Castellano, Daniel v Inspector-General in Bankruptcy

[1998] FCA 303

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - judicial review - an appeal from a decision of the Administrative Appeals Tribunal to refuse an extension of time in which to make an application for review of an administrative decision - principles governing extensions of time - whether uncontested evidence should be accepted by the Tribunal - principles governing the acceptance of uncontested evidence.

Bankruptcy Act 1966 (Cth) - s 139W, subs 149D(1)(b), subs 149D(1)(d)
Administrative Appeals Tribunal Act 1975 (Cth) - s 44(1)

Hunter Valley Development Pty Limited v Cohen (1984) 3 FCR 344 - applied
Wedesweiller v Cole (1983) 47 ALR 528 - cited
Holman v Holman [1964] 81 WN (Part 1) (NSW) 374 - applied

DANIEL CASTELLANO -v- INSPECTOR-GENERAL IN BANKRUPTCY

NG 625 OF 1997

FOSTER J

9 FEBRUARY 1998

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		NG 625 of 1997

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	DANIEL CASTELLANO APPELLANT
AND:	INSPECTOR-GENERAL IN BANKRUPTCY RESPONDENT
JUDGE:		FOSTER J
DATE OF ORDER:		9 FEBRUARY 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 625 of 1997

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	DANIEL CASTELLANO APPELLANT
AND:	INSPECTOR-GENERAL IN BANKRUPTCY RESPONDENT
JUDGE:	FOSTER J
DATE:	9 FEBRUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Extempore)

This is an appeal brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of Deputy President McMahon which was given on 15 July 1997. By that decision the learned Deputy President refused the present appellant’s application for an extension of time in which to make an application to the Administrative Appeals Tribunal (the “Tribunal”) from a review decision of the Inspector-General in Bankruptcy. The review decision concerned an objection to discharge from bankruptcy lodged by the Official Trustee. Having refused that extension of time, the Deputy President also dismissed the substantive application.

The appeal to this Court under s 44(1) is, of course, an appeal on a question of law only. This Court has no jurisdiction to reconsider any questions of fact which fell for decision by the Tribunal. Under this section it is necessary for the appellant to demonstrate that the Tribunal, in reaching the decision that it did, erred in law. It has not infrequently been said that mere error of fact-finding on the part of a tribunal cannot provide the basis for an appeal where that appeal is restricted to questions of law only.

The appellant, Mr Daniel Castellano, became bankrupt in 1993.  In the ordinary course of events it appears that he would have received an automatic discharge from his bankruptcy on 20 October 1996.  However, pursuant to the legislation, the Official Receiver on behalf of the Official Trustee lodged an objection in statutory form to the discharge of Mr Castellano from his bankruptcy.  That objection was lodged on 18 October.  It had the effect at law of extending the period of the bankruptcy until 20 October 2001.  The objection referred to two grounds. 

The first ground was pursuant to subs 149D(1)(b) of the Bankruptcy Act 1966 (Cth). It alleged that:-

“After the date of the bankruptcy the bankrupt continued to manage a corporation as mentioned in section 91A of the Corporations Law without having been given leave to do so under s 229 of that Law”.

Particulars of this ground were given in the notice.  They amounted to an assertion that the bankrupt had acted as a “de facto” director of the company involved in the day-to-day running of the company and had signed guarantees for the supply of goods to the company.  Indeed, it made reference to the fact that the bankrupt had suffered a judgment upon a guarantee given in respect of a debt of the company in question. 

The second ground was based on subs 149D(1)(d). It alleged that:-

“The bankrupt, when requested in writing by the trustee to provide written information about the bankrupt’s property, income or expected income, failed to comply with that request.”

The particulars of that ground were as follows:-

“Income Questionnaires were forwarded by the trustee to the bankrupt on 7 April 1994, 11 August 1994 and 20 August 1996 at his residential address at 145 Jersey Road, Bringelly.  The questionnaires required the bankrupt to provide details of his income during his bankruptcy.  The bankrupt has not completed and returned any of these documents.”

