Farhat v The Director of Public Prosecutions

[2017] HCATrans 92

[2017] HCATrans 092

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H2 of 2017

B e t w e e n -

SHADI JOSEPH FARHAT

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for stay

NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO HOBART AND LAUNCESTON

ON FRIDAY, 28 APRIL 2017, AT 3.44 PM

Copyright in the High Court of Australia

MR A.G. MELICK, SC:   If it please the Court, I appear with MR R.J. BROOMHALL for the applicant.  (instructed by Pagett & Associates)

MR J.P. RANSOM:   If it please the Court, I appear for the respondent, the Director of Public Prosecutions.  (instructed by Director of Public Prosecutions (Tas))

HIS HONOUR:   Yes, Mr Melick.

MR MELICK:   Thank you, your Honour.  This is an urgent application for an application for an injunction to stay or prevent the release of the contents of statutory declarations made by the applicant because if they become known to one of his co‑accused, namely, Mr Bechara, there is a very real risk of serious injury or death to the applicant. 

Your Honour, the brief facts are that the applicant and Mr Bechara were arrested in company with each other on 5 September 2013.  Shortly thereafter, the applicant, who had no criminal convictions at the time, as opposed to Mr Bechara who had numerous, including one for attempted murder, was approached by the police with a view to providing information - the Tasmania Police and also police from the New South Wales Middle Eastern Organised Crime squad.

Discussions were had between the police and counsel for Mr Farhat – in fact it was me at the time – and it was agreed that Mr Farhat would provide information to the police on condition, among other things, that the fact that he had spoken to the police and the information provided would not be made available to his co‑accused. 

He provided the information to the police in relation to his co‑accused, Mr Bechara, and Mr Ivey, who has subsequently become a co‑accused.  The information was provided by statutory declaration on 7 October 2013, which was taken without the knowledge of Mr Farhat’s representatives.  They were of the view at that stage it would be merely information in the form of a statement.

Mr Farhat started to receive death threats and they were set out in an affidavit when he applied for bail.  The affidavit was dated 19 September 2013.  It appears at pages 19 to 21 of your Honour’s papers.  In the meantime, on 21 November 2013, the police prepared a separate statutory declaration removing all references to Mr Bechara because they were aware of Mr Farhat’s concerns in relation to Mr Bechara, but that statutory declaration was never signed.

On 31 October last year, 2016, the DPP made Mr Farhat’s legal representatives aware that they had these statutory declarations and intended to disclose them to the defence.  Disclosure was immediately objected to.  There was an agreement by the DPP to stay until legal permissions could be made in relation to it and the objections were taken on the basis that there was an agreement those documents remain confidential.  There were concerns about the applicant’s safety and, in general, the principles in Marks v Beyfus and the following cases in relation to public interest immunity.

HIS HONOUR:   Mr Melick, is the applicant still in custody?

MR MELICK:   Yes, your Honour, the applicant is in custody.

HIS HONOUR:   Yes, thank you.

MR MELICK:   There were several interlocutory proceedings and his Honour Justice Pearce, who was the trial judge in this matter, eventually heard the application on 6 February this year.  He provided a decision on 6 April this year rejecting the applicant’s claim to prevent the release of the documents.  The facts are set out in his Honour’s judgment.  Your Honour, have you had a chance to read his Honour’s judgment ‑ ‑ ‑

HIS HONOUR:   Yes, I have briefly, thank you.

MR MELICK:   Right.  There is no dispute of the facts in that judgment with the exception that the second statutory declaration was not signed and the agreement was he provide information, not a statutory declaration, but neither of those is significant.  On 19 April, there was an attempt made to file an application to set aside his Honour Justice Pearce’s decision and the Supreme Court of Tasmania registry, on direction, refused to accept the application on the basis that there was no jurisdiction to hear an appeal from an interlocutory proceeding in a criminal matter.

HIS HONOUR:   That is probably right, is it not, in Tasmania?

MR MELICK:   We disagree, with respect, your Honour.  We say there is an inherent jurisdiction in the court, in the Full Court, not – the Court of Criminal Appeal cannot deal with it.  It is purely a creature of statute and there is no right of appeal to the Court of Criminal Appeal.  That is why the application was filed in the Full Court – or attempted to be filed in the Full Court, not in the Court of Criminal Appeal.

