Conservation Council of SA Inc & Ors v Chapman & Anor

[2004] HCATrans 297

[2004] HCATrans 297

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A1 of 2004

B e t w e e n -

CONSERVATION COUNCIL OF SA INC, MARGARET BOLSTER and RICHARD OWEN

Applicants

and

THOMAS LINCOLN CHAPMAN and WENDY JENNIFER CHAPMAN

Respondents

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 12 AUGUST 2004, AT 9.32 AM

Copyright in the High Court of Australia

MR P.A. HEYWOOD-SMITH, QC:   If the Court please, I appear with MR P.D. HANNON for the applicants.  (instructed by Duncan Basheer Hannon)

MR B.W. WALKER, SC:   May it please your Honours, I appear with my learned friend, MR T.P. DUGGAN, for the respondents.  (instructed by Lynch Meyer)

HAYNE J:   Yes, Mr Heywood-Smith.

MR HEYWOOD-SMITH:   If the Court pleases.  It will come as no surprise for the Court to know that the applicant regards the first point as being the substantial point in this matter.  I propose to concentrate on that.  I also propose to spend a little time dealing with the facts in the context against which this particular publication was published.

This Court will be well aware of the Hindmarsh Island Bridge controversy.  This litigation commenced as 18 publications.  By trial it was reduced to 11.  That is significant in that it indicates what was a period of fairly sustained public debate between the protagonists.  On the one side the respondents and their development company Binalong, and on the other side, as one of the prominent anti-bridge campaigners, the Conservation Council and its members.

HAYNE J:   Now, as to this first ground, if we go to your proposed notice of appeal page 260.  If you were to succeed in making good ground (a) but no other ground, to what order would you be entitled?

MR HEYWOOD-SMITH:   Well, the order that we would be entitled would be that the judgment would be set aside ‑ ‑ ‑

HAYNE J:   Why?

MR HEYWOOD-SMITH:   The issue of reasonableness, if the Court pleases, is one that is slightly unsatisfactory in that whilst his Honour Justice Williams at first instance found that the publication was unreasonable, he appears to have done so on the basis of the same matters that he relied upon in establishing malice.

HAYNE J:   The point I need you to grapple with is assume this first point you raise otherwise was a matter of importance, would the Court ever get to it?  That is, do you not have to make good a number of other contentions before getting an order in your favour in this Court?

MR HEYWOOD-SMITH:   In our submission, no.  The only ‑ ‑ ‑

HAYNE J:   Have you not got to establish reasonableness?  Do you have to – or must there be consideration?  Let us leave aside who proves what.  Must there not be consideration of reasonableness?  Is that bound up with the issue of fair comment?  That is, can it be reasonable to do something that is not a fair comment.  That is, in the end is the application for leave one which seeks to challenge the reasoning rather than the orders?

MR HEYWOOD-SMITH:   If the Court pleases, in our submission, the extended qualified privilege defence stands on its own separate from the defence of fair comment.  So far as reasonableness is concerned, the position is this.  It is quite unlike the position in Popovic where all members of the Supreme Court had expressed firm views about reasonableness.  Here the position was that Justice Williams at first instance said that the matter was unreasonable, but there was a bare assertion, unsupported by any reasons, and apparently relying solely upon the matters relating to malice.

The Full Court set aside his Honour’s findings relating to malice.  Justice Gray found that the publication was reasonable, and he gives details as to why he does that.  Justice Besanko, with whom the Chief Justice agreed, says that he does not deal with reasonableness, having found that this was not a government and political matter.  However, his Honour gives, we suggest, a fairly clear indication as to what approach he would have taken had he had to deal with reasonableness when he deals with Publication 11.

Now, Publication 11 was a similar publication in which his Honour found that this was on a government and political matter.  He deals with reasonableness at application book page 248 from paragraphs 361 to 364.  Significantly, his Honour notes – I take the Court to paragraph 364 – that this was a case where, at line 38:

the respondents were making ample use of the media to put their point of view.

His Honour held that in the circumstances there was no obligation upon the applicants to seek any response from the respondent before publishing and his Honour finds that the publication level was reasonable.  Now, Justice Gray, at page 189 of the application book ‑ ‑ ‑

HAYNE J:   Now, all of that is about another publication.

