Director-General NSW Department of Community Services & JLM

[2001] FamCA 1338

[2001] FamCA 1338

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA66 of 2000
File No. SY7060 of 1999

IN THE MATTER OF:

DIRECTOR-GENERAL
NSW DEPARTMENT OF COMMUNITY SERVICES

Appellant/Central Authority

- and -

JLM

Respondent/Mother

EDITED REASONS FOR JUDGMENT

BEFORE:  Ellis, Coleman and Joske JJ.
HEARD:  24th day of July 2001
DATE OF ORDERS:          24th day of July 2001 and 29th day of November 2001
DATE OF PUBLICATION OF JUDGMENT:    29th day of November 2001

APPEARANCES:    Mr Hill of counsel, instructed by I. V. Knight, Crown Solicitor, Crown Solicitor’s Office, Level 5/60-70 Elizabeth Street,
Sydney  NSW  2000, appeared on behalf of the appellant Central Authority.

Dr. Griffith QC with Mr Friedlander of counsel, instructed by Aubrey F. Crawley & Co, Solicitors, Level 5/200 George Street, Sydney  NSW  2000, appeared on behalf of the respondent mother.

Catchwords:             CHILD ABDUCTION - Hague Convention on Child Abduction - Whether reg 16(3)(b) was engaged - Discretion to return the child.

COSTS - Whether the Central Authority has immunity from an order for costs.

This was an appeal by the Director-General, NSW Department of Community Services (“the Central Authority”) against the order of Rose J. made on 23 June 2000.  On that day, his Honour set aside the order made by Judicial Registrar Johnston made on 3 December 1999 and dismissed the application of the Central Authority, acting on behalf of the father pursuant to the provisions of the Family Law (Child Abduction) Regulations (“the Regulations”), for an order for the return of the only child of the marriage, M to Mexico.

The appeal was heard on 31 October 2000 and delivered judgment on 30 November 2000. The appeal was allowed and an order made that the child be returned to Mexico. See [2000] FamCA 1502. The mother applied for special leave to appeal to the High Court and the application for special leave and the appeal itself were heard by the High Court on 29 March 2001.

On 27 June 2001, the High Court allowed both the application for special leave to appeal and the appeal, with costs.  The orders of this Court were set aside and the matter remitted for further consideration consistent with the reasons for judgment of the High Court.  The High Court also ordered that the costs of the original proceedings in the Full Court of the Family Court and on remitter, and the trial be in the discretion of this Court.  See (2001) FLC
93-081.

On appeal, the Central Authority relied upon the original grounds of appeal, although no submissions were made in support of them in light of the High Court’s reasons for judgment. 

Held:-

• Consistent with the reasons for judgment of the High Court, the trial Judge was correct in finding that reg 16(3)(b) had been engaged.

• In considering the exercise of the trial Judge’s discretion, it was not demonstrated that the trial Judge failed to take into account any relevant consideration, gave inappropriate weight to any factor or that he otherwise erred in the appellate sense in the exercise of his discretion.

Accordingly, the appeal was dismissed.

The mother sought an order that the Central Authority pay her costs of the hearing before Rose J, the original appeal to the Full Court and on remitter.

Held in dismissing the mother’s application for costs:-

• In De L v Director-General, NSW Department of Community Services [No 2] (1997) 190 CLR 207, the High Court did not purport to determine whether reg 7 is, in effect, a purported partial repeal of, or amendment to, s 117 of the Family Law Act 1975 (Cth) or to rule on the relationship between reg 7 and s 117.

• Subsequently to the decision of De L v Director-General, NSW Department of Community Services [No 2](supra) being delivered, s 117(1) was amended and is now expressed to be subject to s 117AA which, inter alia, restricts the circumstances in which an order for costs can be made against a body such as a Central Authority. In summary, s 117AA(2) states that an order for costs cannot be made against a Central Authority unless the Central Authority has, in the proceedings, asserted powers or functions outside the scope of the Regulations.

• In the instant case, the Central Authority did not assert powers or functions outside the scope of the Regulations.

• It follows that the Central Authority has a qualified immunity from an order for costs deriving not only from reg 7 but also from the provisions of s 117AA.

Reportable.

