Farmer v AOC Australia Pty Ltd
[2002] WASCA 340
•11 DECEMBER 2002
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: FARMER -v- AOC AUSTRALIA PTY LTD [2002] WASCA 340
CORAM: STEYTLER J
MILLER J
SHEPPARD AUJ
HEARD: 1 OCTOBER 2002
DELIVERED : 11 DECEMBER 2002
FILE NO/S: FUL 185 of 2001
BETWEEN: DONALD WILLIAM FARMER
Appellant
AND
AOC AUSTRALIA PTY LTD
Respondent
Catchwords:
Workers' compensation - Dispute as to degree of disability - Decision of Director of Conciliation and Review to refer dispute to review officer - Medical evidence required to support medical opinion as to relevant level of disability - Medical evidence insufficient - Effect on jurisdiction of Director and review officer - Validity of determination by review officer - Consideration of ReMonger; Ex parte Dutch and Re Monger; Ex parte United Construction Pty Ltd
Legislation:
Workers' Compensation and Rehabilitation Act 1981, s 84ZN(2), s 93D(2), s 93D(5), s 93D(6), s 93D(7), s 93D(10), s 93E(3), s 93E(4)
Result:
Respondent given leave to rely on its notice of contention
Jurisdictional point upheld
Decision of review officer void
Category: B
Representation:
Counsel:
Appellant: Mr B L Nugawela
Respondent: Mr D W Williams
Solicitors:
Appellant: Slater & Gordon
Respondent: McAuliffe Williams & Partners
Case(s) referred to in judgment(s):
Australian Heritage Commission v Mt Isa Mines Ltd (1997) 187 CLR 297
Chief Adjudication Officer v Foster [1993] AC 754
Clisdell v Commissioner of Police (1993) 31 NSWLR 555
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Director of Public Prosecutions South Australia v B (1998) 194 CLR 566
Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808
Kuligowski v Metrobus [2002] WASCA 170
R v Alley; Ex parte NSW Plumbers & Gasfitters Employees' Union (1981) 153 CLR 376
Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343
Re Monger; Ex parte Dutch (2001) 25 WAR 96
Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253
Schneeberger v TAC [2000] VCAT 1863
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55
Case(s) also cited:
Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Australian Heritage Commission v Mt Isa Mines Ltd (1995) 60 FCR 456
Brown v Metro Meat International Ltd [2000] WASCA 123
Clough Resources Pty Ltd v Taylor, unreported; CM-151/01; 24 April 2002
Garcia v National Australia Bank Ltd (1998) 194 CLR 395
Hood v Royal Perth Hospital, unreported; FCt SCt of WA; Library No 970658; 5 December 1997
Jones v Bartlett [2000] HCA 56
Karalis v Australian Community Pharmacy (1998) 90 FCR 473
Kioa v West (1985) 159 CLR 550
Kotua v Leighton Contractors Pty Ltd, unreported; CM-45/02; 17 October 2002
Mayne Nickless Ltd trading as Wards Express v Mayne, unreported; FCt SCt of WA; Library No 960736; 19 December 1996
Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462
Re Croser; Ex parte Rutherford (2001) 25 WAR 170
Re Monger; Ex parte Cargo Enterprises Pty Ltd [2001] WASC 19
Re Monger; Ex parte Nowicki [2000] WASC 280
Re Monger; Ex parte Shire of Wyndham-East Kimberley [2002] WASC 165
Re Monger; Ex parte TNT Australia Pty Ltd [2002] WASCA 223
Re Monger; Ex parte Western Power Corporation [2000] WASC 271
Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129
Re Tyler; Ex parte Foley (1994) 181 CLR 18
Smith v Fruin, unreported; CM(WA)-117/00; 1 August 2001
Sullivan v Department of Transport (1978) 20 ALR 323
Summit Homes v Lucev (1996) 16 WAR 566
Tambourie Nominees Pty Ltd v Blum, unreported; CM(WA)-68/01; 22 October 2001
Thomas v Arimco Mining Pty Ltd (2000) 24 SR (WA) 142
Thorp v City of Wanneroo, unreported; CM(WA)-49/00; 31 July 2000
United Construction Pty Ltd v Santos, unreported; CM(WA)-5/01; 1 November 2001
Warcon v Leighton Contractors, unreported; CM-7/99; 1 June 1999
STEYTLER J: On 22 May 1999 the appellant was injured in the course of his employment with the respondent. His physical injuries were severe, causing him to develop a psychological condition involving depression and insomnia. He claimed, and was paid, workers' compensation in respect of his injuries.