MR HEYWOOD-SMITH:   It is about another publication but, as I have told your Honour, the majority do not deal with reasonableness in their judgment at all.  Justice Gray at page 189 of the application book in paragraphs 148 and 149 addresses the issue of reasonableness and makes a clear finding that the publication is reasonable.  I take the Court in particular to paragraph 149 at the top of page 190, the fifth line:

This was a dispute between those supporting conservation and the advocates for development.  The plaintiffs were well prepared to respond and did so generally in the media.  The plaintiffs were well used to arranging for publication of their position.  There was no need for the defendants in the circumstances to provide an opportunity for response.

And his Honour goes on at paragraph 151:

The comment was not unreasonable.

Now, in these circumstances the applicant, should leave be granted, would be obliged, no doubt, to refer the Court to certain of the evidence in order to satisfy the Court that his Honour Justice Gray’s finding was the appropriate finding, but at this stage there is no adverse finding on unreasonableness that we say we face.

HAYNE J:   Well, is there any upsetting by the Full Court of the findings of fact which would be necessary to consider in connection with what is said in Lange at page 574 in the paragraph commencing last on that page?

MR HEYWOOD-SMITH:   There is none, in our submission, your Honour.  All that Justice Williams says on this issue appears at application book 90, paragraph 314.  That is the only finding his Honour makes:

The conduct of the defendants is not reasonable.  The authors of the article were motivated by malice –

There seems to be a suggestion that his Honour is combining the two.  If the Court goes to application book page 1, paragraph 4, this is in a sense confirmed when his Honour in summary says that:

The defences of fair comment and qualified privilege fail with respect to the defamatory publications.  The dominant motive of each defendant was to damage –

In other words, his Honour was relying specifically on the malice to defeat the privilege.  The Full Court set aside his Honour’s findings on malice, leaving, we say, nothing left upon which his Honour has based any finding of unreasonableness.  So that, in our submission, the Full Court having set aside those malice findings ‑ ‑ ‑

HAYNE J:   And where do they do that?

MR HEYWOOD-SMITH:   Well, it appears in numerous places throughout the Full Court’s judgment.  One example is paragraph 340 on page 244, dealing with Publication 7.  Line 9:

the finding of malice against Mr Owen cannot stand.

He deals with the finding of malice against Ms Bolster in the context of Publication 11.  Ms Bolster and Mr Owen were the two authors of Publication 7.  In Publication 11, paragraph 363 on page 249 is where it commences and it finishes at 367 and at page 251, line 11, the last sentence in the paragraph:

The appellants made out the extended defence in relation to Publication No 11.

The sentence preceding that:

the respondents failed to establish malice in relation to Publication No 11.

So, in our submission, the applicant here does not have the same problems that were faced by the applicant in the Popovic matter. 

Can I return then briefly to the context.  Can I ask the Court to go to page 122 of the application book.  This is a schedule of background facts which was an agreed schedule of facts.  At page 123 the significant facts for this Court commence on 3 August 1993 when we have a public forum by Friends of Goolwa and Kumarangk and the Conservation Council on the Hindmarsh Island Bridge.  In October 1993 there was a further public meeting.  The bridge commences to be built in October.  At this stage all of the events are associated with the State Government.

Over the page at page 124, 9 March we have the Conservation Council putting out media releases that were other publications that were sued upon.  Again, later in March, 24 March a rally on the steps of Parliament House.  On 29 March Binalong seeks an application in the Federal Court injuncting the Conservation Council and others against certain conduct.  That was an interim injunction granted.  On 19 April it came back before Justice Heerey and the injunctions were extended against the Friends of Goolwa and Kumarangk, which included members of the Conservation Council.

Then on 22 and 27 April, within a week of the injunction being obtained, the respondents send letters to people in Friends of Goolwa and Kumarangk, which letters are reproduced by Justice Gray in his judgment at application book 179 and 180.  The Court will see in paragraph 108 and paragraph 109 two letters sent to members of the Conversation Council, in essence, threatening or warning that should they continue to oppose the bridge’s construction, including via speech, they may make themselves liable to huge damages awards.

