Giunti & Giunti

[1986] FamCA 15

In the marriage of GIUNTI, G. and GIUNTI, D.M.J.

(1986) FLC ¶91-759

Other publishers' citations: (1986) 11 FamLR 160

Full Court of the Family Court of Australia at Sydney.

Judgment delivered 18 July 1986.

Before: Fogarty, Murray and Nygh JJ.

Fogarty, Murray and Nygh JJ.: By notice of appeal dated 4 November 1985, the husband, G. Giunti, has appealed against certain orders which were made by Maxwell J. on 10 October 1985 after a trial before her on 1, 2 and 3 May and 25 and 26 July 1985.

The effect of those orders was as follows: By order no. 1 the husband was ordered to pay to the wife by way of property settlement under sec. 79 of the Family Law Act the sum of $221,000. By order no. 2 the wife was required upon the payment of that sum to her to transfer to the husband her interest in the former matrimonial home at Rose Bay and her shareholding and any other interest which she had in Giunti Construction Enterprises Pty. Ltd. Order no. 3 provided that in the event the sum was not so paid, the parties were to place the property on the market for sale and the net proceeds were to be divided between the parties in the proportions of 65 per cent to the wife and 35 per cent to the husband. Order no. 4 directed the husband to pay maintenance to the wife for the youngest child of the marriage, A, at the rate of $40 per week, together with certain school fees and expenses. By order no. 5 the wife's application for her own maintenance was ``stood over generally with liberty to restore such application to the list on 21 days' notice''. Order no. 6 dealt with the transfer to the wife of a Holden Commodore motor car. Order no. 7 directed that the child, A, be separately represented in proceedings between the parties relating to access by the husband to that child.

The parties married in New Caledonia on 3 January 1963. The husband was born in Italy on 4 June 1932, and the wife was born in New Caledonia on 5 October 1943. There were three children born of the marriage, namely L, born on 23 May 1964, G, born on 5 September 1965, and A, born on 14 April 1971. In June 1974 the parties and their children moved to Australia as permanent residents. The parties separated whilst still living in the matrimonial home in April 1983, but finally physically separated on 7 December 1983 when the wife and children left the matrimonial home. The parties have remained separate since that time. On 1 December 1983 the wife instituted proceedings for property and maintenance and it was those proceedings which her Honour heard.

Before we turn to the relevant financial matters dealt with in her honour's judgment and the challenges raised to those matters on the hearing of this appeal, it is convenient to deal firstly with grounds 1 to 5 of the appellant's amended notice of appeal. It is unnecessary to set out the details of those grounds. They formulate in various ways the same theme, namely, arising out of events which occurred on 25 July 1985, her Honour ought to have disqualified herself from continuing with the hearing. It was submitted that if these grounds were upheld, the proper order was to direct a new trial of this proceeding before another judge.

It is convenient to turn firstly to the events which occurred on that day. As we previously indicated, the proceedings had been heard before her Honour on 1, 2 and 3 May. They were then adjourned part-heard and were continued before her Honour on 25 July, as they in fact did. When the proceedings commenced on that morning an issue was raised on the husband's behalf about difficulties in relation to his access to the youngest child, A. Her Honour indicated that arrangements should be made for confidential counselling as soon as possible and, dependent upon the outcome of that, she would arrange for the access dispute to be heard as soon as practical and may make an order for the child to be separately represented. It was then agreed that the solicitors for the parties would make arrangements for counselling. In the meantime discussion ensued between her Honour and counsel about further affidavits which had been filed on the husband's behalf since 3 May. Her Honour indicated that she thought it desirable that the solicitors and the parties be present in Court whilst the affidavits were discussed, and her Honour adjourned the proceedings for a short time for that to occur.

Upon her Honour's return and after some further discussion about counselling and separate representation, counsel who appeared for the wife informed her Honour that it was alleged that during the adjournment and whilst the wife's solicitor was discussing the matter with a solicitor from the Australian Legal Aid Office, the husband had said to the wife's solicitor ``If you do, I will break your neck''. Counsel for the wife also informed her Honour that she personally had heard those words, and that she was instructed to seek that the husband be dealt with for contempt of court. Her Honour then asked the Legal Aid solicitor whether she had heard the words alleged and that solicitor informed her Honour that she had. Her Honour then summarised to the husband these circumstances and informed him that he was being charged with ``an act of contempt in the face of the Court''. She directed the husband remain in Court whilst he took advice from his counsel, and adjourned the Court. Upon her return there was discussion as to whether the alleged event amounted to a contempt in the face of the Court or not and the procedural consequences of that. That discussion occupied a considerable amount of time but it is not important for present purposes and we need not consider it further. However, during the course of that discussion counsel for the husband informed her Honour ``My client pleads guilty to the charge but wants to put some matters before Your Honour in (mitigation)''.

