Duncan v Secretary, D.F.A.C.S - [2004] FMCA 800

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DUNCAN v SECRETARY, D.F.A.C.S.

[2004] FMCA 800

ADMINISTRATIVE LAW – Summary dismissal – Rule 13.10 Federal Magistrates Court Rules 2001 – s.10(2)(b)(ii) Administrative Decisions (Judicial Review) Act.

Administrative Decisions (Judicial Review) Act 1977, s.5, 10(2)(b)(ii)
Administrative Appeals Tribunal Act 1975, s.44

Duncan v Administrative Appeals Tribunal (No2) (2004) FCA 1258
(28 September 2004)
Duncan v Hotop & DFACS [2002] FMCA 56
Duncan v Fayle [2002] FMCA 79
Sullivan v Department of Transport (1978) 1 ALD 383)
FCT v McCabe (1990) 21 ALD 740)
Goodfellow v Commonwealth (1982) 5 ALN N57
Dennis Wilcox Pty Ltd v FCT (1988) 14 ALD 794
FCT v Swift (1989) 18 ALD 679-693
Wyeth Australia Pty Ltd v Minister for Health and Aged Care (2002) FCA 330

Applicant:

IAN DUNCAN

Respondent:

SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

File No:

WZ 167 of 2003

Delivered on:

12 November 2004

Delivered at:

Perth

Hearing Date:

2 February 2004

Date of Last Submissions:

9 February 2004

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr T Carey

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed 3 November 2003 be dismissed.
The Applicant shall pay the Respondent’s costs including reserved costs if any pursuant to Schedule 1 of the Federal Magistrates Court Rules to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
Pursuant to Rule 21.15 of the Federal Magistrates Court Rules the Court certifies that it was reasonable for the Respondent to employ an advocate to appear in the proceeding.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 167 of 2003

IAN DUNCAN

Applicant

and

SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

REASONS FOR JUDGMENT

This application is part of what has been described as a long-standing dispute between the applicant and the respondent. It is not necessary to recite the history in detail, save that it is convenient to refer to a recent decision of French J in Duncan v Administrative Appeals Tribunal (No2) (2004) FCA 1258 (28 September 2004) where the history is set out in some detail which at least provides some background as to the dispute between the applicant and the respondent.
However, in this particular application the review is sought of a decision dated 3 October 2003 by Mr Colin Oakley in his capacity as Freedom of Information Review Officer and as a Delegate of the Secretary of the Respondent.
It is appropriate to set out the contents of the letter dated 3 October 2003 which is the subject of this application as follows:
Dear Mr Duncan,
I am writing to advise you of the outcome of a review that I have conducted at your request under the Freedom of Information (FOI) Act. My review is of an earlier decision made by Mrs

E. Greif on 6 August 2003.
Mrs Greif's decision was not to grant you an amendment to statements made in her email to another Centrelink officer dated 26 April 2002.
I have now considered the matter and made a fresh decision.

I have decided to uphold the original decision, not to amend details in that email.
It is noted that Mrs Greif offered to have this document annotated by you and this option is still open to you.
I have decided not to charge you for this review, and am accordingly returning your cheque.
If you disagree with my decision, one of the options open to you is to appeal to the Administrative Appeals Tribunal. To do this you should write to the tribunal within 60 days of receiving this letter. The tribunal address is:
The Deputy Registrar
GPO Box 9955
Perth WA 6001
An appeal does not limit any other legal recourse you may wish to pursue, including a complaint to the Commonwealth Ombudsman, if you feel the department has not handled your request properly.
Colin Oakley
As FOI review officer
Compliance and Service Recovery Office
Area West Australia
03 October 2003
The respondent by an amended response dated 9 December 2003 seeks the following order:
The decision sought to be reviewed is subject to review by the Administrative Appeals Tribunal pursuant to section 55 of the FOI Act and thereafter review pursuant to section 44 of the Administrative Appeals Tribunal Act in the Federal Court of Australia. This Honourable court should exercise its discretion pursuant to section 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act and rule 13.10(c) of the Federal Magistrates Court Rules, or alternatively, the court's inherent jurisdiction to dismiss the application summarily.
At an audio-link directions hearing held on 8 December 2003 directions were made adjourning any application for summary dismissal to 2 February 2004 and the parties were ordered to file and serve an outline of submissions and list of authorities on or before 27 January 2004. The respondent had then been ordered to file and serve the amended response to which reference has already been made.
The applicant filed an outline of submissions and list of authorities on 27 January 2004 comprising 33 pages. The respondent filed an outline of submissions in support of dismissal of application summarily on