Copies of the front pages of the documents were annexed.  The stated grounds continued:-

“Further letters were forwarded by the trustee to the bankrupt on 9 May 1994 and 4 October 1994 at his residential address.  The letters required the bankrupt to provide certain documents to the trustee including copies of his group certificates, income tax returns and other particulars in respect to the income derived by the bankrupt during the contribution assessment periods”.

The objection notice went on to state that the bankrupt had not provided those documents.  Reference was also made to an interview on 14 June 1994 between the bankrupt and an official of the Official Receiver at the Official Receiver’s office when a request was made to the bankrupt to provide the documentary evidence of his income and full particulars of his employment during the bankruptcy.  No documents were provided.  I should indicate that the questionnaires and the letters to which reference is made in the notice of objection were before the Tribunal and are before this Court by way of being annexures to the affidavit of the applicant of 14 July 1997.  The file note of the face to face interview in the office was also part of the evidence in the proceedings before the Tribunal and is also before this Court.  It is convenient to state at once that, in my view, those documents are properly described, both as to the content and their effect, in the notice of objection.

The notice of objection went on to assert that the bankrupt’s failure to comply with these requests for information had hindered the trustee in making an assessment under the provisions of s 139W of the Bankruptcy Act and that his investigations had also been hindered.  There was also a note which spelt out to the bankrupt his rights in relation to the notice of objection and its effect in extending the period of the bankruptcy.  The bankrupt was thus told in writing that he could make a request to the Inspector-General of Bankruptcy to review the decision to lodge the objection or he could appeal to the Administrative Appeal Tribunal or he could do both.

The notice of objection further indicated that if, having requested the Inspector-General to make a review of the decision to lodge an objection, there was dissatisfaction with the Inspector-General’s decision, an appeal could be lodged with the AAT.  Further directions were given as to the procedure to be followed in seeking a review from the Inspector-General.  In fact, Mr Castellano followed the course of requesting a review by the Inspector-General by lodging a document headed Request to Review Lodgment of Objection. 

The Request to Review document is set out in a formal way.  The Deputy President expressed the view in his judgment (to which I shall come later in these reasons) that it appeared to have been prepared by someone with a significant degree of education who had some acquaintance with law.  I would say that that assessment of the document is one that appeals to me as being likely to be correct.  The document made certain statements which have been the subject of submissions.  It asserted in relation to the objection on the ground of employment with a corporation in the role of a director that:-

“I was employed by the corporation in sales, stock control and general duties and I reported to the directors and acted upon their instructions.”

It went on to say that the ground in the objection notice had “no basis in fact”.  It also asserted that the income statement for 1994-1995 had been completed and was attached to the request for review.  It said the same in respect of the income statement for 1995-1996.  Reference was also made to certain personal problems in the life of the appellant, in particular, a personal loss associated with the deaths of his father and brother.

That request for review of the lodgment of the objection was considered by a delegate of the Inspector-General. A reply was promptly given to the request. On 18 November 1996, in a six page document, the Inspector-General refused the request and confirmed the decision of the Trustee and referred to the appellant remaining bankrupt until 21 October 2001. The document sets out relevant provisions from the bankruptcy legislation in the first two pages. It then refers on the third page to the evidence with which it had been supplied. On pages 4 and 5 it reviews the material applicable to the ground taken under s 149D(1)(b). It makes reference to certain principles of law which are not in dispute, and then states:-

“I must therefore conclude that you have continued to manage a corporation in contravention of s 91A of the Corporations Law without first being given permission under s 229 of that Law”.

On pages 5 and 6 the ground taken under s 149D(1)(d) is considered. The comment is made that, although completed income questionnaires for the periods referred to had been attached, the documentary evidence concerning the income which had been previously requested by the Trustee had not been provided. The point was also made that the appellant “did not respond to the trustee’s requirement for the information until you sent your request to review”.

Under the heading “Reasons” the Inspector-General says:-

“The trustee is obliged to obtain information concerning the income or expected income of a bankrupt.  The bankrupt is also obliged to comply with such requests.  The obligation is regarded to be extremely serious as there are several sections of the Act which are affected or deal with income, other than the Division.”