In order to preserve his right to take action against the respondent at common law for damages arising out of his injuries, the appellant, on 6 December 1999, lodged what is colloquially referred to as a "Form 22" with the Director of Conciliation and Review at the Workers' Compensation and Rehabilitation Commission. He needed to lodge that form because of the provisions of Div 2 of the Workers' Compensation and Rehabilitation Act 1981 ("the Act"), which impose constraints on awards of common law damages. Sections 93E(3) and 93E(4) of the Act provide that:
"(3)Damages can only be awarded if ¾
(a)it is agreed or determined that the degree of disability is not less than 30% and that agreement or determination is recorded in accordance with the regulations; or
(b)the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.
(4)For the purposes of subsection (3)(b) the worker has a significant disability if it is agreed or determined that the degree of disability is not less than 16% and that agreement or determination is recorded in accordance with the regulations."
By s 93D(5), if the worker and the employer cannot agree on whether the worker's degree of disability (which must be assessed in accordance with s 93D(2)) is not less than the relevant level (a degree of disability of either 16 per cent or 30 per cent, as the case may be), the worker may, subject to s 93D(6), refer the question to the Director. A referral of that kind is made by means of a Form 22. Here, the worker and the employer could not reach agreement on the relevant level of disability and so it was that the appellant lodged his Form 22.
I have said that the worker's right to lodge a Form 22 is subject to s 93D(6). That section provides that:
"(6)A question can only be referred under subsection (5) if the worker produces to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of disability is not less than the relevant level."
It is common cause between the parties that, at the time of lodging his Form 22, the appellant did not produce to the Director medical evidence from a medical practitioner indicating that, in the medical practitioner's opinion, the degree of disability was not less than the relevant level. The evidence which was produced to the Director fell short of what was required. It comprised a report, dated 29 November 1999, from a general practitioner, Dr Michael Walsh, and a report, dated 26 November 1999, from Mr Dennis McCarthy, a psychologist. Dr Walsh's report said only that the appellant's "back pain, right leg pain and reactive depression" would, in his opinion, "cause a disability not less than 30 per cent". He did not say that the disability would be permanent, as it would have to be if it was to meet either of the relevant levels, as assessed in accordance with s 93D(2) (see the provisions of that section, read with s 25 of the Act). Nor did it explain how or why Dr Walsh arrived at that opinion or offer any "material of a medical kind which … [was] logically capable of supporting the opinion" (as to which see Re Monger; Ex parte Dutch (2001) 25 WAR 96 at [44], per Malcolm CJ, with whom Wallwork J was in agreement, and at [115], per Owen J). Mr McCarthy was not a medical practitioner as defined in s 5 of the Act.
Notwithstanding that the required evidence was not produced to him, the Director accepted the appellant's referral and acted on it, by notifying the respondent of its receipt (pursuant to s 93D(7)) and, when the respondent notified the Director (on 29 December 1999) that it considered that the degree of disability was less than the relevant level, by referring the resulting dispute to a review officer for resolution under the provisions of Pt IIIA of the Act (see s 93D(10) of the Act).
By the time the review officer came to hear the matter, a number of additional medical reports had been obtained by the appellant. However, for reasons which it is unnecessary to recount, the review officer found that these reports, too, failed to comply with the requirements of s 93D(6) and dismissed the appellant's referral.