INTRODUCTION

1. This is an appeal by the Director-General, NSW Department of Community Services (hereinafter referred to for the sake of convenience as “the Central Authority”), as State Central Authority for New South Wales under the Family Law (Child Abduction Convention) Regulations (hereinafter referred to for the sake of convenience as “the Regulations”) against the order made by Rose J. on 23 June 2000. On that day, his Honour set aside the order made by Judicial Registrar Johnston on 3 December 1999 and dismissed the application of the Central Authority filed on 27 August 1999 brought on behalf of the father of the child M, pursuant to the provisions of the Regulations, for an order for the return of the child to Mexico. M was born in Mexico in February 1997 and is the only child of the father and the mother.

HISTORICAL BACKGROUND

1. The historical background is set out in paragraphs 2 to 12 inclusive of our reasons for judgment published on 30 November 2000 and we therefore do not propose repeating that material.

1. We would, however, reiterate that the application filed on 27 August 1999 by the Central Authority came on for hearing before Judicial Registrar Johnston on

   
   

   17 November 1999.  On 3 December 1999, he made the following orders:-

“1.That the respondent mother make such arrangements as are necessary to ensure the return of the child M born on 7 February 1997 to Mexico forthwith in the company of such person and upon such conditions as the Court shall order pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction.

2.       That the application by the mother for costs be dismissed.

3.That leave be given to both parties to re-list these proceedings on short notice for further orders concerning the details of the arrangements for return of the said child to Mexico.”

1. On 22 December 1999, an Application for Review was filed on behalf of the mother.  That application came on before Rose J. on 6 March 2000.  On 23 June 2000, he delivered judgment and made the following orders:-

“1.      That Order 1 made on 3 December 1999 is set aside.

2.That the Application of the Director-General of the Department of Community Services filed 27 August 1999 is dismissed.”

1. On 24 July 2000, the Central Authority filed a Notice of Appeal, the grounds of appeal being:-

“1.The learned Trial Judge erred in holding that the mother’s threat to commit suicide if the child were returned to Mexico constituted a grave risk of psychological harm to the child within the meaning of Regulation 16(3)(b) of the Family Law (Child Abduction Convention) Regulations 1986.

2.The learned Trial Judge erred in giving undue weight to the threat made by the mother that she would commit suicide if the Court ordered the return of the child to Mexico pursuant to the Family Court (sic) (Child Abduction Convention) Regulation (sic) 1986.

3.The learned Trial Judge erred in giving no or insufficient weight to the fact that the mother was the originator of the source of the grave risk of psychological harm to the child within the meaning of Regulation 16(3)(b) by herself making the threat of suicide.”

1. That appeal was heard by us on 31 October 2000.  We concluded, as appears in our reasons published on 30 November 2000, that “it was not open to the trial Judge to find that the very serious risk or high risk of suicide by the mother in the event of an order being made requiring M to be returned to Mexico is such as to create a grave risk of psychological harm to M which would place M in an intolerable situation; see Warren v Coombes (1979) 142 CLR 531. He thus erred in finding that “the terms of Regulation 16(3)(b) have been made out.”” Accordingly, we were of the view that Ground 1 had been established. Having regard to that conclusion we did not consider Grounds 2 and 3.

1. We thus allowed the appeal, set aside Order 2 made on 23 June 2000 and otherwise ordered:-

““1.That if the mother, … , wishes to accompany the child M born

7 February 1997 to Mexico, she apply to the Consulate General for Mexico in Sydney within ten (10) days of the date of these orders for a visa to enable her to travel to Mexico with the said child and to remain in Mexico pending the outcome in Mexico of proceedings for the residence of the said child.

