Conley v Minehan

[1999] NSWCA 432

CITATION:	MICHAEL CONLEY v STEPHEN MINEHAN [1999] NSWCA 432
FILE NUMBER(S):	CA 40665/98
HEARING DATE(S):	21 May 1999
JUDGMENT DATE:	25 November 1999
PARTIES :	Michael CONLEY as Executor of Estate of Robert GOATLEY v Stephen MINAHAN
JUDGMENT OF:	Mason P at 1; Powell JA at 46; Beazley JA at 47

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 6923/95
LOWER COURT JUDICIAL OFFICER:	Ainslie-Wallace J

COUNSEL:	Appellant: M J Walsh Respondent: CRR Hoeban SC, A Black
SOLICITORS:	Appellant: Dunhill Madden Butler Respondent: Stacks - The Law Firm
CATCHWORDS:	DAMAGES - Award of general damages - Whether excessive; DAMAGES - Award of damages for past economic loss - Whether trial judge erred in acceptance of adjusted company figures calculated by respondent’s expert accountant - Whether trial judge erred in allowing income split between husband and wife for tax purposes to be adjusted to reflect the respondents true earning capacity - Whether income generated by respondent was "under his control"
DECISION:	Appeal allowed (in part)

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40665/98
DC 6923/95
MASON P
POWELL JA
BEAZLEY JA


Thursday 25 November 1999

Michael CONLEY as Executor of Estate of Robert GOATLEY
v Stephen MINAHAN

The respondent (Minahan) was injured in a collision that occurred on 24 September 1992 on the Hawkesbury River between a high-powered speedboat named “Gatecrasher IV” and another boat. The respondent was a passenger in Gatecrasher IV which was being driven by Mr Goatley. Mr Goatley died as a result of his injuries. The appellant is his executor. The deceased’s negligence was admitted.

The respondent was a marine mechanic and combined his interest in power boat racing with his business. In 1987 his business was taken over by a company called Bryowl Pty Limited (“Bryowl”) in which the respondent and his wife were the equal shareholders and the directors. The respondent and his wife were using Bryowl as the vehicle for the receipt and distribution of business-generated income at the time of the accident; half of that income was being paid to Mrs Minahan as salary, although her efforts were not generating that proportion of company profits. Mr Minahan was testing a speed boat he was building for his client Mr Goatley when the accident occurred. As a result of the post-traumatic stress disorder suffered by the respondent, his business faltered and he was effectively forced to sell it. Each side tendered expert evidence from an accountant who sought to estimate the income foregone due to the (forced) sale of the business.

Judge Ainslie-Wallace awarded damages of $134,304.84. This included $45,000 for general damages and $84,000 for past economic loss. The appellant challenged the award of damages for economic loss on two grounds. Firstly, it was submitted that the trial judge had erred in accepting the respondent’s accounting expert Mr Soutar and treating his adjustment of the company figures for 1992-1993 as the base. Secondly, it was submitted that he had erred in treating money paid by Bryowl Pty Ltd to Mrs Minahan as salary, and treated as such in tax returns, as capable of being adjusted to reflect the true level of the respondent’s loss of earning capacity.

HELD by Mason P (Powell JA and Beazley JA concurring), allowing the appeal in part:

As to the challenge to the award for general damages, the award of $45,000 cannot be regarded as appealably excessive.
Kavanagh v Akhtar (1998) 45 NSWLR 588 (referred)

As to the use of the adjusted Bryowl figures for 1992-1993 as the basis for the past economic loss calculations, the income of the company in 1992-1993 should not be seen as a true reflection of the value of the personal effort of the respondent and his wife, without further adjustment than that conceded by Mr Soutar. This court is in as good a position as the trial judge to determine damages.
Norris v Blake (No 2) (1997) 41 NSWLR 49, Ahmedi v Ahmedi (1991) 23 NSWLR 288 (referred)

As to the adjustment in relation to Mrs Minahan’s salary, Mr Minahan had effective control of the income generated by him and chose to split it with his wife for income tax purposes. The treatment of income for tax purposes is not to be taken as conclusive of earning capacity. Compensable financial loss is loss of what the respondent would have expected to have had under his control or at his disposal if not for the injury.
Husher v Husher [1999] HCA 47 (applied); Salomon v Salomon & Co [1897] AC 222, Lee v Lee’s Air Farming Ltd [1961] AC 13, Giorginis v Kastrati (1989) 49 SASR 371, Taroporewalla v Berkery [1983] 3 NSWLR 28, Seymour v Gough [1996] 1 Qd R 89, Husher v Husher (21 August 1998, Queensland Court of Appeal, unreported) (referred)

