Brennan & Shaw
[2011] FamCAFC 11
•2 February 2011
FAMILY COURT OF AUSTRALIA
| BRENNAN & SHAW AND ANOR | [2011] FamCAFC 11 |
| FAMILY LAW - APPEAL –EVIDENCE – Interlocutory orders - Application for leave to appeal – Leave granted - Where the trial Judge ordered access to the wife’s solicitor’s file and admitted documents as evidence – Whether the trial Judge erred in finding the wife had waived privilege in relation to the solicitor’s file – Error established – Appeal allowed. FAMILY LAW - APPEAL – PROCEDURAL FAIRNESS – Whether the trial Judge erred in failing to provide the wife with an opportunity to be heard on the question of waiver of privilege – Lack of procedural fairness established. FAMILY LAW - COSTS – Costs certificates granted to the appellant and first and second respondents in relation to the costs of the appeal – No order for costs made in relation to the Independent Children’s Lawyer’s appearance. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 |
| APPELLANT: | Ms Brennan |
| FIRST RESPONDENT: SECOND RESPONDENT: INDEPENDENT CHILDREN’S LAWYER: | Mr Shaw Mr B Luke Adamson |
| FILE NUMBER: | SYF | 3250 | of | 2006 |
| APPEAL NUMBER: | EA | 48 | of | 2009 | |
HEARING DATE: | 10 December 2010 | ||||
| DATE DELIVERED: | 2 February 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Thackray and Ainslie-Wallace JJ |
LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 April 2009 |
| LOWER COURT MNC: | [2009] FamCA 621 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lindsay SC and Mr Givney |
| SOLICITOR FOR THE APPELLANT: | Stacks/Family Law |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Levy |
SOLICITOR FOR THE FIRST RESPONDENT: | Slater & Gordon |
COUNSEL FOR THE SECOND RESPONDENT: Mr Jones
SOLICITOR FOR THE SECOND Middletons
RESPONDENT:
COUNSEL FOR THE INDEPENDENT Mr Braine
CHILDREN’S LAWYER:
SOLICITOR FOR THE INDEPENDENT Adamson Solicitors
CHILDREN’S LAWYER:
Orders
The applicant be given leave to appeal from the orders made by the Honourable Justice Fowler on 22 April 2009 and 23 April 2009.
The appeal be allowed.
Order 1 of the orders made by Fowler J on 22 April 2009 be set aside.
The order made by Fowler J on 23 April 2009 admitting into evidence the documents identified as Exhibit 1 be set aside.
The first respondent and the Independent Children's Lawyer and their legal representatives deliver up or cause to be delivered up to the Manager of the Sydney Registry of the Family Court of Australia for destruction, all documents (including copies made of such documents) obtained from the second respondent’s file relating to his acting on behalf of the appellant in proceedings number SYF 3250/2006.
The first respondent and the Independent Children's Lawyer deliver up or cause to be delivered up to the Manager of the Sydney Registry of the Family Court of Australia for destruction all documents and copies thereof prepared from or referring to information contained or derived from the documents obtained from the second respondent’s file.
The first respondent and the Independent Children's Lawyer be restrained from publishing, using or dealing with any of the said documents or the information contained in or derived from them in the said proceedings or generally in further proceedings between the applicant and the first respondent.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the applicant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the first and second respondents a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first and second respondents in respect of the costs incurred by him in relation to the appeal.
There be no order for costs in relation to the ICL’s appearance on appeal.
IT IS NOTED that publication of this judgment under the pseudonym Brennan & Shaw is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 48 of 2009
File Number: SYF 3250 of 2006
| Ms Brennan |
Appellant
And
| Mr Shaw |
First Respondent
And
Mr B
Second Respondent
REASONS FOR JUDGMENT
background
This is an appeal against two interlocutory decisions of Fowler J in which he made an order granting access to a solicitor’s file and admitted documents gleaned from that file into evidence.
The appellant and the first respondent (the “husband” and the “wife”) engaged in proceedings in the Family Court about their daughter. The wife was represented by her brother, the second respondent (the “solicitor”).