Coming back to page 125.  In May bridge work recommences.  On 12 May the federal Minister becomes involved – Mr Tickner issues his first declaration and appoints Professor Saunders to prepare a report.  The Conversation Council publishes Publication 5 in May and June.  On 9 July the federal Minister makes a declaration under the Heritage Act.  On 22 July the Chapmans commence judicial review proceedings in respect of that declaration.

Then at the end of November – it is not shown there – the injunction is lifted by Justice O’Loughlin, and that gives rise to the publication that is before the Court, Publication No 7 which appears at application book 271, and if the Court would go to that publication.  We are only concerned with the first half of the publication, but it is seen that the article is in respect of the lifting of the injunctions.  Line 5:

Injunctions that sealed the lips of community concern for the past seven months have been lifted . . . 

The lawyers for Binalong P/L sought a stay . . . 

Justice O’Loughlin refused Binalong’s application . . . and ordered that Binalong’s lawyers proceed . . . 

injunctions have remained since April with no action being taken –

These were all facts relied upon – uncontentious facts, not contested at trial.  Line 24:

The people of Goolwa have been intimidated by this action and have been prevented from speaking freely –

Then we have the sentence which is said to give rise to the imputation that is defamatory.  Now, what the applicants say is that when the Full Court came to consider this publication in the context of the question of whether it addressed government and political matters, it took too narrow a view of what is government or political.  What Justice Gray drew attention to at page 170 of the application book was these facts.  Paragraph 77:

What commenced as a proposal for a commercial development on private property was catapulted into the public domain.  Issues of public involvement and public financing became important aspects of the project.  Mr and Mrs Chapman took on a role as protagonists for the bridge.  They became embroiled in the public controversy.  They prepared environmental impact statements.  They published extensively to the public through the media.

He goes on to analyse the media statements put out by the Chapmans.  Line 14:

Many of the publications or statements by the Chapmans were in the print media including the Advertiser, the Australian, the News . . . 

The Conversation Council and the other defendants became involved as opponents to the development.  The issues raised by the proposed development were of governmental and political concern.

And over the page, paragraph 83:

During at least the period of June and July 1994 Mr and Mrs Chapman were publishing statements about the Hindmarsh Island projects . . . 

Publications 1 to 11 and in particular publications 6, 7 and 11 were said by the defendants to raise matters of concern –

Now, the matter that we ask this Court to take account of is that the background to this matter is clearly government and political.  The federal Minister is involved in a dispute between sections of the community.  The tactics of one of the protagonists includes the obtaining of an injunction which had the effect of, at least in part, silencing their opponents.  Any publication, we say, going to those tactics is itself ‑ ‑ ‑

HAYNE J:   What, the tactics of resorting to law?

MR HEYWOOD-SMITH:   The tactics of resorting to law.

HAYNE J:   So that the commencement and institution of legal proceedings is a political matter?  A very large proposition.

MR HEYWOOD-SMITH:   Not in that bald expression.

HAYNE J:   How would you dress it up?

MR HEYWOOD-SMITH:   What we say is that here we have the injunctions with the letters, we have the fact of people in Goolwa being silenced.  It is open for people wishing to express publicly their views on ‑ ‑ ‑

HAYNE J:   About what?

MR HEYWOOD-SMITH:   ‑ ‑ ‑ that state of affairs, that people are being inhibited in speaking on what is clearly a government and political matter is itself government and political.

HAYNE J:   Yes, thank you, Mr Heywood-Smith.  Yes, Mr Walker.

MR WALKER:   May it please your Honours.  Your Honours, the point upon which my learned friend has devoted his time is, in our submission, the only one which even superficially could give rise to considering special leave but for the following reasons your Honours should not do so.

The first is that the case does not present as one to which anything approaching finality could be brought, even in the controversy between these parties, by this Court taking on the appeal.  That goes to the way in which matters of malice and reasonableness were dealt with respectively at trial and in the intermediate appeal.

The second reason is that even if, by a method not proposed in my learned friend’s written or spoken argument for special leave, that difficulty could be overcome, it can also be seen that this is not a case which raises, for consideration by this Court, the question of the ambit or parameters of government and political matters, which must be what they are raising in this first point.

HAYNE J:   Well, why does it not arise?

MR WALKER:   It does not do that because all it raises is the question of how you apply that general expression to the circumstances of a particular publication, and that is true every time Lange is pleaded and argued in any case at all.  That does not make it a special leave matter concerning the ambit of that expression “government or political matters”.  It simply ‑ ‑ ‑

HAYNE J:   But if leave went on ground (a), what would the consequence be?