The award of $84,000 and $5040 interest thereon for past economic loss should be substituted by the figures of $60,000 and $3600 respectively.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40665/98
DC 6923/95
MASON P
POWELL JA
BEAZLEY JA

Thursday 25 November 1999

Michael CONLEY as Executor of Estate of Robert GOATLEY
v Stephen MINAHAN



JUDGMENT

1    MASON P: An award of damages for negligence is challenged by the defendant/appellant. 2    The respondent was injured in a collision that occurred on 24 September 1992 on the Hawkesbury River between a high-powered speedboat named “Gatecrasher IV” and another boat. The respondent was a passenger in Gatecrasher IV which was being driven by Mr Goatley. Mr Goatley died as a result of his injuries. The appellant is his executor. The deceased’s negligence was admitted. 3    Judge Ainslie-Wallace awarded damages of $134,304.84. This included $45,000 for general damages and $84,000 for past economic loss.

Challenge to general damages

4    The appellant submits that $45,000 was excessive and that the award should have been in the range of $15,000-$25,000. 5    The respondent suffered fairly minor physical injuries, cuts and bruises, which persisted for a few weeks after the accident. The main bases for the awards of general damages and economic loss were the emotional and psychiatric sequelae of the accident. It was found that the respondent suffered a severe post-traumatic stress disorder which manifested itself in great distress, withdrawal, nightmares in the form of flashbacks of the accident, difficulty in communicating with family, friends and customers, impatience and anger with customers, lack of interest in working and personality change. 6    The consulting psychiatrists whose reports were tendered were generally agreed as to a diagnosis of post-traumatic stress disorder. Some expressed the view that its duration would have been lessened had the respondent persisted with appropriate counselling. The doctors were agreed that the condition had substantially resolved itself at least by early 1998, perhaps about three months earlier. 7    Evidence about the impact of the accident came from the respondent and from his estranged wife Ann Minahan. The learned trial judge obviously accepted their evidence, as she was clearly entitled to do, especially in the light of the medical reports. The judge held that the effects of the stress disorder were profound, not the least of which was that the respondent ceased the business which he loved. 8    Her Honour also found that the estrangement and separation between the respondent and his wife was not unconnected with the respondent’s personality change (cf Kavanagh v Akhtar (1998) 45 NSWLR 588). The appellant challenged this finding, relying on evidence from Mrs Minahan and Dr Dyball to the effect that marriage difficulties experienced in the early years after the accident had settled down by 1996 (BAB 87, 89, 160). However, the evidence of the respondent’s wife (BAB 69-71, 73), which the trial judge was entitled to accept, shows the extreme pressure placed upon the relationship by the respondent’s depression. The mere fact that the marriage effectively ended after the time when the respondent had achieved practically full recovery does not make the finding of causal link unsustainable. In any event, I would leave the award undisturbed even if the loss of a fragile marriage relationship is excluded. 9 The medical evidence of Drs Phillips (BAB) 187, Dent (BAB 198, 210), Maguire (BAB 159) and Dyball (BAB 162) attest to the symptoms being significantly present for at least four years after the accident, and to the substantial although not complete recovery by 1998. None of the doctors was called for cross-examination. When the medical evidence is added to the findings of the symptoms of the stress disorder the award of $45,000 general damages cannot be regarded as appealably excessive.

