Broadbent, M.R.M. v Fairbairn, W.A

[1995] FCA 501

CATCHWORDS

ADMINISTRATIVE LAW - Judicial review - ambit of courts power to grant a stay pursuant to s 15 Administrative Decisions (Judicial Review) Act - whether an appropriate case to grant a stay.

CIVIL AVIATION REGULATIONS - Applicant breached Civil Aviation Regulations by entering controlled airspace without clearance - pursuant to regs 5.38 and 265 applicant's pilot's licence suspended until examination undertaken - whether that suspension continued, notwithstanding the review decision pursuant to reg 5.39.

Administrative Decisions (Judicial Review) Act 1977 (Cth) - s 15
Civil Aviation Regulations - regs 5.38, 5.39, 265 and 269

Erinford Properties Ltd. v Cheshire County Council (1974) 1 Ch 261 Referred to
Faingold v Zammit (1984) 1 FCR 87 Applied
Monoher v Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 405 Referred to
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Referred to
Perkins v Cuthill (1981) 34 ALR 669 Referred to
Snow v Deputy Commissioner of Taxation (1987) 14 FCR 119 Applied

Michael Russell Mark Broadbent
v William Allan Fairbairn & Anor.
QG 93 of 1995

Drummond J
Brisbane
10 July, 1995

IN THE FEDERAL COURT OF AUSTRALIA )    No. QG 93 of 1995
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN:  MICHAEL RUSSELL MARK BROADBENT

Applicant

AND:     WILLIAM ALLAN FAIRBAIRN

First Respondent

AND:CIVIL AVIATION AUTHORITY

Second Respondent

MINUTES OF ORDERS

JUDGE MAKING ORDER:         Drummond J
DATE OF ORDER:              10 July, 1995
WHERE MADE:                 Brisbane

THE COURT ORDERS THAT:

1. The applicant's notice of motion be dismissed.

1. The applicant pay the respondents' costs of and incidental to the notice of motion, to be taxed.

NOTE:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )    No. QG 93 of 1995
QUEENSLAND DISTRICT REGISTRY     )
GENERAL DIVISION                 )

BETWEEN:  MICHAEL RUSSELL MARK BROADBENT

Applicant

AND:     WILLIAM ALLAN FAIRBAIRN

First Respondent

AND:CIVIL AVIATION AUTHORITY

Second Respondent

Coram:    Drummond J
Date:     10 July, 1995
Place:    Brisbane

REASONS FOR JUDGMENT

The applicant, a licensed air pilot, is seeking judicial review of a decision of the first respondent made under the Civil Aviation Regulations requiring the applicant to take an examination of his aeronautical skills and knowledge.  It was accepted by the second respondent that such a decision is open to the kind of review sought.

By the notice of motion that is before me, the applicant seeks an order under s. 15(1) the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") suspending the operation of this examination decision until the determination of his Administrative Decisions (Judicial Review) ("ADJR") challenge.  Alternatively, he seeks an interlocutory injunction restraining the second respondent, now the Civil Aviation Safety Authority ("the Authority"), from engaging in conduct for the purpose of making a decision in terms of a letter from the second respondent to the applicant dated 28 June, 1995.

This letter by Mr. Taylor, an officer of the Authority, to the applicant refers to the direction that the applicant take the examination, something which the applicant was required to do by 27 June, 1995, and to his failure to do that.  The letter concludes:

"... you are invited to provide me, in writing, with any comments you may care to offer.  Any written comments received by me by 1200 hours on Friday 30 June 1995 will be taken into consideration in connection with such further action as the Authority may be taking in respect of this matter."

There is no secret about what the Authority intends to do.  Counsel for the Authority stated in the course of the hearing:

"... if it is not restrained from doing so ... [the Authority] will proceed to impose a suspension upon [Dr. Broadbent] until the examination is undertaken."

The object of the present application by the applicant is to prevent this occurring until there is a final determination of his challenge to the validity of the decision requiring him to submit to the examination.

The relevant facts concerning the making of a decision can be briefly stated.  The Authority alleges that the applicant committed two breaches of the Civil Aviation Regulations by entering controlled air space on 15 January, 1995 and again on 12 March, 1995.  The applicant was counselled in respect of the first matter and, on 30 March, 1995, following an interim suspension of his air crew licences to enable the second incident to be investigated, Mr. Taylor, in his capacity as a Senior Flying Operations Inspector, wrote to him advising:

"... I require, under subregulation 5.38 (1) of the Civil Aviation Regulations that you undertake an examination with a Flying Operations Inspector or Senior Flying Operations Inspector nominated by me."