Reference is then made to those sections.  The reasons continue:-

“Your failure to provide this information necessarily resulted in the trustee being unable to fulfil his obligations under the Act.  The trustee has given you what I consider more than ample time to provide the information.  You have failed to do so.”

Then details of the failure to provide are set out.  The reasons continue by concluding that Mr Castellano had “failed to provide written information about your income when requested in writing by the trustee to do so”.  The document ends by providing Mr Castellano with advice as to his rights in relation to the decision.  As this paragraph has been the subject of some submissions, I think I should set it out in full in these reasons.  It reads as follows:-

“In accordance with subsection 149P(3), I now advise that if either the bankrupt and/or the trustee is dissatisfied with this decision an appeal may be made to the Administrative Appeals Tribunal. Under subsection 29(1) of the Administrative Appeals Tribunal Act, 1975, an application to the Tribunal for a review of a decision must be in writing in accordance with the prescribed form.”

Reference is made to the form and the paragraph continues:-

“Any application must set out the reasons for the application, and, it should be made within 28 days of the date on which the bankrupt receives this letter.  I have today posted this by ordinary mail and I will consider this to be sufficient delivery within 48 hours of today’s date. 

A copy of this letter has also been delivered to the trustee by hand.”

The applicant did not appeal to the Administrative Appeals Tribunal within the period of 28 days referred to in this paragraph.  It is clear on the evidence that he made approaches to his creditors by way of setting up a creditors’ meeting and proposing that a significantly small figure be accepted in full discharge of his outstanding debts.  This offer was not accepted by the creditors.

Thereafter the application was made to the Administrative Appeals Tribunal.  That application was the subject of the decision from which this appeal is brought.  At the time there was also an application for an extension of time to bring the appeal since the appeal was already out of time by approximately six months.  The appeal came before the learned Deputy President on 15 July 1997 and he gave his judgment on that day.  The material placed before him consisted of an affidavit by the appellant Daniel Castellano annexing a number of documents to which I shall make reference, and an affidavit by Louise Anne Thompson who was the officer who had made, on behalf of the Inspector-General, the decision with respect to the application for review of the objection to discharge from bankruptcy.  Ms Thompson’s affidavit annexed some of the documents already annexed to the affidavit of Mr Castellano, together with two documents, to which I have already made reference, which dealt with the holding of the creditors meeting and its result.

There was no cross-examination of either deponent and the matter was consequently decided by the Deputy President on the basis of the affidavit and documentary material and the submissions made by counsel.  Those submissions, both oral and in writing, were comprehensive as indeed have been the submissions which have been made to me in this present appeal and which I have found very helpful.

The Deputy President had before him, of course, an application for extension of time.  His decision whether to grant or refuse such an application was essentially a discretionary one but it was a discretion to be exercised in accordance with principles in relation to extension of time applications which have developed in the course of judicial decision-making over the years.  The major principles to which he obviously had reference have been, if I may say so with respect, usefully collected in the decision of Wilcox J in Hunter Valley Development Pty Limited v Cohen (1984) 3 FCR 344 at pages 348 to 350.

The passage in which these principles are enunciated has frequently been the subject of citation in reported cases and I feel no need to set out the passage extensively here.  The main headings have been usefully summarised in the respondent’s written submissions which I will quote with some editing.  They proceed as follows:-

“(a) The prescribed period of 28 days is not to be ignored.  Indeed, it is a prima facie rule that proceedings commenced outside that period will not be entertained.  It is a precondition to the exercise of discretion in his favour that the Applicant for extension show ‘an acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time;

(b) consideration of the other action taken by the Applicant is relevant to the question of whether an acceptable explanation for the delay has been furnished;”

I consider I should add somewhat to that statement of principle because it has been the subject of some submissions to me.  The “other action” contemplated in it is not at large.  The paragraph from the decision of Wilcox J makes this quite clear.  His Honour, with appropriate reference to authority which I shall not repeat, adds, in relation to that principle, as follows:-

“A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not ‘rested on his rights ...’) and a case where the decision-maker was allowed to believe that the matter was finally concluded...  The reasons for this distinction are not only the ‘need for finality in disputes’ but also the ‘fading from memory’ problem...”