HIS HONOUR:   What would be the right of appeal to the Full Court?

MR MELICK:   There was an equitable right in relation to criminal jurisdiction – we set out, your Honour, at the submissions we have made attached to the special ‑ ‑ ‑

HIS HONOUR:   No, I understand the basis of your argument for injunction in the equitable jurisdiction to restrain orders made in the criminal jurisdiction.  I am asking you about what right of appeal there would be to the Full Court?

MR MELICK:   Sorry, your Honour.  We take the view there is probably not a right of appeal but there is a right for prerogative relief, or restraining relief and that is what we sought.  We did not actually try to file an appeal.  We actually asked for a – we filed an application to stay the orders releasing the document or, in effect, an injunction.

HIS HONOUR:   So all we are talking about is your application for injunction in the equitable jurisdiction to restrain effect being given to Justice Pearce’s orders?

MR MELICK:   Exactly, your Honour.

HIS HONOUR:   Yes, thank you.

MR MELICK:   Your Honour, the Chief Justice then held a directions hearing on 24 April in the criminal jurisdictions which were held in open court and created an additional problem because not only are the co‑accused aware that Mr Farhat has made a statement, they are also aware that there are fairly strenuous objections to the contents of the statement being provided.  His Honour then directed that an application be filed, which was filed on 26 April and his Honour heard that application on that day.

His Honour held, among other things, that on the balance of convenience, we had little chance of success should the court actually have jurisdiction to entertain the application and therefore dismissed the application.  His Honour’s order appears – the application was – the main order was the application for a stay be refused.

I should mention at this stage, your Honour, this trial is due to start on 8 May this year and there are several counsel involved.  It is down, I think, for three weeks.  Mr Ransom can correct me if I am wrong about that.  We note that we have been attempting since 1 November to prevent these statements being provided and any of the delays cannot be laid at our feet.  Your Honour, we say there are real issues to be tried in relation to this matter as set out in the notice.  The first is whether or not ‑ ‑ ‑

HIS HONOUR:   Mr Melick, just before you proceed, I am sorry, I notice that Chief Justice Blow’s order was that a stay be refused, but your application was not to him for stay but rather for injunction.  Is one to read the order “stay refused” as, in effect, “application for injunction refused” or did something happen to convert it into an application for stay?

MR MELICK:   No, your Honour, it should be read that way.

HIS HONOUR:   Yes, thank you.

MR MELICK:   There was quite a bit of discussion about what form the order should take between us and the Supreme Court this morning.  Your Honour, there are several matters we say raise issues of public importance.  One is whether interlocutory relief is available in a criminal jurisdiction for orders made and we would say apart from the law which we have cited this is a classic case where there should be provision for same because to leave it till the end of the criminal trial would make such an application otiose and the damage has already been done.

Secondly, there were questions as to whether or not public interest immunity can attach to the contents of documents.  I, unfortunately, on the 26th was not able to direct his Honour to the case law which I have now directed your Honour to in the application, which makes it quite clear that public interest immunity can be directed to the contents of a document and there is a very real question ‑ ‑ ‑

HIS HONOUR:   Justice Pearce appears to have proceeded on the assumption – or at least yes, on the assumption that it could apply to contents and dealt with it accordingly.

MR MELICK:   Yes, your Honour, that is conceded.  However, we say that Justice Pearce proceeded on the basis that intentional harm to the maker of a statement was not a relevant or at least a very significant factor to be taken into account.

HIS HONOUR:   I saw that but I also saw Chief Justice Blow’s observation on that, with which I was rather inclined to agree.  Read in context, when Justice Pearce referred to it as not being critical I tend to think, with respect, that Chief Justice Blow was right in saying that by “critical” Justice Pearce meant only that it was not determinative in itself of the point.  Do you disagree?

MR MELICK:   I disagree, your Honour, with respect.  We say in a matter such as this when one balances the very real risk of death – serious injury or death to the applicant, bearing in mind he was actually assaulted in the gaol on the morning of the application and the words used were “Keep your mouth shut or you’re dead” and he was wearing – there was a black eye obvious on the applicant when he gave evidence – sorry, when he was present in court.

HIS HONOUR:   Is the applicant in isolation?