As the delegate of the Authority, he also advised:

"I suspend your flight crew licences number 191880 as you have been required to undertake an examination under regulation 5.38."

Mr. Taylor concluded by advising that:

"... you may appeal my decision to require you to undertake an examination and my decision to suspend your licences."

The applicant took up this invitation and requested a review under regulation 5.39 of Mr. Taylor's decision that he take the examination.  Solicitors for the Authority accordingly advised:

"Because such a review is taking place, Mr Broadbent is no longer required to attend for an examination on the date fixed by Mr Taylor."

The applicant on 19 April, 1995 then challenged Mr. Taylor's decision suspending his licence in proceedings he brought in the Administrative Appeals Tribunal.  Those proceedings were twice adjourned at the Authority's request pending the making of the decision by the first respondent on the applicant's request for a review of Mr. Taylor's examination decision.  On 26 May last, the first respondent gave his decision under Civil Aviation Regulation 5.39 on the applicant's request for this review.  The first respondent, in his letter to the applicant of that date, advised:

"My decision is that; it is necessary in the interests of the safety of air navigation that you undertake an examination in each of the following topics

-the Flight Information Service,

-VFR Flights Entering Control Area Steps or Primary Control Zones,

-Air Traffic Clearances and Instructions, Hazardous Weather Reporting

to demonstrate that you continue to possess the aeronautical skills and aeronautical knowledge appropriate to a flight crew licence in these areas only."

He also said in the course of this letter:

"My reasons for the decision are, that based on the information and evidence available to me

1.I am satisfied that you entered controlled airspace without a clearance on 15 January 1995 and 12 March 1995;

2.I am not satisfied that you are sufficiently familiar with the requirements relating to the items subject to examination as detailed above.

The examination will be conducted by District Flight Operations Manager, Brisbane District Office, Mr John McGhie, at 1300 hrs on 08 June 1995."

On 2 June, 1995, at the applicant's request, the examination was adjourned to 27 June, 1995.  On 23 June, 1995 the present ADJR application challenging the first respondent's review decision of 26 May last was filed.  On 30 June, 1995, I granted the applicant an interim injunction restraining the Authority until Thursday, 6 July, 1995 from suspending, cancelling or attaching any conditions to the applicant's pilot's licence which would prevent or restrict his exercising the rights he now has pursuant to that licence but only insofar as the Authority may seek to rely in justification of any action by way of suspending, cancelling, or attaching restrictive conditions to the applicant's licence upon events that have occurred prior to 10 a.m. on 30 June, 1995 or upon circumstances that existed as at 10 a.m. on that same day.

This injunction was issued to enable the applicant's application for a stay and interlocutory injunction to be heard, something that occurred on 6 July last.  The interim injunction of 30 June, 1995 was then extended until today.

The respondents' first submission is that despite the first respondent's review of 26 May, 1995 of Mr. Taylor's decision of 30 March, 1995 requiring the applicant to take an examination, Mr. Taylor's other decision of 30 March, 1995 suspending the applicant's licence has never been revoked; it remains effective, and it would therefore be futile, so it was said, to grant either the stay or the interlocutory injunction now sought that aim at depriving the first respondent's review examination decision of 26 May, 1995 of effect until the applicant's ADJR challenge to that decision is determined.

I do not accept that submission.  Firstly, as a matter of interpretation of Mr. Taylor's suspension decision recorded in his letter of 30 March, 1995, it seems to me that, quite apart from any question as to the width of the statutory power of suspension available to Mr. Taylor on 30 March, 1995, all he then purported to do was to suspend the applicant's licence until the applicant took the examination that he required.  This suspension was in terms limited until the applicant took the examination that Mr. Taylor directed him to take, pursuant to regulation 5.38.  The first respondent's review decision of 26 May, 1995 required in terms that the applicant undertake a different examination from that earlier required by Mr. Taylor.  After 26 May, 1995, the obligation to take Mr. Taylor's examination was no longer effective, having been replaced by the new obligation to take the first respondent's examination.  The suspension imposed by Mr. Taylor was in terms linked to the taking of Mr. Taylor's examination, and did not purport to operate as a licence
suspension until the examination he directed was taken, or until the making of any decision reviewing his decision.