Past economic loss

10    The findings that underpinned the award of general damages explain why the respondent’s capacity to attend to his business affairs was significantly interrupted by the accident. The critical issue is the extent to which the respondent’s injuries were productive of financial loss (cf Graham v Baker (1961) 106 CLR 340 at 347). 11 The respondent was a marine mechanic. In 1986 he started a business at Narellan known as Macarthur Marine (“the business”). In 1987 the business was taken over by a company called Bryowl Pty Limited (“Bryowl”) in which the respondent and his wife were the equal shareholders and the directors. The business was a marine repair and service shop specialising in marine engines, including high-powered outboard and stern drive engines. The respondent had been involved in the boat racing sport for several years. In 1989 the business moved to shopfront premises and became a marine outboard motor outlet. 12 The primary judge accepted the evidence of the respondent and his wife that the respondent had been able to merge his passion for power boats with his business. As a participant in the sport, he became known as a high performance engine mechanic and this attracted custom including that of the deceased. Mr Goatley was a client who, in about May 1992, engaged the respondent to build and prepare a Bullet brand boat for racing. The boat was delivered from the mould in late July 1992 and thereafter the respondent spent a very considerable amount of time working on it, estimated at between 250 and 300 hours in the period April - September 1992. This was the boat that was being tested by the two men when the accident occurred on 24 September 1992. 13 There was additional income from the sale of engines and engine parts and work on other marine engines. 14 The depression suffered by the respondent in consequence of the accident affected his ability to relate with his customers. He also found it intolerable to continue racing boats. Everywhere he looked, there were reminders of the accident. His lack of interest in working was attested to by his former wife and accepted by the primary Judge. 15 In November 1992 the respondent was approached by a customer who agreed to purchase the business. The sale was finalised in March 1993. The sale agreement was not tendered and the evidence is vague as to its details. It would appear that the purchase price was approximately $70,000 made up of $20,000 for goodwill, $23,000 for stock and the balance for plant and equipment. 16 Mr and Mrs Minahan had a four week trip to the United States after finalising the sale. Thereafter, the respondent was somewhat unmotivated so far as work was concerned. He was on social security, although he did some work as a flooring contractor in late 1993-1994. 17 In May 1994 the couple moved to the Sunshine Coast in Queensland. The respondent there commenced a new business repairing outboard motors. The new business was conducted under the name of Sun Coast Outboard. It went well, and in February 1995 it was taken over by Caloundra Marine. That organisation at first employed the respondent and then offered him what was described in evidence as a partnership in which he was in charge of the service section. The respondent was working there at the date of trial (August 1998). 18 The respondent’s claim for past economic loss was that his original business at Narellan had faltered as a result of the post-traumatic stress disorder, and that he had been effectively forced to sell it. 19 The task facing her Honour in assessing damages for past economic loss was complex. The period was closed (24 September 1992-early 1998). But the respondent and his wife were using Bryowl Pty Ltd as the vehicle for receipt and distribution of business-generated income at the time of the accident; half of that income was being paid to Mrs Minahan as salary, although her efforts were not generating that proportion of company profits; and the business was sold in March 1993. These and other factors made it difficult to determine the financial impact of the accident even for 1992-1993. The family’s move to Queensland and the new work commenced there added their own difficulties. 20 Each side tendered expert evidence from an accountant who sought to estimate the income foregone due to the (forced) sale of the business. The two experts started from the figures shown in the Bryowl Pty Ltd accounts. They disagreed as to the interpretation of the raw data and as to various adjustments. The respondent’s expert Mr Soutar worked from the 1992-93 figures and arrived at a net loss of $120,000. The appellant’s expert Mr Penklis averaged the business figures for the years ending June 1991, 1992 and 1993 in the course of arriving at a net loss of $58,889. 21 The issues debated between the experts in their reports and their oral evidence included:

• whether fiscal 1993 should be treated as the baseline (respondent’s expert, Mr Soutar) or whether fiscal 1990, 1991 and 1992 should be averaged (appellant’s expert, Mr Penklis).

• whether Mr Goatley’s patronage in 1992-1993 was extraordinary, and whether its impact on the profits of the business would have been likely to continue or be replicated;

• inferences to be drawn from lower stock levels for the financial year ended June 1992;

• the impact of a fire in the shop in February 1992 and the proper treatment of an insurance payout of $72,000 ($52,000 of which was paid in 1991-1992 and $20,000 of which was paid in 1992-1993);

• the treatment of wages of $17,600 paid to the respondent’s wife by the company in 1992-1993.

22    The primary Judge rejected the extreme claims of either side. She was not prepared to accept the respondent’s claim that he would have continued always servicing the elite end of the market (as had occurred with Mr Goatley), although she accepted that he would have done this from time to time. Her Honour also rejected the appellant’s claim that Mr Goatley’s custom was a one-off event not to be repeated. 23    The appellant challenges the award of damages for economic loss on two grounds. It is submitted that the trial judge erred:

(i) in accepting Mr Soutar and treating his adjustment of the company figures for 1992-1993 as the base;

(ii) in treating money paid by Bryowl Pty Ltd to Mrs Minahan as salary, and treated as such in tax returns, as capable of being adjusted to reflect the true level of the respondent’s loss of earning capacity.