MR WALKER:   If leave went on ground (a), the first consequence would be that this Court would need to consider, in addressing the only justiciable matter, namely, should the orders made by the Full Court be disturbed, first, whether the conduct of the publishers was reasonable within the meaning of Lange.  It has to be observed that there is no disturbance of the trial judge’s conclusion that it was not reasonable in the Full Court.  That may or may not be an accident of expression in that, at paragraph 340 in Justice Besanko’s reasons, malice, and malice only, is referred to as that which would have been overturned – the conditional would have been overturned – if he had got to that point.

HAYNE J:   But would we be met with a notice of contention?

MR WALKER:   Yes.

HAYNE J:   And what would the notice of contention seek to raise?

MR WALKER:   That the Full Court erred in disturbing the finding of malice made and the finding against reasonableness – two separate but related findings – made by Justice Williams.  That would be an essential debate in the High Court in order to ascertain whether there ought to be a change in the decision of the Full Court.

Now, what the majority decided in the Full Court was that malice – and assume against my argument that the concept of reasonableness is subsumed in malice, though that would not be a fair or accurate depiction of what this Court suggested in Lange, but assume that for the moment – on the question of malice there would have been, had it been necessary, a remitter, a retrial; a retrial of issues which, certainly with Mr Owen’s position, as your Honours know from the record, involves a considerable survey of what my learned friend has, with respect, correctly described as a protracted matter, protracted controversy, in which Mr Owen was very active.  So that the retrial in question is one that cannot possibly be seen as one which could be determined in this Court, as it were, on the papers.  That is the first thing.

The second thing is it is a retrial of an issue upon which Justice Besanko, who provided the reasons for the remitter – the retrial agreed in by the Chief Justice – described as being a substantial case for Mr Owen to answer.  So that what this Court would be doing were it to take on the question of whether Publication No 7 – it has nothing to do with Publication 11 – was or was not concerning government and political matters affecting the people of Australia, it would be doing so knowing that that could well be a moot and academic matter unless the High Court were to find for itself, on the record before the High Court, with the strictures upon this Court’s appellate jurisdiction, that the conduct had been reasonable and was not actuated by malice in the relevant sense.

That being, in our submission, an unthinkable proposition in the High Court – indeed, the applicants do not argue it – the Court would then be taking upon the task of giving judicial advice as to whether or not the matters connected with Publication No 7 rendered it a publication concerning government and political matters that affect the people of Australia, without being able to know, let alone determine, that that would affect one whit the result between these parties and the justiciable controversy brought to the courts.  In our submission, that renders the case an entirely unsuitable vehicle for considering such an important matter.

We say it is an important matter because there ought not to be attempts at redefining in general terms what “government and political matters affecting the people of Australia” might mean, except on a solid foundation of found facts upon which this Court can proceed confident in the knowledge that this is not a moot or abstract question which is being debated, but one which will provide as authority, one way or the other, a clear indication of the actual facts upon which one could then consider the whole defence.

It is critical, in our submission, to note that the whole defence is not made out by ground (a) proposed in the draft notice of appeal at page 260 of the application book.  They do not get home.  They do not make their defence out by winning that ground.  They merely establish, as it were, that the general rule might be available to them, depending upon the conduct upon which they bear the onus of persuasion.

In our submission, that means that the point, the one and only point, which, as I say, superficially might appear to justify a grant of special leave to this Court is one which is bedevilled by the incapacity of the actual facts and the way in which the litigation has been conducted and would produce a mere abstract or advisory outcome.  In particular, we stress, it could not produce a setting aside of the Court of Appeal orders except so as to add to them, at most, a remitter order.  That would be the only thing that this Court would do.  A remitter to find out whether the point argued in the High Court mattered.  In our submission, that is not the mark of a special leave case.

In any event, can I then move to the question as to why this case would not provide, even if that difficulty did not arise, an appropriate vehicle to examine or re-examine what government and political matters affecting the people of Australia might have as its outside limits.