Secondly, even if Mr. Taylor's suspension decision of 30 March, 1995 could be read as such a wide-ranging suspension, it would in my opinion be beyond power.  Regulation 5.38(1) provides:

"If a senior flying operations inspector considers it necessary in the interests of the safety of air navigation, the inspector may give the holder of a flight crew licence, a special pilot licence, a certificate of validation, a flight crew rating or an aircraft endorsement, notice in writing:

(a)requiring the holder to undertake an examination specified by the inspector to demonstrate that the holder continues to possess the aeronautical skills and aeronautical knowledge appropriate to the licence, certificate, rating or endorsement; and

(b)setting out the reasons for the inspector's decision; and

(c)setting out the time and place of the examination."

Regulation 5.38(2) provides:

"A person who is given a notice under subregulation (1) must not:

(a)refuse to undertake an examination; or

(b)without reasonable excuse, fail to attend at the time and place set out in the notice;

unless the person has requested review under regulation 5.39.

Penalty:$2,500."

Regulation 5.39, under which the first respondent acted to require the applicant to take the examination fixed for 7 June, 1995 and later extended to 27 June, 1995, provides:

"(1)If a notice under regulation 5.38 is given to the holder of a flight crew licence ... the holder may request the Authority to review the decision to issue the notice.

(2)...

(3)If the Authority receives a request, a regional flying operations manager must conduct a review of the decision and make a fresh decision.

(4)A manager who makes a fresh decision under subregulation (3) must give the holder notice of the decision.

(5)If the manager decides that it is necessary in the interests of the safety of air navigation that the holder undertake a specified examination, the manager must:

(a)set out the reasons for the decision; and

(b)set out the time and place of the examination; and

(c)specify the examination;

in the notice.

(6)A person who is given a notice under subregulation (5) must not:

(a)refuse to undertake the examination; or

(b)without reasonable excuse, fail to attend at the time and place set out in the notice.

Penalty:$2,500."

Regulation 265(1), under which Mr. Taylor as delegate of the respondents acted on 30 March, 1995 to impose the only licence suspension that has been imposed to date on the applicant, provides:

"If:

(a)...

(b)a senior flying operations inspector requires the holder of a licence to undergo an examination under regulation 5.38;

the Authority may suspend the licence by giving the holder of the licence written notice of the suspension."

As is made clear by regulation 265(2) and (3), such a suspension operates only until the results of the examination required by the senior flying operations inspector referred to in regulation 265(1)(b) are known, i.e., until the results of the examination required under regulation 5.38 are known.

Whatever be the terms in which the suspension is imposed, pending the results of the examination directed by the senior flying operations inspector under regulation 5.38, it can never lawfully operate beyond the making of a review decision under regulation 5.39.  If the review decision is that there is to be an examination, it is a different examination from that directed by the Senior Flying Operations Inspector under regulation 5.38 and there is nothing upon which the suspension imposed under regulation 265(1)(b) can lawfully continue to be founded. 

There is no express power in the regulations to suspend the licence upon the review under regulation 5.39 of a decision requiring examination under regulation 5.38 which was accompanied by a suspension order under regulation 265(1)(b) until the results of the review examination are known.  This may well be the result, as counsel for the Authority suggested, of an oversight when the review procedure contained in regulation 5.39 was introduced for the first time into the regulations in 1992.  Regulation 269 may in such a case empower the Authority to impose a suspension pending the outcome of an examination required by the review decision under regulation 5.39, since an examination can only be required under that last-mentioned regulation, where a regional manager of the Authority decides that it is necessary in the interests of air safety.  The scope of regulation 269 was not, however, debated in argument.  But it is clear that the Authority did not in this case purport to exercise any power which may have been available to it under regulation 269 to suspend the applicant's licence following the first respondent's review decision that he take the examination directed by him. 

So far as the applicant's application for a stay of the operation of the first respondent's examination decision is concerned, I do not think it is open to me now to grant that form of relief.  All that the applicant seeks now to stay is the operation of the decision that he take an examination by 7 June, 1995, a requirement extended at his request to the 27 June, 1995.  The application for the stay was not filed until 30 June, i.e., until after the time allowed to the applicant to comply with the examination decision had expired.  In my view, the operation of that examination decision was spent as from 27 June, 1995.  What consequences flow from the applicant's failure to comply with it are governed by the provisions of the Civil Aviation Regulations that deal with what the Authority can do following upon such a failure. 