(i) Use of adjusted Bryowl figures for 1992-1993 as basis for economic loss calculations

24    Ultimately her Honour accepted the figure $120,000 suggested by Mr Soutar, subject to a discount of 30%. Interest of $5040 was added to the resultant figure of $84,000 to produce the component with respect to economic loss. 25    The appellant submits that fiscal 1993 was abnormal for a number of reasons including the continuing impact of the February 1992 fire, insurance recoveries relating to the fire, low stock levels recorded as at 30 June 1992, the decision to sell the business made at Christmas 1992 and the transfer of the business to the new owner in March 1993. 26    The appellant relies upon Mr Soutar’s acknowledgment that there were a number of abnormal events during the 1992 calendar year, including the fire, the insurance recoveries, an increase in the wages bill and lower stock levels (BAB 104). Mr Soutar also agreed that his normal practice was to use a number of years to average the calculation of business loss “unless there’s been a change, major change in the business” (BAB 105). However, he considered that there were sufficient signs of such a change to merit departure from his normal method. He instanced the “new direction for the business” represented by Mr Goatley’s custom (BAB 104). 27    There is no objection in principle to the approach adopted by Mr Soutar in his report (BAB 211ff), which was accepted by Ainslie-Wallace DCJ. Nevertheless, the detailed calculations used as the foundation for assessing the respondent’s income-earning capacity in 1992-1993 are susceptible to challenge. This aspect of the case does not turn upon a credibility assessment touching the evidence of the respective experts (cf Ahmedi v Ahmedi (1991) 23 NSWLR 288, Norris v Blake(No 2) (1997) 41 NSWLR 49 at 73-4). 28 In calculating what he termed “adjusted income for 1993” (BAB 217) and “net adjusted income foregone” (BAB 218), Mr Soutar had regard to an item called “recoveries”. For fiscal 1992 “recoveries” produced $52,540. For fiscal 1993 “recoveries” produced $20,130. In his oral evidence, Mr Soutar explained that these sums, which totalled $72,670, represented the proceeds of claims upon insurance policies for loss of stock and loss of profits following the fire in February 1992 (BAB 92). The respondent also accepted in cross-examination that nothing occurred in the 1992-1993 tax year that would have led to an insurance payout or a recovery (BAB 44-45). It can therefore be seen that the $20,130 “recovery” brought to account in 1992-93 should not have been treated as income of the business in that period. 29 In any event, Bryowl’s financial records in relation to stock were virtually non-existent. The respondent’s own evidence suggested that the value of the plant, equipment and stock lost or damaged in the fire was only of the order of $5,000-$7,000 (BAB 31) and that this included damage to customers’ boats as well as the respondent’s own boat (BAB 32, 44). These circumstances further undermine Mr Soutar’s decision to treat the entirety of “recoveries” as a true reflection of the business interrupted by the February 1992 fire. 30 Other adjustments should have been made. There were shareholder loan accounts. This suggests the probability that the purchase of stock for sale was funded by capital lent to the company, with the consequence that any resultant profit was the product (at least in part) of that capital. In addition, nothing appears to have been allowed by Mr Soutar with respect to the income tax that would have been payable had the respondent chosen in 1991-93 to receive the product of his personal exertions in the form of direct payment to himself. 31 When Caloundra Marine bought the business of Sun Coast Marine in February 1995 it engaged the respondent as a manager at a salary of about $35,000 per year (BAB 87-88). This figure was significantly below the adjusted base figure derived by Mr Soutar based upon the 1992-1993 trading history of Bryowl. 32 For all of these reasons, the income of the company in 1992-1993 should not be seen as a true reflection of the value of the personal effort of the respondent and his wife, without further adjustment than that conceded by Mr Soutar. The need for such further adjustment is reinforced by observing the outcome of the three year approach suggested by the appellant’s expert. 33 What then should be done? The parties should be spared the cost of a new trial, particularly when it is clear that little new light could be cast upon the critical issue. The question is whether the 30% adjustment to the Soutar figures adopted by the trial judge was a sufficient corrective. An appellate court should be hesitant to interfere with a trial judge’s determination in a complex exercise like this, essentially since it involves a broad exercise of judgment in a complex issue. Nevertheless, I have reached the view that this Court is in as good a position as the trial judge (cf Norris v Blake (No 2) (1997) 41 NSWLR 49 at 73-74) and that the matters to which I have referred call for a more significant discounting of Mr Soutar’s net figure. I would discount it by 50%, with a consequential adjustment of interest. The economic loss component (including interest) which totalled $89,040 on the basis of $120,000 less 30% plus interest should be adjusted to $63,600.