It is important, therefore, to bear in mind in an extension of time application that when regard is paid to activities by the applicant, which have been undertaken instead of making the appropriate application, those activities are of significance only if they are such as to have brought to the attention of the respondent to the application that the applicant has it in mind, even though he is becoming out of time, to take some steps to assert the rights which would be given effect by his making the relevant application.  Conversely, he will have it count against him in the application if he has taken steps which might allow the respondent to think that the matter had come to an end. 

I will return to that aspect of the case but I continue now by setting out the principles which have been summarised from the Hunter Valley judgment.  They are:-

“(c)  any prejudice to the Respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension;

(d)  mere absence of prejudice is not enough to justify the grant of an extension.  Public considerations often intrude;

(e)  the merits of the substantial application are properly to be taken into account; and

(f)  considerations of fairness as between the Applicants and other persons otherwise in a like position are relevant.”

It may be noted that in Wedesweiller v Cole (1983) 47 ALR 528, Sheppard J enunciated the law to similar effect. I do not understand it to be said in relation to the judgment under appeal that the learned Deputy President did not have in mind these general principles applicable to extension of time applications. The attack that is made upon the judgment is based, rather, upon errors of law which are said to have intruded into his reasoning processes when he was seeking to apply these principles to the case before him. The simplest course for me to follow, in my view, is to consider the reasons for judgment of the Deputy President as they have been recorded and, whilst doing that, to consider the errors of law alleged to have been committed in the course of judgment.

The learned Deputy President indicated that:-

“The starting point in all these applications for extension of time is that the prescribed period is not to be ignored.”

He expanded somewhat on this theme in words which could not be the subject of any criticism and which clearly follow the principles to which I have made reference.   He then continued to state that the most important fact the applicant had to establish was an acceptable explanation for the delay.  He stressed that the delay had been almost six months and that “the longer the delay the stronger must the explanation be”.

He then indicated, and this appears to be entirely correct, that Mr Castellano’s explanation was basically that he did not understand his rights and that he had not obtained formal advice in respect of making the appeal until May 1997, shortly before the application to the Tribunal was made.

This explanation was not accepted.  It is put cogently on behalf of the appellant that in failing to accept the explanation the learned Deputy President fell into error of law.  The error of law arose in the circumstances that there had been no cross-examination of the appellant in relation to the material in his affidavit; in particular, no cross-examination in relation to his assertion that he had not understood the provisions relating to appeal from the Inspector-General’s decision to the Tribunal and of his rights in relation thereto. 

In evaluating this submission, it is necessary that I have regard to the law which has evolved in relation to the acceptance or non-acceptance of uncontested evidence from a witness, whether oral or documentary.  This question has been addressed in a number of reported cases and it is convenient to cite from the case of Holman v Holman [1964] 81 WN (Part 1) (NSW) 374, as this case has been the basis of argument which has been addressed to me.

In that case Sugerman J, with whom the other Justices agreed, said (at 378):-

“Leaving aside questions of the witnesses’ demeanour or manner, it may be said that in general uncontradicted evidence in an uncontested proceeding which is not improbable or unreasonable should be acted upon.”

And authority is cited.   The passage continues:-

“‘We think’ McCrossan S.P.J. said in Sheehan v Wolfe ..., ‘our functions and usefulness as a court of appeal would be very much impaired if we were bound to uphold a judgment of justices which affected to disbelieve uncontradicted testimony on its face not unreasonable and probable ...  A manifest rejection of uncontradicted evidence must be explained by some circumstances appearing from the evidence itself, and must be not unreasonable’.”

In my view, that passage sets out the approach that must be adopted by a tribunal of fact when dealing with the assessment of uncontradicted testimony given during litigation before it.  Basically, if that testimony is to be rejected by the tribunal, there must be an assessment by the tribunal as to whether it lacks probability and then, if it is decided to reject it, the rejection must be the subject of explanation.  No more and no less is required.  As I apprehend the position, uncontested evidence, or evidence not cross-examined upon, is not automatically to be accepted.  It can be rejected for good reason which should be the subject of expression by the tribunal of fact.  In the absence of those desiderata being adhered to, error of law can appear on the face of the judgment.