Section 15(1)(a) the ADJR Act arms the Court with power to relieve a person from compliance with continuing obligations which the order imposes on him. Section 15(1)(b) arms the Court with power to relieve a person from the consequences of his failure to comply with an order to which consequences he becomes exposed once the time for compliance with the order has passed. It appears to be open to the Authority under regulation 269(1)(a) to impose a penalty on the applicant because of his failure to comply with the examination order: see regulation 5.39(6), and also to suspend or cancel his licence because of his contravention of regulation 5.39 constituted by his failure to undertake the examination. Any proceedings taken by the Authority because of the applicant's failure to comply with the first respondent's examination order can in my opinion be described as "proceedings under the decision" which the Court could stay under s. 15(1)(b) the ADJR Act. If this were an appropriate case for a stay under s. 15(1)(b), I would amend the notice of motion and grant the stay.
The discretion conferred by s. 15 the ADJR Act is a broad one.  It is wide enough to enable a short stay to be ordered on sparse material, to enable an interlocutory application to be made on proper material:  see Snow v Deputy Commissioner of Taxation (1987) 14 F.C.R. 119. There, French J concluded at 131:

"The discretion is broad and its scope best expressed by the kind of broad terminology used in Perkins v Cuthill even though in many cases the practical application of that formulation may be little distinguishable from the application of principles governing the grant of interlocutory injunctions."

In Perkins v Cuthill (1981) 34 A.L.R. 669, Keely J said at 671:

"In my opinion s 15(1)(a) requires an applicant to satisfy the court that reasons or circumstances exist which make it just that the court should make the order sought, but it is not necessary for the applicant to show that those reasons or circumstances are in any sense `special' or `exceptional'."

French J's qualification that in many cases the practical application of the Perkins formulation will be little different from the application of the principles governing the grant of interlocutory injunctions was justified by the Full Court decision in Faingold v Zammit (1984) 1 F.C.R. 87. There, when dealing with the submission that, by refusing a stay under s. 15 the ADJR Act, the primary judge had wrongly applied the test for deciding whether an interlocutory injunction should be granted rather than that stated in Perkins, the Full Court said at 92:

"In our opinion it will be difficult for an applicant to show that reasons or circumstances exist which make it just that the court should make the order sought unless it is demonstrated that the applicant has a point of substance to argue which, if successful, will result in judgment in his favour.  In this respect it does not appear to us that the two tests are, in practical terms, very different."

The applicant relied on the decision of Lee J in Monoher v Minister for Immigration, Local Government and Ethnic Affairs (1991) 24 A.L.D. 405. I take that decision to affirm the width of the discretion conferred by s. 15 and the consequence of that, viz., that the discretion is not constrained as a matter of law by the rules governing the grant of interlocutory injunctions in litigation between private citizens. However, I do not understand it to depart from the approach taken by the Full Court in Faingold.  It was by reference to Faingold that French J, in Snow, reached his conclusion as to the proper operation of s. 15, a decision referred to with approval by Lee J.

I adopt that approach.  I do not consider that the applicant has a case on the material before me which, if made out at the final hearing of his application for review, is likely to result in the overturning of the first respondent's examination decision.

The applicant's counsel was given opportunity to identify the bases upon which the applicant contended that that decision was flawed by the limited kinds of error that are reviewable under the ADJR Act.  It is apparent that the burden of the applicant's case is that the first respondent reached a number of wrong factual conclusions in deciding it was appropriate to order the applicant to submit to examination.  That may turn out to be so, but even if it is so, it will not be enough to justify the overturning of the decision in ADJR proceedings.  So far as concerns the fact finding process which an administrative official undertakes to arrive at a decision, of which the one of present concern is an example, questions of the proper weight to be given to evidence and the making of findings of fact are, in general, matters for the official, not for the Court to determine on ADJR review.  It is only where the official has acted unreasonably in the Wednesbury sense that his fact finding exercise will be reviewable:  see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 C.L.R. 24 at 41.