(ii) Adjustment in relation to Mrs Minahan salary

34    In 1992/1993 Bryowl effectively distributed its net profits as salary, paying the respondent a salary of approx $20,000 and Mrs Minahan a salary of approx $18,000. The respondent submitted at trial that this division did not reflect his income-earning capacity, insofar as the vast proportion of the work done in the business was done by him and not his wife. There was evidence which her Honour accepted that the salary distribution arranged by the directors was brought about for income tax reasons on the advice of their accountant. 35    Her Honour found that the wages earned by the respondent from Bryowl did not represent his earning capacity for that period. She notionally added back into Bryowl’s accounts the income allocated to Mrs Minahan, subject to an adjustment of $5,000. This was a sum that both expert accountants agreed would be the wage that the company would have had to have paid an outside employee to perform the tasks actually performed by Mrs Minahan during 1992-1993. When this and other agreed adjustments were made, her Honour arrived at the net loss figure of $120,000 which, as already indicated, was discounted by roughly 30% to arrive at the net loss of $84,000. 36    I do not understand the appellant to dispute the factual basis of this reasoning. In my view it is amply supported by the following:

• In 1992-1993 the sole source of income earned by Bryowl came from the business. That business was carried on until March 1993 when it was sold for approximately $70,000.

• The evidence of Mr and Mrs Minahan was consistent as to the time spent by each of them in the affairs of the business.

• The respondent spent between 50 and 60 hours per week working (BAB 24). Mrs Minahan described this as working six days per week (BAB 66). I shall assume that this represented an average for the whole period in which the business was owned by the company during that fiscal year. It will be recalled that the respondent’s efforts during this period included the 250-300 hours he spent between April and September 1992 working on Mr Goatley’s boat (BAB 8, 55).

• During 1992-1993 Mrs Minahan was primarily involved in home duties, particularly the care of the couple’s young child who was born on 15 November 1991. Mr and Mrs Minahan each estimated her time spent working in the business to be an average two days per month (BAB 34, 51, 67-8). Her work consisted of writing the cheques to pay creditors’ accounts (BAB 6, 67), doing the banking (BAB 67) and relieving the respondent in the shop “fairly irregularly” (BAB 6). Mrs Minahan did not do the book keeping, a task attended to principally by the company’s accountant (BAB 30-31, 45-6, 51). She would look after the shop if the respondent had to attend a dealer’s trade day or if he was away testing Mr Goatley’s boat, an activity estimated by the respondent as involving him being away from the shop for between seven and ten days (BAB 6-7, 51, 68, 79). (The evidence is a little unclear, but I infer that the common estimate of an average of two days per month took into account for this extraordinary commitment in the period between July and September 1992. Mrs Minahan’s estimate was that she ran the retail aspect of the business once every three or four weeks on average (BAB 79).)