His Honour determined the principal proceedings between the husband and the wife. The husband made an application for costs against the wife and against her solicitor.
It is in the context of the costs proceedings that the orders the subject of the appeal were made.
On 22 April 2009, his Honour gave leave to counsel then appearing for the husband, “… to see the 2nd respondent’s file relating to his acting for and on behalf of the wife in these proceedings”. He stood the matter over until the next day. On 23 April 2009 his Honour ordered, “That the bundle of documents be admitted and marked Exhibit 1”.
Procedural chronology
The parenting proceedings were heard between 21 and 23 July 2008. His Honour gave judgment on 12 August 2008.
On 9 September 2008 the husband applied for an order for indemnity costs against the wife and her solicitor.
Pursuant to a direction of the trial Judge, on 21 November 2008 the husband filed Points of Claim in relation to the costs application. On 8 December 2008 the solicitor filed Points of Defence, submissions and an affidavit.
It is in the solicitor’s affidavit that contention arose.
In the solicitor’s affidavit filed 8 December 2008 he said at paragraph 3:
I have obtained the First Respondent’s consent to waive her privilege in respect of my evidence in this affidavit.
In paragraph 11 he said:
At all times in the proceedings I acted on the instructions of the First Respondent. At no time did I take any significant step in the proceedings without her instructions. She was copied in to all correspondence and given written court reports by my staff.
On 19 December 2008 the costs application came before his Honour. The wife represented herself and appeared by telephone and the husband was represented, as was the solicitor. By this time the solicitor had ceased acting for the wife.
It appears from the transcript that his Honour first dealt with the husband’s application for costs against the wife in relation to her unsuccessful stay against his order. The wife opposed those orders. His Honour made directions for her to file documents in response to that application.
His Honour turned to the application for costs arising from the trial and in response to an enquiry by his Honour, counsel for the husband said (at p 3 of the transcript of 19 December 2009):
I just raise this as an issue. The solicitor in his affidavit material has indicated that privilege has been waived in respect of, sorry his client has waived privilege in respect of material contained within his affidavit. Essentially one of his arguments is that he acted in the course of proceedings on instructions. Your Honour, given those two things it, I anticipate that we will make a request to my friend’s instructors for the solicitor’s file.
His Honour said:
For the parts of it which are not claimed for privilege purposes?
Counsel agreed.
His Honour continued:
Yes, I must say that absent any evidence to the contrary I’d be taking the view that a solicitor, generally speaking, should be assumed to be acting on instructions … In the absence of evidence to the contrary and it seems to me, I suppose, it is unlikely to be different but if you want to seek that information you can.
It is pertinent to note that in the Points of Claim filed 21 November 2008, the husband did not allege that the solicitor acted without instructions.
The solicitor was not required for cross-examination on his affidavit.
After setting 23 April 2009 as the date for hearing of the application, his Honour noted that the wife would not be required on that day because no orders were going to be sought against her in that hearing. Counsel for the husband agreed with his Honour. It is clear from reading the transcript that the wife was present for the whole of the proceedings on 19 December 2008.
On 7 April 2009, the husband contacted the trial Judge’s associate by email. The email appeared to have been copied to the wife, counsel for the husband and solicitor for the respondent solicitor. It read:
I request a relisting of this matter for further directions prior to the 23 April 2009.
I have requested the 2nd respondent to produce his file. This request has been declined on the basis that the 2nd respondent claims legal professional privilege. I say that privilege has been waived.
I seek to inspect the file prior to the hearing on the 23 April 2009. I seek a direction that the 2nd respondent produce his file. I seek any date other than the 16 April 2009, but prior to the 23 April 2009.
This email appears to have been brought to the trial Judge’s attention because his Honour’s associate replied that the matter had been relisted before his Honour at 9.30am on 22 April 2009. The reply from the associate was sent to the parties late on 20 April 2009 and was allegedly not seen by the wife until the following day (21 April 2009).
On 21 April 2009, the wife emailed the associate, indicated that she was not able to attend the hearing on such short notice and said, “If I am required to attend then this date will need to change. Please advise.”