By way of particulars of the grounds on which the applicant proposes to rely to attack the examination   decision - the ignoring of relevant considerations, the unreasonable exercise of the power to require the examination and the exercise of the power in abuse of the statutory authority conferred - a number of complaints were made that, so far as concerns those in paragraphs 2(a), (b), (d), (f), (g) and (h) of the application for review, took the form of an
allegation that the first respondent, firstly, failed to appreciate certain considerations and, secondly, failed to have regard or proper regard to those considerations.

It is unlikely that the applicant will, on the material before me, be able to show that the first respondent ignored any of those considerations.  The first respondent's decision either refers expressly to each of them, or to material before him, which he says he took into account in reaching his decision, which material expressly deals with those various considerations.  For example, as to paragraphs 2(a) and (b) of the application for review, counsel for the applicant conceded that the applicant's affidavit of 22 March, 1995, referred to by the first respondent as having been taken into account when he reached his decision, deals at length with the applicant's extensive aviation experience and qualifications.  The first respondent expressly referred to these matters as leading him to require the applicant to submit to a more limited examination that, but for the applicant's qualifications and experience, would have been directed.

By way of further example, so far as paragraph 2(c) of the application for review is concerned, it alleges that the first respondent did not consider whether either breach of the regulations had in fact occurred.  That is at variance with what the first respondent said in his decision about calling for and listening to the air traffic control tapes, important evidence that the breaches had in fact occurred, when the first respondent came to decide this issue adversely to the applicant.

Insofar as the conclusions on factual matters reached by the first respondent are concerned, I was not taken to any material that suggests that the applicant is likely to be able to show that those conclusions, whether right or wrong, are so wrong as to be tainted with Wednesbury unreasonableness.  By way of example, even though the applicant has wide expertise and extensive qualifications, those considerations by themselves are unlikely to be sufficient to show that the decision to require an examination was unreasonable, given the nature and relative contemporaneity of the two breaches the first respondent found the applicant had committed.

By way of further example, the complaint in paragraph 2(c), that the first respondent reached an erroneous conclusion, was not supported by reference to material showing that there was anything more here than a conflict of fact between what the applicant asserted had occurred and what other evidence, including the air traffic control tapes, suggested had occurred.  There was nothing that I was directed to which suggests that the conclusions adverse to the applicant which the respondent reached were not open to him, without exposing his conclusions to a charge of relevant unreasonableness.
         By way of further example, as to paragraph 2(d) of the application for review, it is unlikely, in view of the many references in the material that the first respondent said he had regard to, to the flights in question being instructional flights, that the first respondent ignored that consideration or that he ignored what the applicant had to say about, for example, the circumstances in which on 12 March, 1995, the applicant's aircraft entered controlled air space.  The latter point seems to me to throw up nothing more than a contested issue of fact as to whether the aircraft was forced into controlled airspace by extreme turbulence, as the applicant claims, or whether the aircraft entered controlled air space in the course of an uneventful training flight in circumstances
 in which the applicant did not realise his craft was doing that, as it is said he told an official soon after the event.

It is not for me to make a final determination on whether the examination decision is infected with reviewable error.  The material before the trial judge may well be more extensive than that before me.  I have said enough, however, to explain my conclusions that the applicant has not satisfied me that he has an argument, on the material presently available, which is of sufficient substance which, if accepted, will be likely to result in the decision for examination being overturned.  I should, however, in view of the seriousness of the complaint in paragraph 2(g) of the application for review, record that counsel for the applicant was unable to point to any material that might be sufficient to lay a basis for the allegation in that paragraph that the flight charts and data given to pilots by the Authority are so confusing as to lead even highly experienced pilots, such as the applicant, into error.  The following exchange took place between me and counsel for the applicant on this point:

"QWell, is there any evidence to support the proposition advanced in paragraph (g) that the order is invalid because Mr Fairbairn failed to take into account the rather worrying assertion made there?

AOther than the assertion itself, and there is no evidence that he had anything in relation to that before him.

QAll right.  No - well, hang on.  There is no evidence before me that the second respondent puts into circulation misleading information of a kind referred to in paragraph 2(g)?

AYes, that is right."