2.That if the mother decides to return to Mexico with the said child, upon the father, … , giving the following undertakings to the Australian Central Authority, namely:

(a)that he will pay for the cost of travel from Australia to Mexico of the mother and the said child;

(b)that he will take all necessary steps to support the mother’s application to the Consulate General for Mexico in Sydney for her and the said child to return to and remain in Mexico;

(c)that he will not seek or support the institution of any criminal proceedings against the mother arising out of the removal of the said child from Mexico;

(d)that he will agree to a stay of any existing orders made by a court of competent jurisdiction in Mexico relating to the residence of the said child and that he will not remove nor support the removal of the child from the care and control of the mother until the issue of residence is heard and finally determined;

(e)that until a court of competent jurisdiction in Mexico makes a determination on an amount of maintenance for the mother and the said child, he will pay to the mother a sum equivalent to $US300.00 per week to cover the cost of accommodation and living expenses for the mother and the said child until the issue of residence is heard and finally determined;  the first of such payments to be made to the mother prior to leaving Australia with the said child in the sum of $US1200.00 to cover a period of four weeks; and

(f)that he will co-operate with the mother to ensure that a court of competent jurisdiction in Mexico determines the issue of residence without delay,

the Central Authority shall cause the said child to be returned by air from Sydney to Mexico in the company of the mother.

3.That if the mother decides not to return to Mexico with the said child, upon the father, … , making the necessary arrangements in consultation with the Australian Commonwealth Central Authority for the said child’s travel from Australia to Mexico, the Central Authority shall cause the said child to be returned by air from Sydney to Mexico.”

3.       That there be no order as to costs of and incidental to the appeal.

4.That each party have liberty to apply on 24 hours notice in relation to the implementation of these orders.”

1. The mother thereafter sought special leave to appeal to the High Court.  On 27 June 2001, the following orders were made in those proceedings:-

“1.Application for special leave to appeal granted, and appeal treated as instituted and heard instanter and allowed with costs.

2.Set aside orders of the Full Court of the Family Court of Australia of

30 November 2000.

3.Remit the matter to the Full Court of the Family Court of Australia for further consideration consistent with the reasons for judgment of this Court.

4.The costs of the original proceedings in the Full Court of the Family Court of Australia and on remitter, and of the trial, be in the discretion of the Full Court.”

REASONS FOR JUDGMENT OF THE HIGH COURT

1. In a joint judgment, Gaudron, Gummow and Hayne JJ, with whom Callinan J. agreed, held that the conclusion of the Full Court referred to in paragraph 6 hereof was not open.  Their Honours went on to record that because this Court had formed the view that reg 16(3)(b) was not engaged, it did not consider the other two grounds of appeal contained in the Notice of Appeal of the Central Authority “which might, on one view of them, be thought to have invited attention to the way in which the primary judge exercised his discretion by refusing to make an order for return.” 

1. Their Honours went on to say:-

“79.… Each appears to be the particulars of a complaint that the primary judge's discretion miscarried when he refused to make the order for return.  One of those two grounds asserted that the primary judge gave "undue weight to the threat made by the mother that she would commit suicide".  The second asserted that the primary judge gave "no or insufficient weight to the fact that the mother was the originator of the source of the grave risk of psychological harm".

80.In so far as these grounds are intended to invite attention to the exercise of discretion, as failures to take account of material considerations [House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.], they will have to be dealt with by the Full Court. It is as well to say, however, that they are grounds which appear to ignore the fundamental fact found by the primary judge (and not thereafter disputed) that the mother is ill. To say that she is the originator of the source of the risk of harm appears to take no account of the fact that the mother is not in command of her situation and it betrays a complete lack of any understanding of the major depressive illness from which she suffers.”

1. We would record at this point that Gleeson CJ. and Kirby J. delivered separate judgments in which each concluded that special leave would be granted but the appeal of the mother dismissed.

FURTHER HEARING BEFORE THIS COURT

1. On 24 July 2001, as a consequence of the remitter from the High Court, the appeal of the Central Authority was further considered by us.  After hearing submissions from counsel for the Central Authority and Senior Counsel for the mother, we ordered, inter alia, that the appeal be dismissed and indicated that we would publish our reasons for so ordering at a later date.  We also heard submissions from both counsel in relation to the costs issues.

SUBMISSIONS ON APPEAL

Cross-Examination

1. In the course of his submissions, counsel for the Central Authority referred to the fact that the application had proceeded before the trial Judge on the basis of the affidavits and other written material which was before him and oral submissions.  None of the deponents of any of the affidavits relied upon were cross-examined before the trial Judge.