27 January 2004 comprising two pages. The applicant filed a further document entitled "Applicant's Submission To Dismissal Hearing 2 February 2004" comprising a further 12 pages.
On 2 February 2004 the applicant was granted leave to rely upon the submissions of the same date and the respondent was then ordered to file and serve an amended outline of submissions by 9 February 2004 together with a reply to the applicant's submissions which by leave were filed on 2 February 2004.
When the matter came before the court on 2 February 2004 the applicant appeared on his own behalf and Mr Kouris appeared on behalf of the respondent. It should be noted that this court had previously delivered judgments in matters where Mr Duncan was the applicant in two applications. The first was Duncan v Hotop & DFACS [2002] FMCA 56. The second matter, Duncan v Fayle [2002] FMCA 79 was delivered on the same date as the first matter, namely

9 May 2002. The first matter was the subject of an appeal to the Federal Court and a decision in that matter was not delivered until 22 March 2004 and accordingly when I was considering the present matter on 2 February 2004 I was concerned to ensure that any pending appeals be resolved given that in the matter of Duncan v Hotop I had considered specifically the issue of whether or not the application under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) was appropriate where there was a final decision of the Administrative Appeals Tribunal (the AAT). I dismissed Mr Duncan's application pursuant to rule 13.10 and made no order as to costs.
The Federal Court in a decision of Nicholson J on 22 March 2004 refused Mr Duncan's application for an extension of time within which to file a notice of appeal. The court found Mr Duncan's application did not establish any error in the exercise of the court's discretion. It is relevant to set out the following paragraphs from His Honour's decision:
“4.In his reasons for judgment delivered on 9 May 2002, the Federal Magistrate recounted that the second respondent had applied for an order pursuant to r 13.10 of the Federal Magistrates Court Rules 2001 (‘the FMC rules’) that an application by the applicant filed on 13 November 2001 be dismissed as an abuse of process. The application purported to seek review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) constituted by the first respondent which was delivered on 15 October 2001. The decision of the Tribunal dealt with a request by the applicant pursuant to s 48 and s 49 of the Freedom of Information Act 1982 (Cth) (‘the FOI Act’) for amendment of certain documents of Centrelink on the grounds that the documents contained personal information which was ‘incorrect and misleading’.
5.His Honour also stated that in his application the applicant had sought review of the Tribunal decision pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’). He referred to very detailed grounds of application filed with the Court by the applicant traversing a wide range of cases canvassing the jurisdiction of the ADJR Act and intended to support his contention that the decision of the Tribunal is a decision to which the ADJR Act applies.
6.Before his Honour submissions were made on behalf of the second respondent that the application was an abuse of process in that it should have been brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) rather than under the provisions of the ADJR Act. Section 44(1) of the AAT Act reads:
‘44
(1)A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.’
7.In submissions for the second respondent reliance was also placed upon the provisions of s 10(2)(b)(ii) of the ADJR Act which reads:
‘Notwithstanding sub-section (1):
(a) …
(b) the Federal Court or the Federal Magistrates Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason -
…; or
(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.’
8.His Honour referred to a number of cases which had been brought to his attention in submissions and did so in the following terms:
‘13.I have been referred to the decision of the Full Court of the Federal Court in Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 where the Full Court said at page 12,