This is not a case about the conduct of an arm of government.  This publication does not concern an arm of government in its conduct.  We can say that confidently – unlike perhaps Popovic – because the federal Minister has nothing whatever to do with the private litigation which was the source of the rebuke delivered to my clients.  The arm of government, which is the judiciary, which granted the interlocutory injunction and which eventually lifted it, is not the subject of any discussion or criticism at all in the rebuke administered to my clients.  It is treated almost as an impersonal cipher, the impropriety coming in the way in which my clients oppressively were said to have used it, thus the sting.

So that it does not raise any of the matters which might be thought to have been observed in Popovic, perhaps in a suitable case one day to arise.  This is not that case.  It will not raise anything about the extent to which the doings of the judicial arm of government ought to be borne in mind in relation to what Chief Justice Spigelman identified as the representative government rationale of this Court’s decision in Lange.  Thus, for example, this case does not present any opportunity to examine the degree to which the non‑coextensiveness of the constitutional rationale and the common law extension in Lange may or may not provide guidance in individual cases.  This case is much less suitable, for example, than Popovic would be to determine that.

Finally, of course, it is to be observed that this is not an opportunity for this Court to quell differences of opinion or approach on this undoubtedly important matter of common law defence between coordinate authorities in this country.  This is not a case where the apical common law position of this Court needs to be engaged.  There is concord between Fairfax in New South Wales, Popovic in Victoria and Chapman in South Australia.  That concord is not destroyed by pointing to dissents.  There is not difference between intermediate appellate conclusions brought about by the approval one side or other may express in a special leave application for dissenting reasoning.

HAYNE J:   What, if any, connection is there between considerations apt to a defence of fair comment and considerations that may be raised in connection with Lange?  In particular, do questions of fairness overlap, intersect with, stand apart from questions of reasonableness?

MR WALKER:   Page 574 in Lange unquestionably gives rise to considerations which may one day, on particular findings of fact about the conduct of a publisher, force a court to determine the overlap so as to understand the availability of at least one defence for such a publisher.  It is clear from the passage at 574 that malice bears a relation – not entirely congruent – with reasonableness.  That can be seen by comparing the first and third paragraphs on that page, bearing in mind the comments concerning the dicta in Theophanous in the second paragraph.

This case could not possibly enable the Court to thread its way through the overlap or parallel operation of a fair comment defence and a Lange reasonableness defence.  It could not possibly thread its way through because it does not have any findings of fact, apart from those of the trial judge that the majority would overturn, crucially, and the dissenting judge in the Full Court.  That, in our submission, does not provide apt material for the Court to say, “This fact, that finding, that circumstance may inform a question whether the comment was fair but would not affect reasonableness or vice versa.” 

That is particularly so bearing in mind that especially with regard to Mr Owen, as your Honours have seen from all judgments below, there is a pervasive element of credibility and assessment of the witness as a witness at trial, which makes it most unfit as candidate material for this Court to say, “These are the facts upon which we can opine and see the difference between fair comment, on the one hand, where one needs to understand that actuated by malice, in light of Lange, will be looking to a wrong purpose or ulterior purpose enquiry or, on the other hand, reasonableness where matters of opportunity for response and the like may arise.”

HAYNE J:   Now, what do the Full Court do about the fair comment aspect in this publication?

MR WALKER:   In essence, what they did was to decline to characterise the matter at the heart of the defamation as comment.  Now, that, of course, is not a special leave point.  It is not suggested they misdirected themselves and it is ‑ ‑ ‑

HAYNE J:   What consequence follows, if any, in your submission for the application of Lange, or are the two separated?

MR WALKER:   The two are separated.  They are related in the sense that one can and presumably the courts will normally see them both pleaded, but they are separated because characterisation of the statement as comment will not be necessary for the Lange defence to be available.  So that there is a radical separation between the defences; the same kind of evidence is likely to inform, regardless of onus on the particular issues, a consideration at trial of either of those defences – presumably both of those defences.

HAYNE J:   If it is not comment, how is Lange engaged?

MR WALKER:   Lange would be engaged, as we apprehend the argument against us, if it is not comment, apparently it is said that an attribution in fact of a malign or anti‑social motivation on the part of my clients by resorting to law is itself some contribution to what I will call protective debate, immune debate.

HAYNE J:   Well, it is that point which ‑ ‑ ‑

MR WALKER:   That is not thrown up ‑ ‑ ‑

HAYNE J:   ‑ ‑ ‑ represents part of the difficulty.

