fate, namely that it was rejected on grounds including that (as the respondent asserted) it contained false and misleading information and matters were omitted from it. If this was thought by Mr Behan to be an objection to the solicitors' appearing, one might have expected the point to be taken at the outset, rather than after Mr Mackenney had appeared for a number of people (11 in all) over some weeks. Counsel for the respondent did not submit, nor could I reasonably infer, that any additional matter came to Mr Behan's knowledge, to cause him to change his mind. Further, I cannot follow why, as is suggested, I should infer that Mr Behan was moved by the possibility of information obtained from one examinee being transmitted, via the solicitor, to another; in some considerable quantity of discussion about the issue, recorded in the transcript, Mr Behan did not mention this. Lastly, it is not easy to understand why, if inferences are to be drawn, I am not invited to infer that Mr Behan was revealing his objection when, on 19 August, he explained to Mr Mackenney that those whom he was advising "may be in conflict to each other in the future" and were "conflicting parties".
Ms Kiefel QC, for the respondent, contended that, the onus being on the applicant, he had to satisfy me of the illegality of what Mr Behan did. That is so, but when the statute gave the applicant at least a prima facie right to have his lawyer present, it was surely incumbent upon the respondent plainly to point to the basis on which that right was, in this particular case, displaced. Further, the state of Mr Behan's mind at relevant times is a matter peculiarly within his knowledge. In discussing the problem with Mr Quinn, Mr Behan made much of the point that he was not obliged to say what course the investigation might take or what illegalities might be expected. It is my view that if an inspector wishes to attempt to insist upon an examinee's dismissing his or her solicitor or barrister, there should be a clear statement of the ground upon which the demand for dismissal of the lawyer is being made. If, for example, Mr Behan was of the view that it was necessary to investigate the possibility that a member or members of the firm of Messrs Gilshenan and Luton might be personally liable as to the prospectus and that, accordingly, he wished them to consider whether they would continue to act as solicitors in the matter, presumably that would have been seriously looked at by the solicitors. Instead, Mr Behan's insistence upon his right to keep his intentions secret, together with the suggestion that the parties for whom Gilshenan and Luton had appeared were in conflict with one another, thoroughly obfuscated the matter. Even when Mr Behan appeared before me on Monday, he continued to suggest that it was necessary not clearly to disclose what was the problem about Messrs Gilshenan and Luton appearing. As Mr Morris pointed out, the fact that they lodged, on behalf of the company, the prospectus which was challenged would not necessarily prevent them appearing. On the other hand, if it is made plain that the alleged illegality of the prospectus is being pursued in the way suggested above, no doubt the solicitors would even now, as a matter of professional conduct, seriously consider their position. In the present state of the evidence, it does not seem to me possible to hold that the total exclusion of the firm of Messrs Gilshenan and Luton can be justified. It may be that the furnishing of more information by Mr Behan, in particular some explanation as to whether the facts have changed since May so as to necessitate that exclusion, would resolve the problem.
On the assumption that underlies this part of the reasons, namely that there is such a discretion to exclude a solicitor as that for which Ms Kiefel QC contends, I would not have decided the matter in favour of the respondent; the basis upon which Mr Behan purported to act has been left unclear by the evidence. Had he made an affidavit, stating an objection on the basis of the possibility of Messrs Gilshenan and Luton's being personally implicated, the case for the respondent would no doubt have appeared much stronger and perhaps unanswerable. All the foregoing discussion of the discretion to exclude the solicitor is, I reiterate, written on the assumption that one exists; I have held the contrary.
It is not necessary to make any order with respect to Mr Behan's direction that the applicant and Mr Quinn cease to address him; that claim seems to have been abandoned by the applicant. The orders, then, will be that the decision of the respondent that neither James Francis Mackenney nor any other member of the firm of Gilshenan and Luton be permitted to be present at the continued examination of the applicant by the respondent be set aside and that the respondent pay the applicant's costs of and incidental to this application.
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