“Even so, in any particular decision, although the decision may be a factual one, all the usual grounds of review will apply for they are regarded as being illustrative of questions of law. Thus a decision-maker may have failed to provide procedural fairness or may have failed to take into account a relevant fact, or may have had regard to an irrelevant matter or the decision may have been so unreasonable that no reasonable decision-maker could have come to it”.
14.I was further referred to the decision of Weinberg J in Percerep v Minister for Immigration (1998) 86 FCR 483. At page 495 the Court referred to the view that had been expressed by Spender J in Servos v Repatriation Commission (1995) 56 FCR 377 at 385 that the jurisdiction of the Federal Court pursuant to s 44 of the AAT Act did not permit the reception of further evidence which was not before the Tribunal and then Weinberg J went on to say,
“The very limited circumstances in which such evidence will be received must, however, include those cases where it is contended that the applicant has been denied procedural fairness before the Tribunal, and evidence is required to make good that claim.”
15.At the same page His Honour states after reviewing the appeal process from a State Magistrates Court to the Supreme Court of Victoria the following,
“… I can see no reason why an ‘appeal’ under s 44 which is itself a misnomer since the court is exercising original rather than appellate jurisdiction when that section is invoked, should not encompass a claim of denial of procedural fairness.”
16.At page 496 Weinberg J cites with approval the observations of Davies J in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 where the court there held that an application brought under the ADJR Act to review a decision of the tribunal was misconceived and s 44 of the AAT Act was the appropriate avenue of appeal. His honour cited the following passage from Tuite’s case per Davies J at p 484,
“The words ‘question of law’ in s.44 encompass matters concerning not only the interpretation of a Federal enactment or the enunciation of the principle of the common law or equity, but also the breach of any duty which the Tribunal was bound by law to perform and the failure of which to perform may lead to the setting aside of the decision. The words ‘question of law’ encompass grounds enunciated in s 5 of the ADJR Act such as the failure to take into account a material consideration, the taking into account of an irrelevant consideration, the making of a decision that no reasonable decision maker would have made, the exercise of a decision making power for a purpose other than for the purpose for which the power was conferred and the failure to provide natural justice”.’
His Honour the Federal Magistrate then added:
‘25.The same factors under s 5 of the ADJR Act which would enable Mr Duncan to properly review his decision can be accommodated under an appeal pursuant to s 44 of the AAT Act.
26.It is desirable that in cases where there is a final decision of the AAT that the appeal rights under the AAT Act be pursued rather than an application for judicial review under the ADJR Act.
27.For those reasons it is my view that the application to dismiss Mr Duncan’s application pursuant to Rule 13.10 should be upheld as I am satisfied that in the present case the application brought under the ADJR Act is an abuse of process and the correct application should be by way of appeal pursuant to s 44 of the AAT Act.’
9.As before the Federal Magistrate the applicant has lodged voluminous submissions referring to a wide range of decisions. As the submissions in support of the present application for the respondents have expressed it, what comes through strongly from these submissions is an apprehension on the applicant’s part that he would be able to run arguments in the context of the ADJR Act application that he would not be able to do in any s 44 AAT Act application. In particular, he argues that he can obtain ADJR Act review but not review under s 44 where the Tribunal has found as a fact a matter of which no evidence existed (see, for example, the applicant’s submissions at pars 8, 17, 94 and 251). He submits that such an error would be a ‘question of fact’. That is clearly, itself, an erroneous submission. The Tribunal will have made an error of law if there is no evidence to support a conclusion of fact: Federal Commissioner of Taxation v Raptis (1989) 89 ATC 4994 per Gummow J at 4996 and cases cited there.