MR WALKER:   It is certainly not thrown up on what I will call facts available to this Court, were there an appeal, to ascertain the extent to which the apparent attribution in fact – which has been found, by the imputation found – goes over the boundaries of reasonableness at all.  That simply is not raised as an issue in this case.  In our submission, because of the need to have facts before you can ever consider either fairness for comment or reasonableness for Lange, what we have in this case is at this point of a special leave application thoroughgoing vagueness, confusion about the basis of fact upon which it would be said that the availability of a Lange defence would matter. 

It is for those reasons, in our submission, that this case could not provide anything other than another attempt to persuade on matters as to which they have already had two goes by the application of clear principle, there being no conflicting strand of authority requiring to be reconciled and there being, for the reasons I have put, whatever the result be in the High Court, an inability to bring the case to an end, except, of course, by finding that it is not possible, in the absence of facts, for them to have the Lange defence made out.  Now, that is exactly the argument that we are putting now against the grant of special leave.

The question of the material which would be necessary for an appeal, of course, comes back to the issue of a notice of contention.  The notice of contention will require consideration of all the material which goes to, in particular, Mr Owens and the corporation was not the subject of any intermediate appellate ‑ ‑ ‑

HAYNE J:   Well, that is a submission in terrorem, so we are suitably responsive to it, Mr Walker.

MR WALKER:   Your Honour, it is not meant in terrorem.  It is meant to show that it is not possible for the applicants now to show what are the facts on the basis of which the Lange defence would matter, that is all.

HAYNE J:   Yes.

MR WALKER:   There is a great deal of material and all they can say is the judge below has been found to have erred by reason of bare assertion.  Now, the judgment below contains a lot more narrative than simply bare assertion, and that narrative will require consideration of material which has not been analysed by the applicant for special leave.

HAYNE J:   Yes.  Yes, Mr Heywood-Smith.

MR HEYWOOD-SMITH:   If the Court pleases.  We take issue with the final concluding remarks of our learned friend.  The learned trial judge did not deal with the defence of fair comment; it was one of the grounds of appeal.  The Full Court heard argument; Justice Gray found fair comment.  I took the Court in the publication to each of the facts asserted in the publication.  None of them were contentious. 

When the Court has regard to Lange, page 574, the issues are whether “the defendant had reasonable grounds for believing that the imputation was true” – just pausing there.  Both Bolster and Owen asserted in evidence that they honestly believed the expressions that they made in Publication 7 to be true, and they were not cross‑examined on that assertion.  So we have facts uncontentious, assertion of their Honours’ belief not contested at trial.  The only issue, we say, on reasonableness that remains is the issue of response.  Both Justice Gray and Justice Besanko have – admittedly Justice Besanko in respect of another publication – said there was no obligation to seek a response because of the access that the respondents were having to the media.

HAYNE J:   But did the majority in the Full Court conclude that Publication 7 was not comment, relevantly?

MR HEYWOOD-SMITH:   The majority found it was not comment.

HAYNE J:   Would it not then be necessary, if you were to succeed, to understand the intersection between that conclusion and the application of Lange?

MR HEYWOOD-SMITH:   Yes, but we say that there is no necessity to address evidence in respect of it.  It is a question of looking at the document and forming an opinion as to whether or not the particular phrase is comment or fact.  The only other matter that I wish to say is this, that the applicant fought in the Full Court the question of reasonableness on the evidence.  Two of their Honours have simply chosen not to address it; they say nothing about it.  In our submission, it would be open to this Court, if the Court was otherwise with the applicant on the primary issue, to remit that issue back to the Full Court.  If the Court pleases.

HAYNE J:   The Court will adjourn to consider what course it will take.

AT 10.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.20 AM:

HAYNE J:   An appeal to this Court on the principal ground advanced could be determined only upon consideration of a number of related factual issues including but not limited to the question of reasonableness of conduct of the applicants.  Those issues are not suitable to a grant of special leave in this case and the applicants do not proffer them as being so.

Given the findings made at trial and by the majority of the Full Court, we are not persuaded that the interests of justice generally or in the particular case warrant a grant of leave.  Leave is accordingly refused with costs.

AT 10.21 AM THE MATTER WAS CONCLUDED