Creasy v Hot Holdings Pty Ltd

[1995] HCATrans 28

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth          No P37 of 1994

B e t w e e n -

MARK GARETH CREASY

Applicant

and

HOT HOLDINGS PTY LIMITED
and OTHERS

Respondents

TOOHEY J

(In Chambers)

AT PERTH ON MONDAY, 20 FEBRUARY 1995, AT 9.28 AM

Copyright in the High Court of Australia

HIS HONOUR:   Mr Stevenson?

MR C.P. STEVENSON:   If it please, your Honour, I appear on behalf of the applicants who are the second respondents in the proceedings.

HIS HONOUR:   Yes.  Thank you.  Mr Workman?

MR M.P. WORKMAN:   If it please, your Honour, I appear on behalf of the respondent who is the applicant in the proceedings.

HIS HONOUR:   Very well.  Thank you.  Yes, Mr Stevenson?

MR STEVENSON:   Your Honour, this is an application by the second respondents, by summons, to seek an order that they be removed as second respondents to the proceedings.  Very briefly, the proceedings are by way of an application for special leave to appeal to the High Court from a decision of the Full Court of the Supreme Court of this state whereby that court refused to grant an order nisi to the applicant in these proceedings.  Your Honour, can I hand up an outline of submissions.

HIS HONOUR:   Is it a faxed copy?

MR STEVENSON:   Yes, it is, your Honour.  I put it through this morning.

HIS HONOUR:   Well, I am content with that.  Thank you.

MR STEVENSON:   If it please you.

HIS HONOUR:   Mr Stevenson, the order nisi that was refused was an order nisi sought by Mr Workman's client, the applicant, for special leave in proceedings against the present respondents?  I end on that, sort of, questionable note.  Were there others?

MR STEVENSON:   No.  All the parties who participated in the hearing of the order nisis - and there were four - the respondents in these proceedings have been named as respondents in these proceedings.  So in the full court there were four applications for order nisi; one by our clients, two by Mr Workman's clients and one by Hot Holdings which is the first respondent in these proceedings.

HIS HONOUR:   And so far as the Hot Holdings application for special leave is concerned, there has been a consent to have your clients removed, has there?

MR STEVENSON:   There has been a consent and that is exhibited in the affidavit in support.

HIS HONOUR:   Of the remaining three applications for order nisi, there is only one - apart from the Hot Holdings one we have just referred to - that is presently before the High Court?

MR STEVENSON:   That is correct, and that is these proceedings in P37.

HIS HONOUR:   And the other two, what, have just fallen by the way, have they?  And I do not need to know the detail.

MR STEVENSON:   That is correct as I understand it.  In relation to my client's position, they do not seek to take their order nisi any further in this jurisdiction.

HIS HONOUR:   Yes.  Continue, thank you.

MR STEVENSON:   Your Honour, could I take you to page 184 of the application book - page 184 - which contains the order 69A statement filed by the applicant in these proceedings.

HIS HONOUR:   Yes.

MR STEVENSON:   It contains a brief history of the factual circumstances and your Honour will see that what we are concerned with is a number of competing applications for essentially the same ground which were the subject of a joint hearing by the Warden and the applications and the various objections to those applications were heard all at the same time by the Warden.  As a result of the Warden's reasons for decision in that joint hearing, we then proceed to the next stage which was the four separate order nisi's by the various parties.

HIS HONOUR:   But in respect of those proceedings in the Warden's Court, I gather that your clients were not only objectors to the applications both by the applicant and the other respondents but also had an application in their own right?

MR STEVENSON:   They have their own application in their own right which comes later in time to all of the other competing applications. 

HIS HONOUR:   Does that have any bearing at all upon the issues in this application; that is, the fact that they were themselves applicants?

MR STEVENSON:   Your Honour, only in the sense that 99 per cent of the time involved in this litigation has been taken up with issues of priority under section 105A of the Mining Act which we are not a party to because we were not there on the same day attempting to lodge our application.  So all of those issues in relation to 105A of the Mining Act do not concern my clients and we have never sought to join issue on those issues.

HIS HONOUR:   Well then, really the crucial question is not so much the 99 per cent but the 1 per cent; what does that relate to and which you did maintain an interest?