1. The Full Court has considered the question of cross-examination of deponents of affidavits in relation to applications made pursuant to the Regulations on a number of occasions; see Gazi and Gazi (1993) FLC 92-341, Hanbury-Brown and Hanbury-Brown; Director General Community Services (1996) FLC 92-671 and PCR and BEM [2001] FamCA 136. As Kirby J. observed in De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 690, a judge of the Family Court enjoys a wide discretion in the procedures to be adopted in such applications but that discretion is not so large as would defeat the attainment of the objectives of the Convention and Regulations. Notwithstanding the speedy process and summary procedure envisaged by the Regulations, in appropriate cases, cross-examination of the deponents of affidavits and the hearing of oral evidence should not only be permitted but may well be essential in the interests of justice. Such an approach is not inconsistent with the authorities to which we have referred.

Grounds 2 and 3

1. The Court drew counsel's attention to the observations contained in the majority judgment in the High Court which we have set out in paragraph 10 hereof and went on to observe that neither in the written outline of argument nor in oral argument were any submissions made in support of Grounds 2 and 3. 

1. Counsel for the Central Authority advised us that, notwithstanding the engagement of reg 16(3)(b), he had no instructions to submit, in the circumstances, that it was appropriate for the relevant discretion to be exercised against the mother.

1. Having found that reg 16(3)(b) was engaged, the trial Judge at paragraphs 97 to 100 inclusive of his reasons considered the exercise of the discretion.  He concluded that consideration by saying:-

“100.I have given more weight to the factors that support the exercise of discretion for the refusal of making an order for the return of the child, than those that favour such a return as I consider that it is in the best interests of the child to take the former course.”

1. It has not been demonstrated to our satisfaction that in coming to that conclusion the trial Judge failed to take into account any relevant consideration, gave inappropriate weight to any factor or that he otherwise erred in the appellate sense in the exercise of the discretion.  Grounds 2 and 3 were thus not established.

1. Accordingly, we dismissed the appeal.

COSTS OF THE APPEAL

1. Senior Counsel for the mother sought an order that the Central Authority pay the mother’s costs of and incidental to the hearing before Rose J, together with her costs of and incidental to the original hearing before this Court and the costs of the hearing before this Court on remitter from the High Court.

1. Counsel for the Central Authority opposed the making of any order for costs in favour of the mother.  He referred us to reg 7 of the Regulations, to De L v Director-General, NSW Department of Community Services [No 2] (1997) 190 CLR 207 and submitted that reg 7 rendered the Central Authority immune from an order for costs.

1. Regulation 7 provides:-

“A person who holds office as the Commonwealth Central Authority, who is appointed to act as that Authority or who, being a State Central Authority, exercises the powers and performs the functions of that office shall not be made subject to any order to pay costs in relation to his or her exercising the powers, or performing the functions, of the Commonwealth Central Authority.”

1. In De L v Director-General, NSW Department of Community Services [No 2] (supra), Toohey, Gaudron, McHugh, Gummow and Kirby JJ, in a joint judgment, considered the scope of the immunity created by reg 7. Their Honours said at 222:-

“From that construction, two matters relevant to the operation and effect of reg 7 emerge.  First, reg 7 cannot immunise either the Commonwealth Central Authority or a State Central Authority with respect to costs in proceedings in which they assert powers or functions outside the scope of the Regulations.  The second is that, even if the Regulations extend beyond what is required by the Convention, immunity only extends to that which is "necessary or appropriate to give effect to the Convention".

It follows, in our view, that reg 7 does not provide immunity against costs with respect to proceedings or, perhaps, more accurately, that aspect of proceedings in which either the Commonwealth Central Authority or a State Central Authority asserts a meaning or operation of the Regulations which their terms do not bear or which is neither necessary nor appropriate to give effect to the Convention.”

1. Counsel for the Central Authority submitted that the Central Authority did not assert in these proceedings a meaning or operation of the Regulations which their terms do not bear or which was neither necessary nor appropriate to the Convention.  He thus submitted that the Central Authority was immune from an order for costs.  Notwithstanding the submissions to the contrary made by Senior Counsel for the mother, we are not persuaded that, in the instant proceedings, the Central Authority did assert powers or functions outside the scope of the Regulations and accept the submission of counsel for the Central Authority.