The appellant appealed against that decision on two grounds. The first of these was that the review officer had denied the appellant natural justice by not allowing him to call additional evidence from medical practitioners. The second was that the review officer erred in law in not granting an adjournment to admit further evidence. The appellant did not challenge the review officer's conclusion that the evidence which had been adduced failed to comply with the requirements of s 93D(6). The appeal was dismissed by the Compensation Magistrate who heard it pursuant to the provisions of s 84ZN(2) of the Act. By leave granted on 7 December 2001, the appellant appealed to this Court against the decision of the Compensation Magistrate, contending that the Magistrate had erred in law in concluding that the review officer did not deny the appellant natural justice and in failing to correct what was said to be the review officer's error in failing to grant an adjournment.
When the appeal came on for hearing, the respondent sought leave to raise, for the first time, a contention that, because the requirement of s 93D(6) had not been satisfied, the Director had had no jurisdiction to refer the question of the level of the appellant's degree of disability to a review officer for hearing and the review officer had lacked any jurisdiction to decide that question. Counsel for the respondent explained his delay in raising the point in the following way. The review officer had said, in par 25 of his reasons for decision, that he concurred with the decision of another review officer, given in another matter, who had held that it was not open to him to review the decision of the Director to refer a dispute to him. Counsel for the appellant had assumed that the review officer was correct in that conclusion. However, on 12 September 2002, less than three weeks before this appeal was due to be heard, a Full Court consisting of five judges of this Court delivered judgment in the case of Re Monger; Ex parte United Construction Pty Ltd [2002] WASCA 253. There the Court had to deal with a situation in which a medical report, which had been submitted together with a Form 22, had failed to comply with the requirements of s 93D(6). Anderson J (with whom Malcolm CJ, Wallwork and Templeman JJ were in agreement) said, at [44], that, on the authority of Dutch, above, the decision of the Director to refer a dispute as to the existence of the relevant level of disability was, in that circumstance, beyond jurisdiction and incapable of conferring jurisdiction on the review officer. Fitzgerald AJ (with whom Malcolm CJ, Wallwork and Templeman JJ were also in agreement) reached a similar conclusion (at [70]). Counsel for the respondent said that, alerted by these judgments to the jurisdictional issue, he considered that he should raise the point.
The parties agreed that the jurisdictional point should be addressed by this Court as a preliminary issue. By agreement, a timetable was set for the filing of written submissions in that respect, encompassing the question whether the respondent should be permitted to raise the point at this late stage. Those submissions have now been filed.
As to the question of lateness, it seems to me that, once the issue of jurisdiction is raised, the Court is obliged to take cognisance of it, whatever may be the explanation for the delay in raising the point (and I might mention, in this respect, that the issue seems to me to have been squarely raised in Dutch, many months before the decision in United Construction). If the review officer never had jurisdiction to embark upon the review because there never was any valid referral under s 93D(5), and hence no valid referral to the review officer, then it would be pointless for this Court to hear an appeal as regards the question whether or not the matter should be sent back to the review officer for further hearing. His decision would in that event be void and he would have no jurisdiction to reconsider it. This Court, once apprised of the problem, cannot proceed upon the assumption that jurisdiction exists when it does not, simply because the point was not raised any earlier.
Nor, contrary to a submission advanced on behalf of the appellant, is it right to say that the employer, in not taking the point before now, has submitted to the review officer's jurisdiction. Counsel for the appellant relied, in that respect, on the authority of Kuligowski v Metrobus [2002] WASCA 170, in which comments were made to the effect that the parties had acquiesced in a procedure which had been adopted by the review officer in circumstances in which it was unclear what section of the Act had been relied upon (see [39] and [187]). However, as I pointed out in that case (at [187]), no real doubt was there cast upon the proposition that the review officer had the jurisdiction and power to determine a dispute of the kind which had arisen, the only live question having been that of whether he had followed the correct procedure. As was pointed out by McLure J in that case (at [284]), where jurisdiction does not exist, it cannot be conferred, in a case of that kind, by obtaining the consent of the parties. (See also Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808, 820 and 828). I am consequently satisfied that the Court should proceed to decide the jurisdictional issue.