It is put to me that error of law of that kind has occurred here in relation to the Deputy President’s rejection of Mr Castellano’s explanation of his failure to understand his rights.  It is appropriate that I set out what the learned Deputy President had to say in regard to his rejection of this explanation.  He said:-

“I find that difficult to accept.  I do not see any obscurity in the notice attached to the original decision, the Caddy decision of 18 October 1996 but whether or not there was any obscurity there or any confusion in Mr Castellano’s mind the real test is to see whether he was unaware of his rights following the decision under review, namely the decision of the Inspector General on 18 November 1996. 

Mr Castellano’s evidence is that he read the six-page letter and he stopped reading when he got to the first paragraph of the decision on page 6.  I just do not find this credible.  He is asking me to believe that he has read all of the letter except the very last paragraph which is in the plainest terms.  The last paragraph in plain English advises that if Mr Castellano is dissatisfied with the decision an appeal may be made to the Administrative Appeals Tribunal.   The last paragraph goes to some length to emphasise that any application must set out the reasons for the application and it should be made within 28 days of the date on which the bankrupt receives this letter.   It concedes 48 hours for delivery and indicates that the 28 days are to run from the expiration of that 48 hours.”

The Deputy President went on to say that the language was not obscure, the advice was plain and that anyone reading the letter would have known, had they read it, what the position was in relation to an appeal.  He gave consideration to Mr Castellano’s evidence that he, Mr Castellano, was a carpenter not a lawyer but the Deputy President went on to say that Mr Castellano was a man of business who had been in the building trade for 20 years since the age of 15.  He indicated that he could not accept Mr Castellano’s statement that he did not understand the meaning of the paragraph.  He also went on to refer to the fact that the review by the Inspector-General had been initiated by the objection document which had been forwarded by Mr Castellano.  I have made some reference to that document.  The Deputy President indicated that it appeared to have been drafted by:-

“... somebody who is aware of the requirements of the Corporations Law and of the Bankruptcy Act and who has used that knowledge in preparing a formal document.”

Upon reading the  response from the Inspector-General to his request for review, the appellant, according to his affidavit, was in a state of shock at the statement that his bankruptcy had been extended, and in that state of shock failed to appreciate what was stated immediately thereafter in the written response as to the effect of the appeal rights that he had to the Administrative Appeals Tribunal.  The Deputy President said this in relation to the assistance which had been provided in the preparation of the Request for Review document itself:-

“If that knowledge was available to prepare the objection I think it is reasonable to infer, even though there is no positive evidence to the contrary, positive evidence one way or the other, it is reasonable to infer that that assistance was available after the letter was received.”

He continued:-

“The request to review the Trustee’s decision was made on 6 November and the response to that request was given on 18 November.  It stretches credulity too far to ask me to believe that a person who was available for assistance 12 days earlier was not available to assist on receipt of the letter from the Trustee 12 days later.”

These latter statements in the judgment in relation to assistance from an educated and informed person have also been the subject of submissions as to error of law.  It is said that there was such error in that there was no evidentiary basis upon which those inferences could properly be drawn. 

I pause to consider, then, the two errors of law so far asserted in relation to the Tribunal’s reasons.  So far as the submission that the Tribunal had committed such an error by its rejection of uncontradicted and apparently reasonable evidence is concerned, I have decided not to accept it.  It is a necessary part of that submission that the Tribunal had failed to provide reasons for the rejection.  This is simply not so since the Tribunal, in the passages to which I have made reference, has indicated with some precision the basis on which that aspect of the applicant’s case has been rejected.  Once again I stress that it is not for this Court to enter into questions of fact.  The Tribunal has had before it the problem of  deciding whether it should accept the evidence of the appellant which was not contradicted and not cross-examined upon, as against inferences which it was prepared to draw from the documents which had been placed before it.  The learned Deputy President made a decision of fact in rejecting that aspect of the case.  No error of law was involved.  It is invulnerable to appeal. 