The associate responded that the content of her email had been noted. On 21 April 2009 the wife wrote, “Thank you for noting it. Are you able to provide an answer to put my mind at rest as to what is happening.” On the same day she again emailed the associate, requesting to know whether the hearing on 23 April 2009 “will still occur as it is still listed for a hearing on Thursday”.
On 22 April 2009 the husband wrote directly to the wife and informed her that the hearing on 23 April 2009 would be in relation to his application for costs against her and the solicitor. Shortly afterwards, he sent a further letter correcting that and informing her, “your attendance is not required tomorrow”.
On 22 April 2009, the matter was listed before the trial Judge. There was no appearance for the wife. The solicitor was represented by counsel who, on announcing his appearance, indicated that he appeared for the “former solicitor”.
Counsel for the solicitor raised with his Honour that well before the hearing it had been conveyed to all relevant parties that the solicitor did not read paragraph 11 of his affidavit. In the course of discussion with his Honour, counsel for the solicitor also raised the issue of relevance of the material sought from the solicitor’s file. It was also indicated that there was no request for cross-examination of the solicitor.
His Honour said (at p 4 of the transcript of 22 April 2009):
Seems to be clear and ordinarily I would be in a position where I would say that it would be a reasonable assumption, or presumption of the Court, to accept the proposition that [a] solicitor appearing, in the absence of evidence to the contrary, a person in a matter would be appearing on instructions from that person to act in accordance with those instructions … As I understand it, it is not now asserted that the solicitor acted on instructions by him?
It seems to us that in this last sentence his Honour misspoke, intending to say, “…it is not now asserted that the solicitor did not act on instructions given to him”.
Counsel for the solicitor noted that there was no evidence before the court to that effect and when his Honour wondered whether there would be evidence to the contrary from the wife, counsel for the solicitor told his Honour that the evidence was closed, the matter was to be heard the following day and there was no evidence filed by the wife.
His Honour said (at p 4 of the transcript of 22 April 2009):
Well, I think the question of relevance is a question for trial and at this stage there has been a request for the production of the documents and their inspection. Privilege has been waived in relation to them. I don’t know what relevance they might have to any of the other issues that are raised in the proceedings … However, that does not prevent you at any time objecting to the tender of any of that evidence if on the particular question, the evidence is irrelevant.
His Honour directed that the solicitor make his file available for inspection by counsel for the husband and stood the matter over until the following day.
On 23 April 2009 counsel for the husband indicated that he had inspected the file and wanted to tender some documents from it. He tendered a bundle of documents extracted from the solicitor’s file. Counsel for the solicitor objected to the tender based on ss 135 and 57 of the Evidence Act 1995 (Cth) (the “Evidence Act”).
In the course of making submissions to the trial judge on the extent of the waiver found by his Honour, counsel for the solicitor said (at p 14 of the transcript of 23 April 2009):
…but the question is which documents has [the wife’s] privilege been waived in respect of. What is represented in [the solicitor’s] affidavit is her consent to waive her privilege in respect of the evidence contained in the affidavit. At no stage has she said she waives privilege over the entire file.
And I am not here to argue her case; it is a matter for her about – to assert the privilege. It is not [the solicitor’s] privilege but I raise that ground as the fourth ground because it is not clear to me, and in fairness to [the wife], that she has waived her privilege over this material. The only evidence of the waiver is paragraph 3 in [the solicitor’s] affidavit … the point simply is that there is a party to this litigation who might be able to assert a claim to privilege over some of this material.
His Honour said that in his view the wife had waived her privilege for all purposes.
The bundle of documents extracted from the solicitor’s file was tendered and marked Exhibit 1.
The hearing was adjourned part heard to 14 May 2009.
The costs hearing remains part heard pending the disposition of this appeal.
Additional evidence
On 28 April 2009 the wife filed an Application in an Appeal seeking leave to rely on further evidence on the hearing of the appeal. The proposed additional evidence was an affidavit sworn by her on 27 April 2009 and annexed was the email correspondence to which we have already referred. There was agreement between the parties that paragraphs 6 and 7 of the wife’s affidavit and the annexures should be considered on the appeal.