I have already mentioned that the jurisdictional issue was squarely raised in Dutch. In that case, a referral pursuant to s 93D(5) of the Act was accompanied by a brief report from a medical practitioner which recorded the practitioner's belief that the respondent had a "degree of permanent disability in the whole body of 25%". The report did not describe the nature of the injuries or disabilities, other than in general terms referring to physical and psychological injury, and there was no statement of facts or reasons and no reference to the applicable statutory criteria. Notwithstanding this, the Director of Conciliation and Review forwarded the referral to the applicants pursuant to s 93D(7) of the Act, who notified the Director that they considered that the degree of disability was less than the relevant level. The Director thereafter referred the question for resolution pursuant to s 93D(10) of the Act. The applicant applied for a writ of certiorari quashing the decision of the Director to refer the question of the degree of disability for resolution, submitting that, because the requirements of s 93D(6) had not been satisfied, the decision of the Director to refer the question for resolution was beyond jurisdiction. That submission was upheld and the Director's decision was quashed.
Malcolm CJ, with whom Wallwork and Owen JJ were in agreement, said ([26]) that concessions had properly been made to the effect that the Director's task upon receipt of the referral was not purely administrative, because he must first be satisfied that the medical evidence does "indicate" that the degree of disability is not less than the requisite level. His task consequently involved "a limited adjudicative function in the sense that his decision is a precondition to exiting ([sic] presumably "exciting") the jurisdiction of the review officer".
Malcolm CJ also said (in a passage to which I have earlier referred) that, for the supporting material to satisfy the requirement for "medical evidence", it must comprise "material of a medical kind which is logically capable of supporting the opinion" ([44], and see also [115], per Owen J).
Malcolm CJ went on to say ([85]) that the decision by the Director to refer the matter to a review officer under s 93D(5) was wrong in law because the medical evidence in question had not satisfied the requirements under s 93D(6). It followed, his Honour said ([85]), that "the decision of the Director was beyond jurisdiction and incapable of conferring jurisdiction on the review officer". I have already mentioned that Wallwork and Owen JJ were in agreement with that conclusion. Similar conclusions were arrived at in respect of other respondents in that case.
In United Construction, the Full Court of this Court, comprising five judges, applied Dutch. As will be apparent, this was another case in which medical evidence lodged in support of a Form 22 did not comply with s 93D(6). Anderson J, with whom, as I have said, Malcolm CJ, Wallwork and Templeman JJ were in agreement, said ([21]) that no party had submitted that the Court should reconsider the correctness of the decision in Dutch and that the Court should therefore proceed upon the basis that the decision represented the law. He said ([23]) that, applying Dutch, it followed "that the Director obtained no power, on the lodgment of this Form 22, to proceed under the dispute resolution provisions to have the question of … [the worker's] degree of disability resolved". He went on to say (ibid) that a prompt application by the employer for appropriate prerogative relief with respect to the Director's decision to accept the referral and notify the employer under s 93D(7) "could not have been refused". He added ([30]) that, in accordance with Dutch, the Court was obliged to proceed on the basis that the Director had no jurisdiction to accept the worker's referral and that it followed that the Director's subsequent decisions, which were made as if he had received proper medical evidence with the referral, were liable to be quashed.
Anderson J also considered the question whether it was open to the review officer to consider the validity of the Director's referral and, hence, determine the question of his own jurisdiction, even though the point was not raised before him. He said, in that respect, ([41]), that there was a clear recognition in the Act that, although the review officer "may be less than fully qualified to do so", he or she was required to confront all questions of law arising in the review. He went on to say ([43] and [44]):
"In my opinion, a question concerning the validity of the Director's referral of the dispute to the review officer is a question of law within the meaning of s 84ZE(b). Furthermore, although the matter may not have been raised in argument before the review officer, and the review officer did not positively state that he had jurisdiction, the review officer must be taken to have formed the opinion that the matter was properly referred to him and that he did have jurisdiction to proceed with a review hearing and determine the dispute and, in that sense, he must be taken to have decided that he had the power to do so: Clisdell v Commissioner of Police (1993) 31 NSWLR 555 per Sheller JA at 560. Therefore, the appeal challenging the review officer's decision to proceed with the review involves a question of law within the meaning of s 84ZN(2). The compensation magistrate's decision to uphold the review officer's decision was itself a decision on a question of law within the meaning of s 84ZW and, hence, appealable by leave to this Court.