Moreover, nothing was put before me to show that the applicant was likely to suffer any particular detriment if the examination decision stands for the time being and, as is highly probable, the Authority suspends his licence for a time before there is a final determination on his challenge to the examination decision.  The applicant is in practice as a specialist surgeon.  He does not depend for his livelihood on his air pilot's licence, although it can be inferred that holding a licence enables him to supplement his medical income.  More importantly, it seems clear that the applicant's major concern is with the effect such an examination decision will have upon his reputation as a pilot.  He says in his application for review that he is aggrieved by that decision because:

"AThe decision will, or is likely to, have an adverse effect upon the Applicant's reputation and standing, both personally and in his capacity as a pilot;

BThe decision is likely to reflect adversely in the records of the Second Respondent relating to the qualifications and reputation of the Applicant to the effect that he may in future be considered not to be a fit and proper person to hold such licences, certifications and approvals presently held or that may be sought in the future."

Those concerns can, it seems to me, be fully met if the review application succeeds, even if the applicant is required to undergo a period of licence suspension that is served, either wholly or in part, before his review application is finally determined. 

It would not therefore be just to grant a stay under s. 15(1)(b). Subject to one consideration, what I have said is sufficient also to explain why an interlocutory injunction should not issue here to restrain the Authority from taking disciplinary action against the applicant in consequence of his failure to comply with the examination order, even though the validity of that order remains to be determined. The remaining consideration is this: as I said in my reasons for granting, over the Authority's objection, the interim restraint on 30 June last, there is no basis in the material before me for concluding that the conduct alleged against the applicant is such as to show that if he continues to fly he will constitute a real danger to the public; yet he may suffer all the consequences of his failure to comply with the examination order, in the form of a licence suspension, before he can demonstrate that the order is invalid and so cannot justify his suffering that detriment.

On 26 May, 1995, the Authority conceded, before the Administrative Appeals Tribunal, that as a result of the first respondent's decision there was no licence suspension thereafter in force and the applicant was free to fly.  Although the Authority has argued before me that it was in error in making that concession, the fact is that the Authority did not consider that the applicant's presence in the air for over a month from 26 May, 1995 to 30 June, 1995 constituted a real danger to public safety.  It is inconceivable, if it had thought otherwise, that it would not have acted very promptly after 26 May, 1995 to suspend the applicant's licence under, for example, regulation 268.  Although I was told that this was the Authority's present view, no explanation sufficient to explain the lack of action by the Authority after 26 May, 1995 was offered, if that view was truly dictated by concern that the applicant's presence in the air was a serious risk to air safety.  I therefore infer that the Authority's concern is to ensure that pilots - even highly experienced ones such as the applicant - must abide by the disciplinary framework for flying that is contained in the Civil Aviation Regulations and that an attitude that the particular pilot is the best judge of whether he needs to obey the regulations is one that can properly be regarded as inimical to the maintenance of this regulatory air safety framework.  As such, it seems to me that it can properly attract the sanctions open to the Authority, such as requiring the particular pilot to undergo examination, even though he personally regards it as an affront to his standing as a pilot.

Given that I do not accept, on the material before me, the assertion by the Authority that the applicant's continued presence in the air presents a real risk to air safety and that the likely object for the examination order was to vindicate more general air safety considerations by impressing on the applicant that even a pilot as experienced as he is is not at liberty to repeatedly ignore the Civil Aviation Regulations, I was concerned about whether the approach reflected in Erinford Properties Ltd. v Cheshire County Council (1974) 1 Ch. 261 did not require that the injunction sought be granted to ensure that the applicant's review application, if well founded, would not be rendered a nugatory exercise, i.e., that it would not turn out, if successful, to have all been in vain. The relevance of this principle to the area of administrative law, in which the citizen has a statutory right to have an administrative decision affecting him reviewed, was not debated before me. However, in view of what I have had to say about the concerns that appear to have caused the applicant to seek a review of the examination order, his review application will not be in vain if the interlocutory injunction is refused and he undergoes the period of suspension, but it turns out not to have been justified because the examination order was invalidly made. The applicant's notice of motion is therefore dismissed.

I certify that this and the preceding
21 pages are a true copy of the
reasons for judgment herein of the
Honourable Justice Drummond.

Associate:

Date:        10 July, 1995

Counsel for the applicant:           Mr. G.J. Radcliff

Solicitors for the applicant:        Robinson Robinson &

Downing

Counsel for the respondents:         Mr. S.L. Doyle

Solicitors for the respondents:      Mallesons Stephen Jacques

Date of Hearing:  6 July, 1995