MR STEVENSON:   The interest is that we have an application in respect of the same ground.  And, as has been set out in my learned friend's affidavit in opposition, there is a bald statement that in the Warden's Court my clients supported all the other objections to the other applications in a, sort of, ambit sense.  So if one of those objections were successful then hopefully one of those earlier applications would fall out of the way.  But it was just a bald statement to that effect.  We have not sought to argue what the proper construction of 105A may be.

HIS HONOUR:   I understand the negative aspect of this but what is it that you - in the proceedings before the full court, on what issue did you seek to persuade the full court to a particular conclusion?

MR STEVENSON:   We raised two issues, your Honour.  The first is that the Warden erred in relation to the proper construction of section 118, which is a procedural requirement we say, and that is simply the basis upon which we have sought to run our objection to the other applications from the outset.

HIS HONOUR:   118 is it?

MR STEVENSON:   Section 118, your Honour.  It is a requirement that the application be served on the holder of affected pastoral leases.

HIS HONOUR:   I see, yes.

MR STEVENSON:   And what we say is that when the Minister comes to exercise his discretionary power in respect to exploration licence applications, it is conditioned by compliance with the act as opposed to a mining lease where that does not appear.  So for an exploration licence we say that the Minister can only grant if there has been compliance with the act.  What we say is that the competing applicants did not comply with section 118.

HIS HONOUR:   I take it that was an argument that you ran before the full court?

MR STEVENSON:   Yes, it is, and there is a fair bit of comment in relation to it although, obviously, the full court do not seek to determine the issue because they proceeded on the basis of this threshold question of whether or not relief of the nature sought was appropriate in the circumstances of these cases - that is, a warden's recommendation - whether there was any power for the full court to grant a writ of certiorari in relation to what they regarded as merely a recommendation by the Warden not affecting anybody's rights to the minister.  Now, that issue was raised by Minerichie and Tromen, who are the third respondents in this application, at that point of time.

HIS HONOUR:   Now, I may have diverted you.  You said that was an issue which your clients sought to urge before the full court.  Was there any other issue?

MR STEVENSON:   The only other issue, your Honour, was that the Warden, in his reasons for decision, recommended that my client's application be refused and I think there is a bit of common ground between the parties in that respect.  It is, logically, inconceivable.  He seems to be suggesting that our application should be refused simply because we are a couple of weeks behind the other applications whereas he is putting a recommendation for grant subject to the 105A priority question on all of the preceding applications.  So there is no suggestion that our application should be refused for a reason of non-compliance with the act.

HIS HONOUR:   So what is the proposition; that your application may call for consideration if all the other applications fail by reason of some non-compliance?

MR STEVENSON:   The proposition is that our application should have gone forward with a recommendation for grant subject - - -

HIS HONOUR:   But on the basis that the other applications fail by reason of non-compliance with the act?

MR STEVENSON:   That does not concern the Warden.  That is not an issue which, in our submission, is a matter for the Warden.  He needs to look at each application individually and he needs to make a report or a recommendation to the minister separately in relation to each application.

HIS HONOUR:   Yes.  I see.

MR STEVENSON:   It has been perhaps confused because there has been joint hearings of all of the applications all the way through including the order nisi's.  What we say is that if we had not filed a notice of intention to appear on the hearing of this order nisi in the full court, then there would be no basis for us being joined as a respondent in the proceedings in the High Court.

HIS HONOUR:   Well, that may be but the fact is you did.

MR STEVENSON:   We did.

HIS HONOUR:   Now you want to get off the hook as it were.

MR STEVENSON:   Well, we did and we have attempted to explain why.  We did not argue on the issues which both P36 and P37 seek to agitate in the High Court.  If anything, we would have been supporting the attack from Minerichie and Tromen that certiorari could not lay.  So in a sense we are all in the same boat in that regard.

HIS HONOUR:   What is the problem  - I mean, I understand why you are making the application in the way that you are, but what prejudice, if any, is your client - or are your clients likely to suffer simply by submitting such order as the court may make and seeking to be heard on any question of costs?

MR STEVENSON:   The prejudice which they perceive is that they will be a named party in these proceedings which is a matter of public record and public debate.  They believe that they are not a necessary party and therefore they do not want their names in the public domain in relation to perceived litigation in the public sense.