10.Generally speaking the words ‘question of law’ in s 44 of the AAT Act encompass the grounds available under s 5 of the ADJR Act. This appears from the authorities referred to by his Honour: Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 at 484, Percerep v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 483 at 495-496, and Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6 at 12. It is also the case that the applicant is incorrect in any view that on an ADJR application he would have a greater entitlement to adduce evidence not before the Tribunal than he would have had in a s 44 AAT Act application. I accept that the clear legislative purpose behind s 10(2)(b)(ii) of the ADJR Act is to avoid ‘forum shopping’ and to avoid a multiplicity of proceedings. There is, therefore, no basis for the applicant’s central submission that on a s 44 AAT Act application the Federal Court would not have jurisdiction to allow the application on any of the grounds of review sought to be agitated by the applicant, providing the Court was satisfied one or more of the grounds was established.
11.It is unnecessary to address in detail the applicant’s attempts to discredit the reasoning of the applicable authorities. Like the Federal Magistrate, this Court will not be assisted by such an unrewarding and time-consuming task.
12.The Federal Magistrate’s decision was in the exercise of a discretion making his decision subject to review on appeal only where some error occurred in the exercise of the discretion. It also is a matter relating to practice and procedure in which an appellate court will be even more reluctant to interfere. It is apparent that the applicant’s case has not established any error in the exercise of the discretion.”
It is clear that the reservations I expressed about proceeding with the matter on 2 February 2004 were justified in circumstances where I had at the very least considered matters of law which are in part relevant to the present application and where there was an appeal pending in the Federal Court. I considered it appropriate to wait to determine the outcome of that matter. I should add that as a matter of fairness I was prepared to hear brief argument and then allow the parties to file the documents to which reference has already been made.
It was made perfectly clear by Mr Duncan that he has a strong sense of grievance and dissatisfaction with the procedures in the AAT and it is perhaps noteworthy that he successfully appealed from a decision in the Federal Magistrates Court against a refusal of a registrar to permit him to file an application. French J in Duncan v Fayle (2004) FCA 723 (4 June 2004) noted there is a discretion to decline relief under s.10 of the ADJR Act but did not accept that an application should not be filed and accordingly the Federal Magistrates Court's decision was set aside and the application accepted for filing. Ultimately that application was heard by French J in the decision to which reference has been made, namely Duncan v Administrative Appeals Tribunal (No2) (2004) FCA 1258 and although a direction of the Administrative Appeals Tribunal on 17 April 2004 was set aside, the application was otherwise dismissed with each party bearing their own costs in the proceedings.
Before me it became clear that Mr Duncan as a result of his dissatisfaction with what he perceived to be the procedures of the AAT indicated a preference to be heard in a forum where, as he states: “At least the rules of evidence apply”.
I had deliberately waited for the decision of Nicholson J to be delivered and any receipt of submissions arising out of that decision and then upon becoming aware that there was another application pending before French J thought it prudent to at least await delivery of that decision in case it raised any relevant points, particularly as a matter of law, for my consideration of this application for summary dismissal.