So far as the second matter is concerned, there is no direct evidence that the unknown assistant was available to the appellant at the time when he received the rejection from the Inspector-General, together with its notification as to his rights of appeal.  The learned Deputy President was impressed by the fact that the appellant had clearly received a significant level of assistance only a fortnight before and in relation to the very subject matter of the review request being made to the Inspector-General.  In my opinion, it was open to him to infer, in the absence of any evidence to the contrary being given in the affidavit of the appellant that the assistance was for some reason or other no longer available, that it was, in fact, available, and that in those circumstances the refusal would have been referred to the assistant with every likelihood that had there been any confusion in Mr Castellano’s mind as to his rights of appeal, it would have been set at rest from that source.  I am satisfied that this was a finding of fact which was open and accordingly the submission must be rejected. 

The judgment goes on to deal with the question of prejudice.  Complaint is made that in dealing with this question insufficient regard has been paid to matters raised by Mr Castellano in his affidavit, both as to personal problems that he was experiencing throughout some parts of the periods in question, and perhaps more particularly, to the effect that ongoing bankruptcy would have upon any ambitions he might have towards becoming a self-employed builder in the future.

The Deputy President said of Mr Castellano’s potential prejudice:-

“It may be that Mr Castellano will continue to suffer the difficulties of being an undischarged bankrupt.  That is the prejudice he will suffer of course.”

It is quite plain that the particular matters of prejudice were the subject of exposition in Mr Castellano’s affidavit and the subject of submissions to the Tribunal.  In my view, no error of law can be said to have been committed by the failure of the Tribunal to have set out in relation to the question of prejudice, the specific matters of prejudice alleged.  To require that of any tribunal, administrative or otherwise, is to impose a quite unnecessary burden upon the decision-maker and there is no reason to suppose that the precise matters of prejudice would not have been present in the Tribunal’s mind and adequately considered.  Putting it another way, the appellant has fallen far short of demonstrating a failure in law to consider properly this aspect of the appellant’s case.

The Tribunal then goes on to consider the merits of the application.  This is a matter which was necessary for it to consider if it were properly to exercise its discretion in relation to the extension of time.  It was not, of course, required to make any definitive finding on the merits of the case for the purpose of the application for an extension.  It was only required to ascertain whether there was some worthwhile case which stood behind the application for an extension of time and which could be agitated by the appellant with respect to the failure of the Inspector-General to find in his favour.

It is quite clear from the judgment that each of the twin grounds were considered, that is, it was considered whether the appellant was putting forward a case that he was not, in fact, involved in the management of the corporation after his estate had been sequestrated, and that he had some answer to the significant problem facing him, given his failure to cooperate with the trustee, in neglecting to answer the trustee’s entirely proper requests for information as to his employment and earnings and the like.

As I read the judgment, the Deputy President did not find it necessary to reach a conclusion on the management allegations.  This was in circumstances where, as he said:-

“... there cannot be any issue on the other aspect, namely the failure to provide the information within the time limited.”

Although he does not set out what appears in the affidavits and the documents annexed to them in this part of his judgment, it is clear in my view that he had regard to the letters, to which I have made reference, that passed from the trustee to Mr Castellano.  Those letters required information and even alerted him to the prospect that an objection would be lodged to the termination of his bankruptcy if the information were not provided.  There was also before the Deputy President the file note of the face to face interview during which the information was sought.  Having regard to the onus that is cast in these proceedings upon an appellant seeking an extension of time, the Deputy President was quite entitled, in my opinion, to come to the view that the appellant had placed before him nothing which could significantly alter the effect of that correspondence.  He said:-

“The application would be doomed to failure in any event and it would not be an injustice to bring this matter to an end at this stage ...”

Nothing that has been placed before me and nothing that has been submitted to me in the very exhaustive and comprehensive argument on behalf of the appellant satisfies me that any error of law is to be found in the reasons of the Tribunal.  In those circumstances I reject this appeal with costs.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:             9 February 1998

Counsel for the Applicant:	Mr G. J. Jones
Solicitor for the Applicant:	Smith Monti & Costa
Counsel for the Respondent:	Mr A. P. Spencer
Solicitor for the Respondent:	Gordon & Johnstone
Date of Hearing:	9 February 1998
Date of Judgment:	9 February 1998