HIS HONOUR:   I suppose one possible difficulty is not so much at the application for special leave stage but if that were refused, well, that would be the end of the matter and no problems arise.  But say it were granted and the matter proceeded to a substantive appeal, is it possible to say that on no conceivable basis could any of the issues that your client - or either of the issues that your clients have raised before the full court could become issues in the appeal before the High Court?

MR STEVENSON:   We do not believe so if the High Court stays with the specific questions of law which both applicants seek to raise in the High Court.  We accept that there is a section 105A argument which must be resolved and it concerns the preceding applications.  We do not want to get into that; we do not think it affects our position; we do not think it is relevant to us. 

And so far as the threshold question of whether or not certiorari is available, well, if the High Court held that well then that would be good, but it is not relevant to us so far as the other parties are concerned and it is not relevant to our order nisi because we do not seek - we are out of time and we do not seek to proceed with our own order nisi which was unsuccessful, for the same reason, in the full court.

HIS HONOUR:   It is a somewhat unusual application, I think, Mr Stevenson; only in the sense that quite often there is debate over the originating process as to whether someone should be a party or not.  Your clients have been parties hitherto and I understand the reasons that you are advancing.
.
MR STEVENSON:   Your Honour, the big distinction that we would urge upon the court is that when you say that we have been parties, one has to bear in mind the nature of these particular proceedings.  We are not parties in the sense of a cause of action against each other at any stage.

HIS HONOUR:   No.

MR STEVENSON:   And the issues which we have sought - the only issue we have sought to raise from the outset which is really section 118, that is all we have wanted to put.  That is all we have argued anywhere.  And this fresh set of proceedings, proposed proceedings in the High Court, raises other issues which do not concern us and, in our submission, are not relevant between us and the other parties.

HIS HONOUR:   Yes. 

MR STEVENSON:   It is an unusual application because, as your Honour would appreciate, most of the authorities are to the opposite when parties are seeking to be joined for whatever reason.  Can I say that, to the extent that my learned friend's affidavit in opposition refers to our opposition to a stay application in the Full Court, I am not sure whether it is a matter for submission, I am not sure where it leads, but we objected to the application for a stay because, in our view, there was just simply no jurisdiction for the court to make the orders.  We were not coming at it because we wanted to do something else at a different place or in a different way. 

It was quite an interesting forensic and legal issue as to whether or not there is jurisdiction in the court to make the orders.  But they have not sought to proceed with that application and I think that would probably be because they would now accept that there is no risk.  There is no question of the Warden being prepared to do anything until these proceedings have been resolved and obviously the minister cannot do anything until he receives an recommendation from the Warden.

HIS HONOUR:   Well the way that you put it, and correct me if this shows any misunderstanding, is that you are not greatly concerned on the question of costs because no doubt you can cover yourselves to a substantial extent, if you so wish, by filing a submission of the sort that we talked about earlier.  It is essentially that your clients do not wish now to be associated with this litigation in which they say they have got no particular interest as to the outcome.

MR STEVENSON:   That is correct, your Honour.  Our submission is that they are entitled to say to the court that we are not a proper party to these proceedings and therefore we should be disjoined.  That is what they say to the court.

HIS HONOUR:   It is a bit hard to say that they are not a proper party in the sense that the applicant for special leave was not entitled to join them because simply by virtue of the fact that they were parties to the order against which the applicant seeks special leave to appeal.

MR STEVENSON:   That is obviously, with respect, an order in respect of all of the four order nisis, that is where we are, if you like, perhaps prejudiced because there has been a joint hearing of all four order nisis, the matters proceeded in that joint way.

HIS HONOUR:   But I do not understand you to be suggesting, at least in respect of the section 118 point and the certiorari point, that those were not matters urged by you in relation to the order nisi that is the subject of this application.  I am sorry, did I not make myself clear?

MR STEVENSON:   Sorry.  The section 118 submission is not relevant to my learned friend's order nisi.  It was relevant only - it was raised in our order nisi.  So if there had not been a joint hearing, we would have had an argument with my learned friend below about section 118 and, presumably, Minerichi and Tromen would have raised against us as they raised against everybody a threshold question.

HIS HONOUR:   Yes.  Yes.

MR STEVENSON:   Your Honour has obviously had an opportunity to read my outline of submissions.  I perhaps do not seek to take it any further at this stage unless there is something that I can assist you with.