MR MELICK:   He was not then.  He had actually removed himself to a safe – what he thought was a safer part of the prison but that has not worked and as to what is happening to him now I do not know.  Both his Honours seemed to take the view that because the defence were aware that he had made a statement that the damage had already been done.

HIS HONOUR:   Yes.

MR MELICK:   But of course they are not aware of the detail of the statement, which is quite significant and in fact is basically the Crown case in this matter.  The other matter we say is of significance is that the ‑ ‑ ‑

HIS HONOUR:   Sorry, before you go on, when you say it is the Crown case, is one to understand that it is consistent with the other evidence of which the Crown has given notice to the accused?

MR MELICK:   Exactly, your Honour.

HIS HONOUR:   Then wherein lies the added risk?

MR MELICK:   Because his co‑accused do not know that he has given all this detailed information to the police about the activities, and it also involves information which is not directly relevant to this case but information of other activities carried out by Mr Bechara.  Your Honour, as has been made clear in some of the case law, and I refer particularly to comments of Justice Brooking in Dawson’s Case ‑ ‑ ‑

HIS HONOUR:   It is a balancing exercise, is it not, interests of justice against the interests of the individual?

MR MELICK:   Yes, your Honour, but this is a case where it is more than that.  It is the interests of justice.  When one considers what will happen if people become aware that if they make an agreement with Tasmania Police it will not be adhered to.  There was a clear agreement between the applicant and Tasmania Police that the contents of the statement - and the fact he had made the statement and the contents would not be made available to his co‑accused.  Unfortunately, it became known to the co‑accused that a statement had been made and I understand that was not from the DPP but the police. 

Secondly, when one looks at the balancing exercise, it is hard to visualise what use the co‑accused could make of the statement bearing in mind it is inadmissible and all it does is outline the Crown case.  At the very best it could be used, if the applicant got into court – sorry, gave sworn evidence which was inconsistent with the material he provided, if that was the case, the statement would then clearly become disclosable and that would be a risk he would take if he took that course.

HIS HONOUR:   At paragraph 20 of Justice Pearce’s reasons for judgment he sets out what he contemplates could be the forensic advantage to be derived by the co‑accused from knowledge of the contents.  Is that a fair assessment, as his Honour sets it out?

MR MELICK:   No.  Well, with respect, your Honour, no.  We just do not understand – I do not understand and nothing has been identified to me as to how it would assist in the cross‑examination of other prosecution witnesses.  Information is given – sorry, your Honour.

HIS HONOUR:   I was about to say, presumably if another prosecution witness were to give a version of events which was more favourable to that witness than were the contents of the affidavit it would be a sound source of cross‑examination, at least to discredit that witness.

MR MELICK:   From my memory there is nothing in the statement which refers to prosecution witnesses, merely co‑accused.

HIS HONOUR:   That is the point, is it not?

MR MELICK:   Well, if that is the case, it could then be disclosed if they attempted to do that.  See what we have, your Honour, is a very real risk to the applicant and as Justice Brooking said at paragraph 25 in Dawson’s Case where it says “His Honour at 90 concluded the test should be whether there is good reason to think that disclosure in the forms intended may be of substantial assistance to the defendant in answering the case against him” – in this case we say it is a very speculative, possible assistance to the defence and if the applicant does not get in the box there is very little use, we say, that can be made of the statement. 

Against that there was a consistent series of threats from an individual who has used words such as “bullet in the head”, “you and your family are dead” – this is an individual who has a conviction for attempted murder.  As well there are other offences of violence.  When one balances that against the speculative nature of the use that could be made of the statement at this stage, because one does not know what is going to happen during the trial, we would say that both their Honours have erred in the balancing exercise.

What you have is an individual who entered upon an agreement with police assuming that he would be protected from disclosure and to date the fact that he has made the statements being made aware, but he is still at this stage protective of disclosure and we say there is a very real case to be heard in relation to the balancing exercise.  Your Honour, I cannot put it any more highly than that, subject to any questions you have.

HIS HONOUR:   No, thank you very much.  Mr Ransom.

MR RANSOM:   If it please, your Honour, I do not disagree with the chronology as presented by my learned friend, Mr Melick.  The application is referable to a trial due to proceed on 8 May in the Supreme Court of Tasmania sitting in Launceston.  That trial has been deemed to commence, and that is common ground between the parties, and that is because Mr Farhat was called upon to plead and that comes from section 351(6) of the Criminal Code (Tas).