On 17 December 2009 the solicitor also filed an Application in an Appeal seeking leave to rely on additional evidence on the appeal. The additional evidence was an affidavit sworn by him on 15 December 2009. The parties agreed that paragraph 7 of the affidavit should be considered by the Court.
We will return to the affidavits later in these reasons.
Leave to appeal
The orders in respect of which the wife seeks to appeal are interlocutory and leave is required to bring the appeal. In determining whether to grant leave, we must consider whether there is an error of principle or whether a refusal to grant leave would cause a substantial injustice. Part of that consideration involves a determination of the merits of the appeal itself (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177).
The appeal
In argument, the appeal devolved to two broad grounds; a denial of procedural fairness and a challenge to his Honour’s finding that the wife had waived her privilege.
Denial of procedural fairness
The wife argued that his Honour was duty bound to provide her with an opportunity to be heard on the question of waiver of her privilege. That obligation was said to arise both from the zealous protection afforded to legal professional privilege by the common law and also by operation of s 132 of the Evidence Act.
Section 132 provides:
If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself … that the witness or party is aware of the effect of that provision.
The expression of principle was not in dispute. The argument was whether, when the whole of the conduct of the proceedings is considered, the wife was indeed denied procedural fairness.
It was argued for the wife that his Honour’s obligation arose implicitly from the circumstances of which he was clearly aware; the solicitor and the wife’s interests were not aligned in the costs application and the solicitor had ceased to act for the wife. Against this background, the bare assertion in the solicitor’s affidavit of 8 December 2008 (at paragraph 3) that he had obtained, “… the First Respondent’s consent to waive her privilege…” should have prompted his Honour to provide an opportunity to the wife to be heard on that issue. Further, on 19 December 2008, the issue of the wife’s waiver was squarely raised by counsel for the husband and indicated that this was an issue to be agitated on the hearing of the costs application.
His Honour did not inform the wife of her rights, nor indicate to her that she should, perhaps, obtain some advice about the nature of the privilege and the consequences to her of any waiver. Senior counsel for the wife noted that at the conclusion of the mention on 19 December 2008, his Honour expressly indicated to the wife that she need not appear on the 23 April 2009, the date set down for hearing the costs argument as between the husband and the solicitor.
Finally, it was argued that during the hearing counsel for the solicitor expressly referred to the wife’s privilege and noted that he did not appear to argue the extent to which she had in fact waived her privilege. It was submitted that this ought to have prompted his Honour to give her an opportunity to be heard on the matter.
Senior counsel for the wife argued that his Honour, in failing to inform the wife of the assertion that she had waived privilege and give her an opportunity to be heard, denied her procedural fairness.
For the husband it was argued that the wife had been clearly put on notice of the husband’s intention to seek access to her solicitor’s file and chose not to attend the hearing to contest the asserted waiver of privilege.
True it is that the wife was present on the telephone on 19 December 2008 when counsel for the husband indicated his view that there had been a waiver of privilege and access to the solicitor’s file would be sought. Quite what a self represented litigant would have made of that part of the interchange between counsel and bench is difficult to know.
Counsel for the husband further argued that the email correspondence initiated by the husband with the trial Judge’s associate contained the clearest indication of the proposed course of action for the coming hearing date, that is the inspection of the solicitor’s file, and again, the wife being on notice chose not to attend.
It is appropriate at this point in our reasons to comment on the practice of communication with a judge by email to his or her associate. It places the associate in an unenviable position of having to pass on messages from counsel or, in this instance, a party to the trial Judge and, at least in this case, it resulted in the relisting of a matter. In our view, the practice obscures rather than promotes justice which should be conducted in open court, on the record where one can have confidence that all parties understand what is happening. Clearly, when the email correspondence in this matter is considered, the wife was left in the dark, not knowing whether the hearing of 23 April 2009 was to proceed and not knowing whether she was required to attend on the 22 April 2009.