37    It would appear that salaries depended upon available income. It is equally clear that the decision to apportion salary income almost equally between husband and wife was done as an income-splitting exercise, for tax purposes, in accordance with the advice of the company accountant (BAB 33, 52). 38    The appellant submitted that the respondent’s loss of earning capacity should have been restricted to wages received from Bryowl as disclosed in the respondent’s and the company’s tax returns. According to the appellant, this is the natural and inevitable consequence of the principle that the owner/controller of shares in a corporation and the corporation itself are separate legal entities (Salomon v Salomon & Co [1897] AC 222) and the derived principle that the governing director and sole controlling shareholder of a corporation may be the employee of that corporation (Lee v Lee’s Air Farming Ltd [1961] AC 13). It was submitted that, because the respondent and his wife established Bryowl as a separate legal entity, the respondent cannot be permitted to take the benefit of such an arrangement without bearing its burden. The income tax returns should have been taken at face value (cf Giorginis v Kastrati (1989) 49 SASR 371). 39 As the respondent pointed out, the appellant’s submissions sat most uneasily with cases such as Taroporewalla v Berkery [1983] 3 NSWLR 28. There are several other decisions to broadly similar effect (see generally Luntz, Assessment of Damages 3rd ed par [5.5.1]-[5.5.13]). Some Queensland decisions (not cited to us) pointed in the opposite direction (see Seymour v Gough [1996] 1 Qd R 89, Husher v Husher (21 August 1998, Queensland Court of Appeal, unreported). 40    Recently, in Husher v Husher [1999] HCA 47, the High Court has overruled the Queensland cases and explained authoritatively the basis upon which damages for loss of earning capacity in cases such as the present are to be calculated. The leading judgment is that of Gleeson CJ, Gummow, Kirby and Hayne JJ. Callinan J delivered a separate judgment, but I do not understand his reasons to differ in point of substance from those in the joint judgment. Husher reiterates the basal principle that damages for both past loss and future loss are allowed to an injured plaintiff “because the diminution of his earning capacity is or may be productive of financial loss” (citing Graham v Baker (1961) 106 CLR 340 at 347). Gleeson CJ, Gummow, Kirby and Hayne JJ said (at [18]):

The financial loss occasioned by impairment of earning capacity is the loss of what (if there had been no accident) the injured plaintiff would (as opposed to could) have expected to have had under his or her control and at his or her disposal by exercising that capacity. We refer to “control” and “disposal” because what the plaintiff has lost are the financial rewards from work that are rewards the plaintiff would have been able to direct to whatever purpose or destination he or she chose.


The tax treatment is not conclusive.

41    This principle was applied to the facts of Husher, which involved a 50/50 partnership at will between a husband and wife. The husband (who was the injured plaintiff) generated the partnership income through his skill and labour. The wife’s limited contribution to the business was to perform minor bookkeeping and message-taking tasks. The income was split, obviously for tax-saving purposes. It was recognised that the arrangement would very probably have been maintained indefinitely. The tax arrangements between the plaintiff and his wife meant that the plaintiff did not derive the whole of the partnership income. Nevertheless, his capacity to terminate the partnership at will, and to bring to an end, or vary, the arrangements made with his wife concerning the manner in which income generated by his activities was derived, resulted in an effective control which was of critical significance in measuring his earning capacity and his financial loss. 42    The Court emphasised that the facts of each case require close attention:

The task is not one to be undertaken by seeking to classify cases as concerning ‘sole traders’ or ‘partnerships’ or ‘wage-earners’ or ‘trading trusts’, and then attempting to deduce some rule of general application to all cases falling with the classification thus devised. Rather, the enquiry is about what could the plaintiff have done in the workforce but for the accident and what sum of money would the plaintiff have had at his or her disposal. (joint judgment at [23]).

43    This passage shows that the principles enunciated in Husher are capable of application to business structures other than partnerships (see also Callinan J at [54]). Seymour v Gough, which the High Court overruled, involved a family company. 44    The task in the present case facing the trial judge was to determine the extent to which the injury suffered by the respondent had been productive of financial loss to him. The findings established that the respondent was, in the sense discussed in Husher, in effective control of the income generated by him and channelled, by his choice, through Bryowl. The drawings by husband and wife of sums designated as salaries did not indicate to the contrary. Nor did the company structure represent any long term impediment to the respondent diverting elsewhere the fruits of his labour, had he chosen to do so. The only relevant point of distinction between the present case and Husher was that Mrs Minahan’s contribution by way of labour was more significant than that of Mrs Husher. This however was reflected in the allowance made on that account in the present case (see par 36 above).

Disposition

45 Accordingly the appeal should be allowed in part. In lieu of $84,000 for past economic loss and $5,040 as interest thereon, I would substitute $60,000 and $3,600 respectively. This produces an amended verdict of $108,864.84, which should take effect from 26 August 1998. The respondent should pay the appellant’s costs but have a certificate under the Suitors’ Fund Act. 46 POWELL JA: I agree with Mason P. 47 BEAZLEY JA: I agree with Mason P.

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