HIS HONOUR:   Yes, thank you, Mr Stevenson.  What do you say, Mr Workman?

MR WORKMAN:   Thank you, your Honour.  The section 118 aspect that Mr Stevenson has raised relates, of course, to the service of the exploration license applications, that was a real issue before the Warden's Court and was a real issue before the Supreme Court.  An issue such that Mr Stevenson's clients sought to have removed the various applications, exploration license applications, of the applicant.  Various comments were made by the Full Court in their separate reasons for decision concerning section 118 and the necessity or otherwise for compliance. 

The other major issue before the Supreme Court was what, if any, effect the Warden's recommendation to the minister has and what powers the minister can exercise.  What seems to come through from the various decisions, various Full Court decisions, is that the Warden can make a recommendation either for the grant of an exploration license or against the grant of an exploration license.  What seems to come through is that the minister has virtually an unfettered discretion and it is to that extent that Mr Stevenson's clients, the second respondents, are necessary parties in these proceedings. 

The Warden has made a joint recommendation.  He has only made on recommendation set out in one document and that recommendation is probably in several parts;  the Warden has recommended a number of exploration licenses for grant, he has then made an order with respect to a ballot for some of those applications and, thirdly, he has recommended the second respondents application for exploration license for refusal.  Now, if the minister has an unfettered discretion then, notwithstanding what happens in relation to the ballot, whose marble comes out first, the minister can ignore that, ignore all the recommendations for grant and, in fact, deal with Mr Stevenson's clients applications which have been recommended for refusal.

I think, there is no doubt that, when the matter does get before the minister, that Mr Stevenson's clients will be making submissions to the minister.  They are not saying to this court:  we have simply lost interest in

all of the proceedings, they are still vitally interested in the whole matter.  They are just not interested in relation to the court aspect of proceedings because now, in my submission, they will be concentrating upon what the minister can do and the discretion that the minister can exercise.

HIS HONOUR:   Well, can I just put this to you.  Project yourself in time that the matter comes on for hearing for a grant of special leave.  Perhaps take it one step further, let us assume, for the purpose of the exercise, that special leave is granted.  Your client, through counsel, presents its case;  the respondents are then called on to address.  Do you say there are matters on which the second respondents should properly be heard.

MR WORKMAN:   Yes. 

HIS HONOUR:   Being?

MR WORKMAN:   Being the power that the minister can exercise in face of a warden's recommendation.  And that is set out as one of the specific questions of law raised at page 198 of the application book.  Specific questions of law raised by the application.

HIS HONOUR:   I am sorry, what was that page?

MR WORKMAN:   198 at notation 5(b): 

the legal effect, if any, of the Warden's recommendation to the minister and specifically a warden's finding or the result of the ballot determining the first in time. 

But it is two parts:  "The legal effect, if any, if the Warden's recommendation" - and that is a specific question of law raised in light of the comments of the Full Court that the minister would seem to have an unfettered discretion in relation to all of the applications before him, including the second respondents applications which have been recommended for refusal.

HIS HONOUR:   If the second respondent, the present applicant, were to simply agree to abide by the order of the court and seek to be heard only on a question of costs, is there - and perhaps that is a question better directed to Mr Stevenson than to you - but is there a conceivable prejudice to those respondents in respect of any order that the court might make on the hearing of an appeal.

MR WORKMAN:   Well, as to whether there is any prejudice, if they agree to abide by the decision of the court then they are really open to whatever the court may say.  For example, in relation to the effect of a warden's recommendation upon a minister and that may well prejudice their ‑ ‑ ‑ 

HIS HONOUR:   Well, what is your proposition there:  that if they want to keep that matter alive and be heard on that point they should - it is up to them to address submissions to the court if there is a grant of special leave.

MR WORKMAN:   Yes.  Yes, that is correct.  Because the position now is that, if the second respondents were removed as parties to these proceedings, I would suggest that the following could take place.  At the moment, as Mr Stevenson has correctly pointed out, the Warden has not done anything.  There is a pending application for a stay of proceedings before the Warden - the proceedings before the Warden as set out in my affidavit have been stayed at various times but at this point in time there is merely an application before the court. 