As to whether the email correspondence should have alerted the wife to the proposed claim for access to her file, again, we are of the view that when the whole of the correspondence is considered, she appears not to appreciate the import of the relisting because she asks (unanswered) whether she needs to be present. We also note that the final piece of correspondence to her was a letter from the husband who assures her that there is no need for her to attend on 23 April 2009.
On both 19 December 2008 and through the correspondence, the wife was told that there was no need for her to appear on 23 April 2009.
The contention that she was “on notice”, and in that knowledge elected not to attend, is rejected.
Even if it be the case that the wife had sufficient knowledge to understand what was proposed for 22 and 23 April 2009, it does not absolve his Honour from his obligation imposed by the Evidence Act. We are of the view that his Honour had a positive obligation to inform the wife of the proposed course to be taken by the husband and inform her of the effect of it.
We do not accept the argument advanced by counsel for the husband that there was no obligation on his Honour on 19 December 2008 because, at that stage, there was no application. Counsel then appearing for the husband said (at p 3 of the transcript of 19 December 2008) that privilege has been waived and the solicitor had asserted that he acted on instructions in the proceedings, and “… given those two things ... I anticipate that we will make a request to my friend’s instructors for the solicitor’s file”. Although a formal application had not then been made, it was abundantly clear that counsel for the husband asserted the wife had waived her privilege and was going to seek access to the solicitor’s file. In our view, that enlivened his Honour’s obligation.
This challenge has merit and has demonstrated an error of principle in that his Honour failed to afford the wife procedural fairness. We are satisfied that if leave was not granted it would work a substantial injustice to the wife.
We further find this ground of appeal made out.
Having upheld this ground of appeal, it is sufficient to dispose of the matter before us, however, we wish to make some observations about the second challenge to his Honour’s orders, the question of waiver of privilege.
Waiver of privilege
Before considering whether paragraph 3 of the solicitor’s affidavit of 8 December 2008 was capable of conveying that the wife had waived her privilege and if so, to what extent, it is important to note the context in which this argument arose.
It was never suggested to the trial Judge (or on appeal) that the solicitor had acted outside his instructions from the wife in the course of the principal proceedings. No such assertion is made in the husband’s extensive points of claim. The husband did not require the solicitor to be cross-examined on his affidavit and must be taken to have accepted the correctness of the assertions made by the solicitor in paragraph 3.
Moreover, as we have indicated in paragraph 27 above, his Honour indicated that he would presume a solicitor to be acting on instructions subject to there being evidence to the contrary. He was told that there was no evidence to the contrary.
What then was the basis for the claim to inspect the solicitor’s file? Counsel for the husband said, in reference to paragraph 11 of the solicitor’s affidavit (at p 2 of the transcript of 22 April 2009):
On the basis of that assertion and contention by the solicitor, we would seek the file to ascertain what those instructions were in relation to the matter. It’s relevant to the defence pleaded by the solicitor for a number of reasons, firstly to check what those instructions were and to test the defence that he pleads, and secondly, if it was the case that he acted without instructions in relation to matters …
The solicitor’s assertion that he was acting on instructions could in no way give rise to such a claim in the context to which we have just referred. In our view, the call for the file in these circumstances amounted to no more than a fishing expedition.
Counsel for the solicitor raised the question of relevance with his Honour. It seems to us that the trial Judge, with respect, misapprehended what was being argued. His Honour said (at p4 of the transcript of 22 April 2009):
Well, I think the question of relevance is a question for trial and at this stage there has been a request for the production of the documents and their inspection. Privilege has been waived in relation to them.
Seminal to a consideration of this issue was identification of the relevance to a fact in issue in the trial of the documents to which access was sought.
There was no issue raised either before the trial Judge or in argument before us that the solicitor had acted outside his instructions. That he asserted he did, in the light of what appears to us to have been an overwhelming acceptance of this assertion, does not make it an issue nor does it entitle the husband to trawl through the solicitor’s file in the hope that something may arise to contradict the solicitor’s assertion that he was acting on instructions.
In our view, in the context of the case as we have outlined, the question of waiver of privilege did not arise.
The husband’s claim is one of express waiver of privilege. No other waiver is asserted. Thus one must consider the words of the solicitor contained in his affidavit in determining whether they amounted to an indication that the wife had waived her privilege.