Respondent's submissions for summary dismissal

It was submitted that there is now established a solid line of authority for the proposition that in the case of a decision of the AAT the availability of an appeal to the Federal Court under s.44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) means that the description in s.10(2)(b)(ii) of the ADJR Act of "adequate provision is made by any law than this Act under which the applicant is entitled to seek review by the court or by another court or by another tribunal". Reference was made to the decision of this court in Duncanv Hotop & Anor [2002] FMCA 56 which it is noted was upheld on appeal by the decision of Nicholson J on 22 March 2004.
It was submitted that the applicant has failed to exercise either of the following rights which may be open to him:
a)to seek a declaration pursuant to section 62(2) of the Freedom of Information Act (the FOI Act) of an inadequacy in relation to the findings, evidence and material required by section 26 of the FOI Act to be included in a notice of decision provided by the FOI review officer;
b)on the premise of this inadequacy means that there has been no review decision to apply to the Administrative Appeals Tribunal for review under section 55 of the FOI Act (see section 55(3)).

It was submitted that in considering whether "adequate provision" is "made" in terms of s.10(2)(b)(ii) of the ADJR Act it is necessary to consider the totality of the provision for which review is made. In the present case it was submitted that entails considering the avenues referred to pursuant to ss.62(2) and 55(3) of the FOI Act and judicial review of any decision of the AAT pursuant to s.44 of the AAT Act. It was submitted it would be artificial and would tend to defeat the policy of s.10(2) of the ADJR Act to limit the consideration to only the most immediate of the steps (if more than one) in the review process.
It was argued that equally an intermediate step of the review process in the nature of merits review cannot make inadequate what the courts have held to be adequate provision made by a law other than the ADJR Act under which the applicant is entitled to seek review. Accordingly, it was submitted that the court should dismiss the application summarily in the exercise of its discretion having regard to s.10(2)(b) of the ADJR Act.
Referring to submissions made by Mr Duncan and filed on 2 February 2004, the respondent submitted that contrary to the applicant's limited view of matters which can be reviewed by the Federal Court pursuant to s.44 of the AAT Act and a perception that any such review is inadequate should be rejected as cases demonstrate that review is possible under the AAT Act by the Federal Court upon a range of grounds including failure to provide procedural fairness (see Sullivan vDepartment of Transport (1978) 1 ALD 383), Wednesbury Unreasonableness (see FCT v McCabe (1990) 21 ALD 740), lack of jurisdiction to make the decision (Goodfellow v Commonwealth (1982) 5 ALN N57), failure to take account of relevant considerations, take into account irrelevant considerations (Dennis Wilcox Pty Ltd v FCT (1988) 14 ALD 794) and where the tribunal attributes little weight to a matter deserving of great weight, this may amount to a failure to take a relevant consideration into account (FCT v Swift (1989) 18 ALD 679-693).
Reference was made to a decision relied upon by the applicant, namely Wyeth Australia Pty Ltd v Minister for Health and Aged Care (2002) FCA 330 (Wyeth). That case provides an example of a respondent's motion for summary dismissal being upheld by the court in the exercise of its discretion under s.10(2)(b)(ii) of the ADJR Act. Specific reference was made to the decision of Finn J in Wyeth where the court states the following:
42 The respondents accept that the onus is on them to persuade the court that (i) it should not exercise its ADJR Act jurisdiction: Kelly v Coats (1981) 35 ALR 93 at 94; Hagedorn v Department of Social Security (1996) 44 ALD 274 at 281; and (ii) for the purposes of its s 10(2)(b)(ii) motion, all facts in support of the applicant's claim must be assumed in the applicant's favour - an assumption that will usually result in the conclusion that an applicant will be able to make out its claim: Edelsten v Minister for Health (1995) 58 FCR 419 at 421-422. Nonetheless they contend that the legislative scheme of the TG Act is such not only that adequate provision is made to review the Minister's decision, but also that in the detail of the Act's review structure - and in particular in its s 60A scheme for handling "new information" - there is a manifest legislative purpose and policy that the TG Act review provisions be followed: Edelsten's case, at 423-425; Darling Downs Bacon Co-operative Association Ltd v Comptroller-General of Customs (1994) 50 FCR 435 at 442. Even assuming judicially reviewable errors had occurred in the respondents' decisions and in the conduct engaged in for the purposes of those decisions, the Tribunal in its review would not only be unaffected by those errors, it could also consider all of the issues afresh thus curing any previous error or unfairness and in particular any prior breach of natural justice (which is itself denied): cf R v Marks; Ex parte Australian Building Construction Employees Builders and Labourers' Federation (1981) 147 CLR 471 at 485. It is submitted there is no hardship to Wyeth inherent in its being obliged to go to the Tribunal: Du Pont (Australia) v Comptroller-General of Customs (1993) 30 ALD 829 at 832. If it does not introduce "new information" it will enjoy a full merits review and a decision which (unless itself giving rise to a question of law) that will be unreviewable by this court and will be "completely binding on the parties": Edelsten's case, at 424-425. If Wyeth does introduce "new information" then that information will be likely to have to be evaluated - as the legislature in s 60A clearly envisaged it must, if it is to be used.