Two pre‑trial matters were then listed to be heard in accordance with section 361A of the Criminal Code which starts with somebody being required to be called upon to plead, which has occurred.  The first was a matter relating to voice identification and that did not – or does not have any great weight here.  The second is the matter we are dealing with now.

The net result is that the State has been ordered to disclose the document – and if I can take your Honour to Justice Pearce’s decision and I note your Honour has read that – the very last lines on page 43 indicate that we are subject to that order.

HIS HONOUR:   Yes.

MR RANSOM:   In relation to what then occurred, the matter proceeded, as you have heard, before his Honour Chief Justice Blow.  His decision is at page 103 and it proceeds – in the first paragraph, line 6, he says “Assuming that there is in fact a jurisdiction” – in the respondent’s submission what has basically occurred is that we have a duty to disclose the document.  Whilst the document was not in the Crown papers prepared by the DPP it was in a police file and read by counsel with carriage of the matter, namely myself.  So that duty arose and the situation now is, for the reasons outlined by Justice Pearce, in the interests of justice it is necessary for the other accused to have that statement.

In my submission it is not an unusual situation that should ground a special leave application that one accused is threatening another and that is what we have and we have, in effect, an attempt to cut across the criminal jurisdiction by way of equitable relief.  That, in my submission, breaches

the well‑known rule of an appeal not fragmenting criminal proceedings and I ‑ ‑ ‑

HIS HONOUR:   Mr Ransom, just a moment please – I am sorry to interrupt you.  We have some trouble with the transmission from both you and from Hobart, I think.  Bear with us.  We may have lost Hobart.  Mr Ransom, if you can still hear me, I might just stand down for a couple of moments while the Court officers do their best to re‑establish the links.

MR RANSOM:   I can hear, your Honour, thank you.

AT 4.03 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.05 PM:

HIS HONOUR:   I am pleased to see you are back, Mr Ransom.

MR RANSOM:   If it please, your Honour, I got to the point where I was making the submission that this application, in effect, cuts across criminal proceedings and breaches the rule that an appeal should not fragment criminal proceedings.  That is well known, your Honour, and there is obviously authority for that proposition.  In my submission, this matter does not exhibit anything that would ground a special leave application.  It is simply not an unusual situation where one accused is threatening another prior to a criminal trial starting.

HIS HONOUR:   Mr Ransom, what do you say about Mr Melick’s point that the trial judge, Justice Pearce, applied the wrong test in the determination of the public interest immunity claim by not considering whether there was substantial – whether the disclosure of the contents of the document to co‑accused would be of substantial assistance to them compared to the risk of danger to the applicant?

MR RANSOM:   Your Honour, we say he did take it into account.  What he said was it was not critical as opposed to not taking it into account at all.  Those are my submissions, your Honour.

HIS HONOUR:   Yes, thank you, Mr Ransom.  Mr Melick, is there anything in reply?

MR MELICK:   Just two matters, your Honour.  On the substantial point, because there is the information at paragraph 19 – page 3 of the papers at 19 of Mr Broomhall’s affidavit about being informed that one of Mr Bechara’s associates who visited Tasmania was murdered upon his return to the mainland, what we are dealing with here are Middle Eastern Organised Crime gangs who are well known to be violent, very violent people.

Secondly, I concede it is unfortunate that the trial has started – is due to start on 8 May but we have been trying since 1 November to have these matters excluded and approaching the eve of the trial is not our fault.  Thirdly, that, yes, there are many cases saying it is inappropriate to seek to set aside interlocutory orders in criminal proceedings, although I am aware of but cannot find a case in Victoria where even on an evidentiary matter because it was so significant it was actually – it was set aside in the course of criminal proceedings. 

But in this case, of course, not to set aside becomes otiose because the damage has already been done.  I can only reiterate there is a very substantial risk to the applicant and no identified substantial benefit to the co‑accused on the disclosure of the document.  If it please the Court.

HIS HONOUR:   Thank you.

This is an application pursuant to rule 8.07.2 of the High Court Rules 2004 (Cth) for a stay pending the determination of an application for special leave to appeal from orders of his Honour Chief Justice Blow of the Supreme Court of Tasmania made on 26 April 2017, in terms refusing a stay but with the apparent intended effect of declining to grant an interlocutory injunction to restrain the Director of Public Prosecutions from providing the applicant’s co‑accused with the contents of a statutory declaration made by the applicant on 7 October 2013.