If the second respondents are removed as parties to these proceedings, they could go to the Warden and say:  we want a separate recommendation.  In effect, Mr Stevenson used those exact words, "The Warden should have made separate recommendations".  So if the Warden was to then made a separate recommendation in relation to the second respondents exploration license applications, at that point, if the applicant, Mr Creasy, attempted to reactivate the application for stay, the second respondents would not be a party to these proceedings and therefore no stay order could have any effect in relation to them.

Flowing on from that if, per chance, the second respondents do manage to convince the Warden to make a separate recommendation to the minister, we could be in a position whereby all the other parties are arguing the matter in this court.  Meanwhile, the second respondent is putting submissions in to the minister in relation to its refused applications.  To that extent the second respondent should be a party to these proceedings.  If that does happen, then appropriately a stay order could be sought and would be binding upon these second respondents if they ‑ ‑ ‑ 

HIS HONOUR:   Well, it is true, no doubt, that if they are not parties to the proceedings there is no res judicata so far as they are concerned, but if this court made some sort of declaratory orders in respect of the matters that we are speaking of now, or, indeed, if the judgment dealt with that matter, it would be a pretty fair indication to the Warden as to what should be done.

MR WORKMAN:   Yes.  But - yes, that would be a fair indication.  That is not to say that the Warden will necessarily do it. 
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And if perchance it is necessary to seek some specific order, then there would be no specific order in these proceedings that could be sought against the second respondents.  It would presumably then be necessary to make application to join them back into the proceedings or commence some other form of proceedings against them.  The other aspect that I will mention very briefly is that it may well be that this application is in fact premature and possibly it is an application that could and more appropriately should be made if special leave is granted.

HIS HONOUR:   I must say that thought had crossed my mind but I have to deal with the application.

MR WORKMAN:   Yes.

HIS HONOUR:   And short of adjourning it - and Mr Stevenson has not asked me to do that ‑ ‑ ‑ 

MR WORKMAN:   Yes.

HIS HONOUR:   So therefore I think I will really have to deal with it.

MR WORKMAN:   Yes.  I think it flows along the same lines in a matter that your Honour determined, Bahr and Nicolay, number 1, an application for security for costs on a special leave application.

HIS HONOUR:   It is a rather different principle, I think, Mr Workman.

MR WORKMAN:   There was no power, correct, yes.

HIS HONOUR:   But I can see an argument that until special leave has been granted and the basis upon which it is granted is known because the court may if minded to grant special leave simply grant it or limit the grant to a particular issue.

MR WORKMAN:   Yes.

HIS HONOUR:   It is not easy to forecast where these respondents will stand but, as I say, I have not been asked to adjourn it so I had better deal wit it.
MR WORKMAN:   Yes.  Well, that is one of my submissions, that the application is premature and ‑ ‑ ‑ 

HIS HONOUR:   I am not clear whether you are asking to adjourn it or simply pointing out that the fact

that it is premature is an objection to acceding to the application.

MR WORKMAN:   No, I am not asking you to adjourn it.  I am submitting that it should be dismissed at this stage.

HIS HONOUR:   Yes, I understand that. 

MR WORKMAN:   And that the second respondent should come back if perchance an application for special leave is granted.  The third aspect is that Mr Stevenson has raised the aspect of prejudice to his clients.  With respect, when we look at the affidavit of George Francis de San Miguel, sworn 7 February 1995, there is no evidence at all of any prejudice that is being apparently suffered by the second respondents. 

The final aspect is that the second respondents have a perfectly adequate way of dealing with their current position and that is simply to submit to any order that the court may make on the special leave application or, alternatively - and this has been indicated to them and I think I refer to exhibit MPW3 to my affidavit;  alternatively, the applicant will consent to the second respondent's appearance being withdrawn so that they remain a party to the proceedings but they just withdraw their appearance.  Now, that would cure the ‑ ‑ ‑ 

HIS HONOUR:   And on that basis simply take their chances as to the outcome of any appeal if special leave is granted.

MR WORKMAN:   Yes.  Yes, that is correct, yes.  Your Honour, I have no further submissions.

HIS HONOUR:   Yes.  Yes, thank you.  Mr Stevenson, do you wish to say anything by way of reply?

MR STEVENSON:   Yes, if I may, your Honour.  The thrust of my learned friend's submissions appear to be that my clients are necessary parties to these proceedings because of a fear or concern that they may cause something to be done to progress their applications elsewhere.  Now, the fact is that even if they are kept on as parties to these proceedings they obviously are not restrained simply by the mere existence of these proceedings from going to the Warden, as has been perhaps suggested, or even to the Minister, as has perhaps been suggested.