On the authority of ex parte Dutch, the decision of the Director to refer the dispute concerning the degree of … [the worker's] disability was beyond jurisdiction and incapable of conferring jurisdiction on the review officer. The appeal against the review officer's decision to resolve the dispute should have been allowed by the compensation magistrate and the decision of the magistrate not to allow the appeal was erroneous and the appeal to this court must be allowed."
Fitzgerald AJ, who was, as I have said, the fifth Judge in United Construction, reached a similar conclusion. He, too, noted that the worker had expressly declined to challenge the Court's decision in Dutch and that that decision established that the Director's referral to the review officer was beyond power because of the worker's non‑compliance with s 93D(6) ([67]). He went on to say that the worker, in that case, also accepted that the review officer's power to decide the degree of the worker's disability required a valid referral from the Director (as to which cf Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135).
Next, Fitzgerald AJ went on (ibid) to consider an argument, advanced on behalf of the worker, that the review officer's decision could not be set aside because his only function and power was to decide the question or dispute referred to him, namely, the degree of the worker's disability, and he had no power to decide whether that question or dispute had been validly referred, and that, although a question of law was involved, the Compensation Magistrate had no jurisdiction to allow the appeal against the decision of the review officer on the basis that it was beyond power. His Honour rejected that argument (and I have earlier mentioned that Malcolm CJ, Wallwork and Templeman JJ were also in agreement with him), saying ([68]) that statutory appeals against decisions involving error of law commonly extend to erroneous exercises of power. He referred, in that respect, by way of example, to Clisdell v Commissioner of Police (1993) 31 NSWLR 555 and Chief Adjudication Officer v Foster [1993] AC 754.
It seems to me that, when regard is had to these cases, the jurisdictional contention raised on behalf of the respondent must succeed. The point has been decided by a Full Court of this Court not much more than 12 months ago and then applied by another Court, this time comprising five judges, in only September of this year.
However, we were invited to depart from these decisions upon a number of different bases.
The first of these was that what was said by the Full Court in Dutch on the jurisdictional issue was obiter.
As will be apparent from what I have already said, the decision in that case turned upon the Court's opinion on the jurisdictional question. There is consequently no basis for this contention.
Next, it was submitted that the scheme of the Act established three distinct or discrete phases or processes described as "the streamlining process", "the dispute resolution process", and the "awarding of damages". The "streamlining process" was said to concern the Director's receipt of the worker's referral and to be governed only by s 93D(5), s93D(6) and s 93D(7). The "dispute resolution process" and the "awarding of damages" were said to be entirely separate, with the consequence that the only jurisdictional fact exciting the review officer's jurisdiction was said to be an employer's completion of its objection and notification of the same to the Director pursuant to s 93D(8), thereby creating a dispute which might ultimately be referred to a review officer for resolution.
This argument (and other, subsidiary, points, to which it is unnecessary to refer) seems to me to have been foreclosed by the decision in Dutch. While it may be true, as was submitted by counsel for the appellant, that no argument to this effect was put in Dutch, the fact remains that the argument, and other subsidiary arguments which were advanced in support of it, are inconsistent with what was decided in that case. I will not repeat what I have already said as to the reasoning of the respective members of the Court. They are also inconsistent with what was said in United Construction at [30], by Anderson J, with the agreement of Malcolm CJ, Wallwork and Templeman JJ. Moreover, nothing which has been put to us in this respect, on behalf of the appellant (and I intend no disrespect to his counsel in not setting out each of the subsidiary points made by him in support of the argument to which I have referred), leads me to conclude that it would be appropriate or proper for this Court to depart from what was decided, so very recently, in those two cases (see Kuligowski, above, [195] and [197] and Re Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343 at 354).
Next, we were referred to the decision of the High Court in Australian Heritage Commission v Mt Isa Mines Ltd (1997) 187 CLR 297 and to the judgment of a Vice President of the Victorian Civil and Administrative Tribunal in Schneeberger v TAC [2000] VCAT 1863.