The applicant and his co‑accuseds, Shane Ivey and Mickael Bechara, have been committed to stand trial in the Supreme Court of Tasmania on one Giretti count of trafficking in a controlled substance between 1 March 2013 and 5 September 2013 and also on counts of trafficking in firearms and dealing with the proceeds of crime.  The trial is listed to commence on 8 May 2017 and is expected to run for approximately three weeks, although by reason of the fact that the applicant has already been arraigned and pleaded in advance of interlocutory procedures the trial is deemed to have commenced.

In the course of preparation for trial, counsel for the Crown became aware of the existence of the statutory declaration made on 7 October 2013 and subsequently informed defence counsel of the existence of the statement.  Thereafter, counsel for each of the co‑accused applied to Justice Pearce for directions that the contents of the statement be disclosed to them. 

The applicant objected to disclosure on the basis that he had made the statutory declaration upon receiving what he regarded as binding assurances from the police, that the existence of the statement would not be disclosed and also upon the basis that as a result of having made the statement in response to those undertakings, the contents of the statement would be protected by public interest immunity. 

Over the opposition of counsel for the applicant, Justice Pearce nonetheless acceded to the co‑accuseds’ applications for disclosure.  In comprehensive reasons published on 6 April 2017, his Honour explained that he considered that, although the declaration had been made in confidence and on the basis of assurances that it would not be disclosed, justice required that the contents of the statement be disclosed because there may be ways in which the contents of the declaration would assist defence counsel in cross‑examination of prosecution witnesses and also, if any of the accused give evidence, would assist counsel for the co‑accused in cross‑examination of those witnesses.

In particular, his Honour stated that what the applicant had said in the declaration may assist the defence in the cross‑examination of prosecution witnesses and although it was unlikely that the declaration would be used to attack the Crown case, it was difficult for his Honour to judge that to be so at this stage of the proceedings.  It was also possible that the contents of the declaration would affect the way cross‑examination of police witnesses, for example, might be conducted by counsel for an accused so as to limit the prospect of unfavourable evidence being inadvertently adduced in the presence of the jury.  Moreover, as his Honour observed, the contents of the declaration are also relevant in other ways.  As his Honour put it:

“At this stage it cannot be determined whether [the applicant] or any other accused will elect to give evidence, or call witnesses, in his or her defence.  [The applicant] describes facts which directly concern the Crown case against the accused charged with trafficking in drugs, as well as each other count on the indictment.  In the event that an accused elects to give evidence at the trial, the content of the declaration is fertile material for cross‑examination and might give counsel for the Crown a forensic advantage.  The information in the declaration may have led to a line of inquiry the result of which may have been the obtaining of other evidence which may be used to cross‑examine an accused.  In that way, disclosure may affect whether an accused elects to give or adduce evidence.  In the event that there is dispute between the co‑accused about the nature of their respective roles, the declaration is directly relevant.  The contents of the declaration may, in some way that I cannot determine, inform an accused of a matter which may assist his or her case.  The contents of the statement may conceivably influence the way in which counsel for co‑accused cross‑examine other prosecution witnesses.”

Turning then to the claim for public interest immunity, Justice Pearce engaged in a detailed exercise of balancing the public interest in favour of disclosure against the public interest in preventing disclosure because of fears that one of the applicant’s co‑accuseds is a dangerous criminal and likely to visit vengeance on the applicant were he to learn of the contents of the document. 

His Honour concluded that he was not satisfied that disclosure of the contents would sufficiently add to the risk, which already exists, of danger to the applicant to outweigh the factors in favour of disclosure.  His Honour ordered accordingly that the contents be disclosed, although the respondent undertook not to disclose the statutory declaration for 14 days to allow the applicant time to apply for an interlocutory injunction in the equitable jurisdiction of the court to restrain disclosure. 

That application was made promptly, but on 26 April 2017 his Honour Chief Justice Blow refused the application.  In ex tempore reasons, his Honour concluded that it was not appropriate to grant the relief sought because the applicant’s chances of success in obtaining final equitable relief were “very weak”.  The interests of justice in disclosure of the contents of the document to the co‑accused outweighed the risks of injury to the applicant and thus the balance of convenience lay against the grant of injunction.  The applicant’s criticisms of Justice Pearce’s consideration of the claim for public interest immunity were, upon analysis, evidently without relevant substance.