It is relevant to bear in mind that the privilege is that of the wife and it must be she who waives it. There could be no question of the solicitor having the authority to waive it on the wife’s behalf because he was no longer acting for her.
That the wife made no claim that the solicitor acted outside his instructions, is in our view, an important feature when considering the context of the asserted waiver. The wife had not purported to deflect a claim for costs against her by alleging that the solicitor acted without instructions. She was not using her privilege as a shield, nor as a sword against the husband’s claim for costs. Her conduct was consistent with the maintenance of her privilege.
We are of the view that on the evidence before the trial Judge, the bare assertion by the solicitor in paragraphs 3 and 11 of his affidavit filed 8 December 2008, in the context of the matter as we have outlined, could not amount to a waiver by the wife of her privilege in relation to the solicitor’s file and his Honour was in error in finding that it did.
Additional material
We have had the advantage of further evidence received on the appeal. In her affidavit of 27 April 2009 at paragraph 6 the wife said:
Some time last year, my former solicitor phoned me and I was put on speakerphone. He said that his solicitor (representing him in the costs application) was there and also his barrister was there too. Two gentlemen whose names I do not know and I have not met said hello to me. One of the men (not my former solicitor) said to me words to the following effect.
“We want to put in [Mr B’s] affidavit that he was always acting on your instructions and we need your permission to say that, is that okay”
I then replied;
“Yes that is okay”.
In paragraph 7 she continued:
I have never given permission for my file that has very personal information in it to be disclosed to the father or his barrister.
The solicitor’s affidavit, to the extent to which it was received (paragraph 7), is as follows:
On 4 December 2008 I was present at a conference with my solicitor, Max Connery, and my barrister, David Lloyd. During the conference, I telephoned [Ms Brennan] and put her on speaker phone. My solicitor, Max Connery, and my barrister, David Lloyd were present with me. We had a conversation with words to the following effect [omitting the introductions]:
“Me: Max wants to do an affidavit in defence of the costs order being sought against me and he needs you to waive privilege so I can say that I was at all times acting on instructions from you.
[Ms Brennan]: What does that mean?
Max Connery: [Mr B] used to be your solicitor so everything that went between you is absolutely confidential. Before he can say to the court that he was always acting on instructions, he needs your permission. Is that ok ?
[Ms Brennan]: Yes, that is ok”.
The wife’s assertions together with what was told to her in the conference, that her communications with her solicitor were absolutely confidential, makes it plain that there was no waiver by her of her privilege other than to permit the assertion to be made that the solicitor was acting on his instructions.
In relation to this challenge to his Honour’s findings, we have identified an error of principle in his Honour’s consideration of the question of whether the wife had waived her privilege over the subject documents and that if leave were not granted it would work a substantial injustice on the wife.
We therefore propose to grant leave to appeal.
Conclusion
We find the challenge to his Honour’s findings and orders made out and will uphold the appeal.
At the conclusion of the appeal we made orders that prevented the use or dissemination of the material obtained because of his Honour’s orders pending further order.
The wife sought remedial orders in the event that we were persuaded that the trial Judge was in error. Those orders involve the setting aside of his Honour’s orders of 22 and 23 April 2009 and that all parties deliver up the documents obtained through the operation of his Honour’s orders. We propose to make those orders.
We heard argument on the issue of costs on the resolution of the appeal. Having found error of law, we propose to grant a costs certificate to the appellant and first and second respondents in relation to the costs of the appeal.
The ICL appointed to appear in the substantive hearing appeared before us on the appeal. Counsel for the ICL indicated that their appearance was because the consequential orders sought by the wife which required (inter alia) the return of documents were expressed to include the ICL. The ICL did not seek to be heard on the appeal. On hearing that, we excused the ICL from further attendance. Although not present when the question of costs was discussed, we are of the view that it is not appropriate for a Costs Certificate to be granted to the ICL.
I certify that the preceding eighty five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Thackray and Ainslie-Wallace JJ) delivered on 2 February 2011.
Associate:
Date: 2 February 2011
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