1. In De L v Director-General, NSW Department of Community Services [No 2] (supra), the High Court was called upon to consider whether reg 7 operated to derogate from the power given to the High Court by the Parliament to provide for the costs of proceedings before the High Court. That power to provide for costs is found in s 26 of the Judiciary Act 1903 (Cth). In the course of that consideration, the majority said at 220:-

“The question is whether reg 7 is, in effect, a purported partial repeal of s 26. Regulation 7 is not, in terms, expressed as a control, or limitation, upon the powers of courts or tribunals. But as courts and tribunals are the only bodies which ordinarily have the power to make orders for the payment of costs, the effect of reg 7 is to limit or control their powers. In the case of the Family Court of Australia, the regulation accommodates itself quite comfortably to the provisions of s 117 of the Family Law Act. That section establishes the primary rule that, subject to specified exceptions, to one of which reference will later be made, each party to proceedings under the Act bears his or her own costs (s 117(1)). This is not the general rule observed in this Court, enjoying as it does the power conferred by s 26 of the Judiciary Act.

The power to provide costs is an important one designed to ensure that a court may protect a successful party against the substantial burden of costs which could otherwise render its success nugatory. The crushing burden of costs might be a disincentive to parties prosecuting just and lawful arguments in this Court. Furthermore, there are special reasons in this Court why the operation of s 26 of the Judiciary Act should not be narrowed. Those reasons include the function of the Court in expounding points of general principle which have application to many parties beyond those immediately involved in the litigation. Because proceedings, such as the instant appeal, must run the gauntlet of special leave requirements and the possibility of the participation of the Commonwealth, the States and other interveners, which may substantially enlarge the hearing, it can be assumed that, by the time such proceedings reach this Court on appeal, they typically involve points of law of general application and often national importance. So it certainly was in the appeal of Mrs
De L. Her case involved the elucidation of the operation of the Family Law (Child Abduction Convention) Regulations. In such circumstances, it could occasion a serious injustice to a party such as Mrs De L to deprive her of the ordinary benefit of success in the appeal to this Court, viz an order for costs in her favour. It would seem extremely unlikely that the Director-General, who resisted Mrs De L's appeal, would himself have to bear the costs of elucidating the points of principle of general application. Accordingly, the merits are entirely in favour of maintaining the order which was made.”

1. Their Honours concluded that it was “impossible to treat reg 7 as manifesting an intention to derogate from the broad power to award costs conferred on this Court by s 26 of the Judiciary Act. That is not to say that reg 7 is not a relevant consideration in the exercise of the Court’s power under s 26.”

1. In our view, in that case, their Honours did not purport to determine whether reg 7 is, in effect, a purported partial repeal of or amendment to s 117 of the Family Law Act 1975 (Cth) or to rule on the relationship between reg 7 and s 117. It may have been arguable that, prior to the commencement of the Family Law Amendment Act 2000 (Cth) (hereinafter referred to as “the Amending Act”), there was an inconsistency between reg 7 and s 117(2) because reg 7 purported to restrict the unrestricted terms of s 117(2). See, however, De Lewinski & Legal Aid Commission of New South Wales and Director-General, New South Wales Department of Community Services (unreported, Full Court Sydney, handed down 16 July 1997) and Attanasio & Director-General, Department of Community Services [2000] FamCA 1361 to which neither counsel, in the instant case, referred us.

1. Senior Counsel for the mother made further detailed submissions based on the power given to the Family Court by the Parliament to provide for costs before this Court which is found in s 117 of the Family Law Act together with submissions based on what was described as the court’s inherent power, the justice of the case having regard to the issues ventilated in the appeal, the outcome of the appeal, the implication said to arise from the remitter of the questions of costs and the financial circumstances of the parties. For the reasons which appear hereunder, we do not accept these submissions. In particular, we do not consider that it can be inferred from the fact that the High Court remitted the various questions of costs to us, that it ruled expressly or by implication, that we have a power to make the orders for costs sought by the mother.

1. Neither Senior Counsel for the mother nor counsel for the Central Authority drew our attention to the amendments made to the Family Law Act, and in particular, to s 117, subsequent to the publication of the judgment in De L v Director-General, NSW Department of Community Services [No 2] (supra).  These amendments are to be found in the Amending Act and would appear to apply in the instant case, since the appeal must be determined according to the law at the time of the hearing of this appeal:  Allesch v Maunz (2000) FLC 93-033 at 87,516. It is thus necessary to consider the relationship between reg 7 and the provisions of s 117 in its present form.