The application for special leave to appeal from Chief Justice Blow’s orders is, in effect, put on the same basis as the considerations that were urged before the Chief Justice.  It is contended that Justice Pearce erred by deciding the public interest immunity claim on the basis of speculation as to possible advantages to the co‑accused of disclosure of the contents of the document to them, rather than in accordance with correct principle upon the basis of whether it was established that disclosure would provide the co‑accused with significant advantages.  Senior counsel for the applicant submitted that the way in which Chief Justice Blow approached the question was plainly in error and that having regard to the evidence of risk of danger to the applicant if the matter were approached according to correct principle the result would very likely be different.

As was observed in Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd (1988) 165 CLR 452, in an ordinary case it would be most inappropriate for this Court to entertain an appeal from the refusal of interlocutory relief by a trial court. But at the same time, as was also stated in Paringa, it is unsatisfactory to leave to a judge whose order is under review the exercise of appellate discretion of granting or withholding the kind of interlocutory relief which is required to maintain the status quo ante pending appeal, and particularly is that so where the effect of declining to accord such relief is said practically to preclude the granting of the substantive relief claimed in the proceeding or to render the appeal nugatory.

Whether such relief should be granted, however, depends on a number of factors.  They include, although they are not necessarily limited to, whether there is a substantial prospect of special leave to appeal being granted, whether the applicant has done all that he could to get a stay from the court below, whether a grant of stay would cause prejudice to other parties and where the balance of convenience may lie.

Putting aside for the moment the question of whether there is a substantial prospect of special leave to appeal being granted, I accept that the applicant has done as much as he could in seeking a stay from the court below.  The most that Chief Justice Blow was prepared to do was grant a very short interim stay to allow this application to be made. 

The question of prejudice to other parties and the balance of convenience is more finely poised.  There would be prejudice to other parties in the sense that the trial is listed to begin on 8 May 2017 and if a stay were ordered it must be assumed that that date would have to be vacated.  It being now so very close to the trial it is inevitable that a great deal of preparation has been invested in it, not only by counsel, but also by those who are required to give evidence and doubtless have been preparing themselves for the occasion.  On the other hand, that sort of prejudice, although significant, is not irreparable and if other factors were sufficiently pressing such prejudice would have to yield to them.

With respect to the balance of convenience, I accept that the applicant fears the consequences of disclosure of the documents, and it is not suggested by the Crown that the evidence that he has adduced in support of the existence of that fear is in any way excessive, but at the same time there are powerful considerations of justice in favour of disclosure. 

But as against that, as Chief Justice Blow observed, a lack of disclosure could result in a miscarriage of justice and thus an aborted trial and, with respect, there appears to be much in what his Honour said about it being difficult to see that disclosure of the contents of the document - given knowledge of the existence of the document has long been available to the co‑accused, including Mr Bechara ‑ would add significantly to the risk of retaliation to which the applicant has already been subject for some years.

Ultimately, however, what to my mind is determinative is that I do not consider that there is a substantial prospect of the applicant succeeding on his application for special leave.  As at present advised it appears to me that Justice Pearce took into account all that needed to be considered and reached a conclusion to which it was open to come, and, like Chief Justice Blow, I am inclined to think that the contention that Justice Pearce’s approach to the question of public interest immunity was incorrect is, in the end, without relevant significance.

Similarly, as at present advised, it appears to me that Chief Justice Blow took into account all that was relevant upon the application for interlocutory injunction and ultimately came to a conclusion which was within the ambit of the sound exercise of discretion. 

That is not to say that the application for special leave is wholly without any prospect of success.  But given my assessment of its prospects of success on the basis of the material available to me at present, I am not disposed to grant the stay which is sought.  Accordingly, the application is dismissed.

Gentlemen, are there any further orders or directions required?

MR RANSOM:   We seek an order for costs, if it please.

HIS HONOUR:   Mr Melick, do you oppose that?

MR MELICK:   No, your Honour.

HIS HONOUR:   Thank you.  The application is refused with costs.  I am grateful to counsel for their assistance.

Adjourn sine die.

AT 4.30 PM THE MATTER WAS CONCLUDED