In the first of those cases the High Court considered the provisions of s 22 of the Australian Heritage Commission Act 1975 (Cth). That section required the Australian Heritage Commission to keep a Register of the National Estate in which there should be listed places included in the national estate. Section 2 thereof provided that a place should not be entered in the Register otherwise than in accordance with s 23 or s 25(2) of the Act. Section 23(1) provided that, subject to that section and to s 25, "Where the Commission considers that a place that is not in the Register should be recorded as part of the national estate it shall enter that place in the Register." Section 25 empowered the Minister in certain circumstances to direct the Commission to enter a place in the Register. Section 4(1) provided that, for the purposes of the Act, "the national estate consists of those places, being components of the natural environment of Australia or the cultural environment of Australia, that have that aesthetic, historic, scientific or social significance or other special value for future generations as well as for the present community". A question arose whether the Commission could make an entry of any place within the meaning of the Act which it considered should be so recorded or whether only a particular place which, objectively, answered the description in s 4 of the Act could be so recorded. The trial Judge and a majority in the Full Court of the Federal Court held that the jurisdiction of the Commission was dependent upon the place which the Commission intended to include in the Register objectively answering the description in s 4 of the Act. However, the High Court held that a decision of the Commission to record a place in the Register was not open to judicial review under the Administrative Decisions (Judicial Review) Act (1977) (Cth) for want of jurisdictional fact.
In the second of those cases the Tribunal was required to consider, inter alia, s 46A(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) which reads as follows:
"(1)The Commission must determine the degree of impairment of each person who is injured as a result of a transport accident and appears to the Commission to be or to be likely to be entitled to an impairment benefit, as at -
(a)if the person is not a minor when the accident occurred -
(i)18 months after the accident; or
(ii)when the injury stabilises -
whichever last occurs; …"
Counsel for the applicant, in that case, submitted that, as the worker's injury had not stabilised as at the date of the determination of the degree of impairment by the Commission, the determination was a nullity, as was the review of that determination by the Administrative Appeals Tribunal. The respondent, on the other hand, submitted that, although s 46A was mandatory in its terms, that did not mean that the question of the stabilisation of the injury was required to be established as a jurisdictional fact. Judge Davey, after relying upon Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 63 ‑ 64 for the proposition that the "issue of jurisdictional fact turns, and turns only, on the proper construction of the statute …", concluded, after a review of the provisions before him, that the question of stabilisation was not intended by the legislature to be treated as a jurisdictional fact ([28] ‑ [33]).
However, each of those cases turned, as might be expected, on the statutory scheme there under consideration. The provisions of the Australian Heritage Commission Act and of the Victorian Civil and Administrative Tribunal Act are different to those which are required to be considered in this case. I have already mentioned that s 93D(6) of the Workers' Compensation and Rehabilitation Act expressly provides that a question "can only be referred" under subs (5) if the worker produces to the Director the required medical evidence. This provision, which is somewhat different from those considered in the two cases to which I have referred, was considered by the Full Court in Dutch in the context of the statutory scheme of which it is a part (see pages 104 and following, per Malcolm CJ, with whom Wallwork and Owen JJ were in agreement). There is nothing in Australian Heritage Commission or in Schneeberger which leads me to conclude that this Court should now declare that Dutch was clearly wrong in its construction of the different statutory scheme, bearing in mind that that case has, as I have said, very recently been applied by a Full Court of this Court comprising five judges.
I would accordingly give the respondent leave to rely upon its notice of contention and uphold the jurisdictional point. In my opinion, the review officer must be found to have lacked the jurisdiction to embark
upon the review and should not have done so (cf R v Alley; Ex parte NSW Plumbers & Gasfitters Employees' Union (1981) 153 CLR 376 at 382 and Director of Public Prosecutions South Australia v B (1998) 194 CLR 566 at 589). His decision was consequently void.
MILLER J: I have had the benefit of reading the reasons for judgment of Steytler J with which I agree and I have nothing to add.
SHEPPARD AUJ: I agree with the decision of Steytler J, to which I have nothing to add.
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