1. Section 117(1) now provides:-

“Subject to subsection (2) and sections 117AA and 118, each party to proceedings under this Act shall bear his or her own costs.”

1. Section 117(2) provides:-

   “If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (2A) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.”

1. Section 4 provides, inter alia, that “this Act includes the regulations”.

1. There is no reason, in our views, to interpret the word “regulations” as restricted to the Family Law Regulations as distinct from other regulations made under the Act. Thus, the definition includes the Family Law (Child Abduction Convention) Regulations and s 117 is applicable.

1. The Amending Act inserted s 117AA which provides:-

“(1)In proceedings under regulations made for the purposes of Part XIIIAA, the court can only make an order as to costs (other than orders as to security for costs):

(a)in favour of a party who has been substantially successful in the proceedings; and

(b)against a person or body who holds or held an office or appointment under those regulations and is a party to the proceedings in that capacity.

(2)However, the order can only be made in respect of a part of the proceedings if, during that part, the party against whom the order is to be made asserted a meaning or operation of this Act or those regulations that the court considers:

(a)       is not reasonable given the terms of the Act or regulations; or

(b)is not convenient to give effect to Australia's obligations under the Convention concerned, or to obtain for Australia the benefits of that Convention.

(3)In proceedings under regulations made for the purposes of section 111B, the court can also make an order as to costs that is:

(a)against a party who has wrongfully removed or retained a child, or wrongfully prevented the exercise of rights of access (within the meaning of the Convention referred to in that section) to a child; and

(b)in respect of the necessary expenses incurred by the person who made the application, under that Convention, concerning the child.”

1. The Regulations are “regulations made for the purposes of Part XIIIAA” because

   
   

   s 111B is contained within that Part. Accordingly, s 117AA applies to the present proceedings, ss (1) and (2) of which restrict the power to make an order for costs in certain respects. Subsection (3) is not presently relevant.

1. Section 117(1) states the principle that, subject to the matters specified therein, each party to proceedings under “this Act” shall bear his or her own costs whilst s 117(2) contains the power, subject to the limitations therein expressed, to make an order for costs. However, it is ss (1), rather than ss (2), that is expressed to be subject to

   
   

   s 117AA. The question arises whether the provisions should nevertheless be interpreted so that the power to make an order for costs, albeit in ss (2), should also be taken to be subject to s 117AA.

1. To determine this question, it is necessary to identify the operation of the relevant provisions. Section 117AA(1) restricts the power to make costs orders in two ways. Firstly, the order can be made only in favour of a party who is substantially successful in the proceedings. Secondly, the order can only be made against a person or body who holds or held an office or appointment under the Regulations and is a party to the proceedings in that capacity. Section 117AA(2) in substance restricts the circumstances in which an order for costs can be made against a body such as a Central Authority. Put shortly and imprecisely, an order for costs cannot be made against the Central Authority unless the Central Authority has, in the proceedings, asserted powers or functions outside the scope of the Regulations.

1. Thus, we are of the view, on a consideration of the legislation as a whole and having regard to its evident intention of the legislation, that both s 117(1) and s 117(2) must be read subject to the provisions of s 117AA.

1. It follows that the Central Authority has a qualified immunity from an order for costs deriving not only from reg 7 but also from the provisions of s 117AA. As set out in paragraph 24 hereof, we are not persuaded that, in the instant case, the Central Authority asserted powers or functions outside the scope of the Regulations and thus the provisions of ss 117AA(2) have not been engaged. It follows that the mother’s application for costs must fail.

CONCLUSION

1. Accordingly, we are of the view that the application of the mother that the Central authority pay her costs of and incidental to the hearing before Rose J, of and incidental to the original hearing before this Court and of and incidental to the hearing before this Court on remitter from the High Court should be dismissed.

ORDER

1. We thus order:-

1.That the application of the respondent mother for an order that the appellant pay her costs of and incidental to the hearing before Rose J, of and incidental to the original hearing before this Court and of and incidental to the hearing before this Court on remitter from the High Court be dismissed.

I certify that the preceding 41 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.



Associate