43 The applicant's contention is that the form of Tribunal review envisaged by the TG Act is not "adequate" for s 10(2)(b)(ii) purposes. The reason for this is that, because of restrictions imposed by s 60A the Tribunal cannot make its own decision on all the merits. In consequence because the Tribunal cannot substantively consider new information - and the introduction of such has been foreshadowed as I have indicated in the earlier factual narrative - the "maximum result obtainable" by the applicant before the Tribunal would be for the Tribunal to remit the matter under s 60A to an authorised delegate for a fresh decision and the applicant would have to convince the Tribunal to make that decision. This in turn, it is asserted, would be a long and costly process. Additionally the applicant asserts that Mr Proudfoot's failure to supply proper reasons for decision makes merits review impractical.
44 I would have to say I am in substantial agreement with the respondents' submissions in this matter. There is a clearly adequate and appropriate review process established by the TG Act - and a process, moreover, which the legislature has deliberately contrived via s 60A so as to produce particular outcomes whenever an applicant seeks (as here) to introduce "new information" in the review process. It is, in my view, no proper cause for complaint to point to the restriction s 60A imposes on merits review by the Tribunal. Parliament, for its own good and proper reason as the Explanatory Memorandum indicated, intended that restriction. The effect of the present judicial review application is simply to attempt to subvert the purpose of the legislation in its treatment of new information. Even if the judicial review proceedings were permitted and were successful, and the Minister's and Mr Proudfoot's decisions were set aside, the same practical result would in all likelihood ensue as if the Tribunal were to remit the matter under s 60A. If the effect of the judicial review proceedings was that the Minister's decision was set aside, and the Minister was required to consider the matter anew (but cf s 60(4) referred to below) the likelihood is, as the Explanatory Memorandum makes plain, that the matter would be remitted to an authorised delegate for a fresh decision. I would make an additional comment (on the assumption I had allowed joinder of the Secretary's delegate). If both the Minister's and the Secretary's delegate's decisions were to be set aside the same result would ensue - albeit without the need to pay a new evaluation fee under s 60A(6). I would add, though, that there would be a real question in any event whether, in judicial review proceedings, the Court could or would set aside the earlier decision of the Secretary's delegate after an appeal to the Minister had occurred because of the latter's corresponding capacity to cure preceding errors, etc and, subject to s 60A, to take new information into account. Even if the need now to advance new information arose because of an earlier denial of natural justice - and this is controversial on the facts given the circumstances of the Minister's reconsideration of the decision of the Secretary's delegate on ADEC's advice - that information would, if it was to be used, require evaluation. In the circumstances the Act prescribes how such could occur. I see no reason why there should be resort to judicial review proceedings to secure what the Act itself accommodates.
The applicant provided voluminous material referred to earlier in this judgment, and in particular on the issue of summary dismissal strongly opposed the respondent's application and to a large extent sought to agitate issues which were relevant prior to the delivery of this court's decision in Duncan v Hotop to which reference has been made.
I have considered the applicant's submissions and reject them. It would be inconsistent for this court to adopt a view different to the view it already adopted in the decision of Duncan v Hotop upheld on appeal by Nicholson J in his Honour's decision delivered on 22 March 2004 to which reference has already been made.
I further add that, in my view, the decision of Wyeth assists the respondent rather than the applicant in this case as I am likewise satisfied in the present case that the respondent's arguments are correct, that there is an appropriate avenue of appeal arising from ss.62(2) and/or 55(3) of the FOI Act, both of which I am satisfied provide adequate provision under which the applicant is entitled to seek review by the AAT and ultimately judicial review of any AAT decision pursuant to s.44 of the AAT Act. I accept that it is artificial and contrary to the policy of s.10(2) of the ADJR Act to limit consideration to either the immediate or intermediate steps of the review process in an application of this kind. Whilst I accept that the applicant may have an aversion to proceeding before the AAT given the past extensive history, that is not of itself a sufficient basis upon which this court should exercise its discretion in his favour and against the submissions made for and on behalf of the respondent.
Accordingly, it follows, in my view, that the application for summary dismissal should be upheld and that the applicant's application filed 3 November 2003 be dismissed with costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 12 November 2004