The argument is one which, in our submission, can not be correct;  that we have to be kept as parties to these proceedings in order to prevent us from doing something.  They do not stay us;  they do not prevent us from doing the very things which Mr Workman appears to have some concern about.  In relation to the question of costs below, then obviously that is a matter for debate later but there is simply no basis on which my clients could wear a costs order for what happened below because they did not join issue in any sense with the applicants in these proceedings on the matters which they now seek to take further.

The only issue below was in relation to section 118 and that arose directly out of the second respondents own separate order nisi and that is where the costs order would be dealt with.  It is also interesting to note that the specific questions of law which are sought to be raised in these proceedings are the same as those which are sought to be received by Hot Holdings in P36.  And I must say that when we look at page 198 of the application book and the specific questions of law which this applicant seeks to raise, A and B in my submission - and one has a look at what comes before it in this document - is concerned with the issue of section 105A and what the effect of priority determined by a ballot will be and should be on the Minister making his decision at the end of the day to grant an application.

Now, as I said at the outset, your Honour, all of that is something which we do not have any role to play in;  we can not participate;  it does not concern us.  We recognise and accept that that will have to be resolved between the other parties and that at the end of the day our application is still there hopefully before the Minister.  So those issues, in our respectful submission, do not concern us because they are 105A issues.  So far as this submission is that the application may be premature, if anything I was concerned that we may be criticised for not having been quicker in bringing the application. 

It seems to me that unless there is a possibility or a risk that the High Court on hearing the special leave application may allow the parties to raise issues which they do not specifically seek to raise in the draft notice of appeal - for example, if there is concern about what has been said about section 118 and they want to argue that in the High Court, then we would have thought that they would be constrained by the draft notice of appeal and the questions which they have sought to raise.  And they do not seek to raise that as an issue.

It is glossed over.  We have been in a sense treated in the Warden's Court and in the Full Court as very much a non-party in the sense that the issue we have raised has received very little time or attention by any of the parties.  So if there is a risk that the court may allow the parties to open up and raise other issues such as section 118, that being the only issue that we have any concern about, then our submission would be that the application perhaps should be adjourned pending that hearing.  But we come to you today, sir, on the basis that the parties would not be allowed to raise new issues of law at that hearing. 

So far as my friend's final submission was concerned that we should either simply agree to submit to the order of the court or withdraw our appearance, that of course is a course of action which presupposes that we are in fact necessarily and properly joined in the first place.  And that is the very issue which we seek to raise before your Honour today.  As Hot Holdings have agreed, we would urge upon the court that the matters which concern this applicant in its proceedings do not have any bearing upon the second respondents.  And for those reasons we say that they are not proper or necessary parties to these proceedings and should be disjoined.  If it please your Honour.

HIS HONOUR:   Yes, thank you, Mr Stevenson. 

HIS HONOUR:   This application may be premature only in the sense that until the application for special leave has been heard and, if granted, the basis upon which leave is granted is known, the issues may not be truly defined.  The application itself is not put on the basis of the unnecessary incursion of costs.  If it were, then the respondents can protect themselves by submitting to an order of the court save as to the question of costs and then seeking to be heard on that issue. 

The application is put on the basis that they are improperly joined as parties to the application for special leave and, it follows, as parties to any appeal if special leave was granted.  They have been a proper party to date and in particular in the proceedings before the Supreme Court in which the orders nisi were resisted.  I am not persuaded that they should be removed from the proceedings at this stage when the applicant seeks relief which may well affect the position of the applicant - that is, the applicant for special leave - and the position of these respondents in what may ultimately take place either in the Full Court or before the Warden.  As I am not so persuaded, then it follows that the application should be dismissed.

MR WORKMAN:   Your Honour, I would signal that the application be dismissed and that the second respondents pay the applicants costs of today's appearance.

HIS HONOUR:   Do you have any opposition to the order for costs, Mr Stevenson?

MR STEVENSON:   We have no opposition, thank you, sir.

HIS HONOUR:   The application will be dismissed with costs.  The court will now adjourn.

AT 10.06 AM THE HEARING WAS CONCLUDED