Her Honour, after further discussion, indicated that, in her view, she should hear and determine the contempt issue at that stage and that, in that event, she would not be able to continue with the property hearing. Counsel for the husband said to her Honour:

``Your Honour, I would ask in that regard that the contempt matter be dealt with by somebody else, and that the property matter proceed before Your Honour.''

During the course of this discussion, counsel for the husband indicated that she ``withdrew'' the ``plea of guilty'' on behalf of her client.

After further discussion, counsel for the wife indicated that her instructions were to ``withdraw the charge''. There was then discussion as to whether the proper course was to allow it to be withdrawn or whether it should be dismissed. Her Honour gave judgment in which she briefly reviewed the events up to that time. In the course of that she referred to the nature of the allegation which had been made, and stated ``I emphasise that I have no direct evidence of these matters at this stage, I am only relying very much on hearsay information''. Her Honour ruled that she should ``dismiss the question of alleged contempt by the husband''.

Counsel for the husband then submitted that her Honour should disqualify herself from the further hearing of the property matter. As later elaborated upon by counsel for the husband the submissions pointed to the statements which had been made to her Honour by counsel for the wife and the Legal Aid solicitor, the fact that the husband had been required to remain in Court, and that at one stage a ``plea of guilty'' had been indicated. Counsel for the husband emphasised that as credibility was an important issue in the property proceedings, it might be reasonably apprehended by the husband that the events of that morning may have an adverse impact upon the trial Judge's ability to bring a fair and impartial mind to bear on that issue. This application was opposed on behalf of the wife. It was pointed out that it was not a case where her Honour had seen or heard the events relied upon or had expressed any views or formed any judgment about them and the matter had been withdrawn. In addition, substantial costs and delay would be involved to the parties, and in particular the applicant wife, if the proceeding came to an end in this way and had to be re-heard de novo by another judge.

Her Honour then delivered a judgment in which she rejected the application. Her Honour briefly reviewed the circumstances and the submissions which had been put to her. Her conclusions were in the following terms:

``As I think I have already indicated, had I proceeded to make findings in relation to anybody or any matters in the context of contempt or what I will call the contempt proceedings, it would have been inappropriate that I continue with the substantive hearing. But in the events which have happened, there has been no such finding. I have already heard three days' evidence in this case. I have seen both the parties in the witness box and have already had ample opportunity to observe and form preliminary views about them.

I do not consider that the matter put `as being a fear existing in the mind of one of the parties' is reasonable in all the circumstances, and a balancing of the interests of justice would require me to dismiss the application and proceed with the hearing of the application for property settlement.''

Before us, senior counsel, who appeared for the husband, submitted that her Honour was in error in so ruling and that she ought to have disqualified herself from further proceeding with the matter. Senior counsel reiterated the arguments which had been put by counsel for the husband to the trial Judge. In addition, he pointed to the circumstance that credibility formed a very important aspect of this case and that, in the final analysis, her Honour had taken a very adverse view of the husband on that issue, and that those conclusions were based, at least in part, upon evidence which the husband continued to give on 25 July after the events referred to above. He further submitted that her Honour was in error in the circumstances in concluding that it was necessary for her to deal with the contempt issue at that stage.

For the respondent, counsel submitted that her Honour correctly exercised her discretion in determining to continue with the hearing and had balanced the competing interests which were involved. She further pointed out that counsel for the husband requested that her Honour continue with the property matter and that nothing had occurred subsequently which could have had any relevance so as to create bias or prejudgment in the mind of the trial Judge. Counsel for the wife further submitted that it was not competent for the appellant to raise these matters on appeal at this stage and that the proper course was for the husband to have appealed against that ruling at that time and not to have awaited judgment, and suggested that observations in Bizannes and Bizannes (1977) FLC ¶90-313 supported that view.

The general principles to be applied where bias or prejudgment is alleged have been referred to recently by the Full Court in Sealey and Sealey (1986) FLC ¶91-736. In that case the Full Court (Fogarty, Murray and Strauss JJ.) said at pp. 75,359-75,360:

``It is convenient to refer to the principles which apply when issues of bias of the type suggested in this case are raised.

Counsel for the husband referred us to a number of earlier cases which related to this issue including Vincent v. Curran (1909) V.L.R. 370; R. v. The Justices of Queen's County (1908) I.R. 294; Re McCrory, Ex parte Rivett (1895) 21 V.L.R. 3; and more recently R. v. Camborne Justices; Ex parte Pearce (1945) 2 All E.R. 850. However, it appears to me that the principles to be applied have been clearly established in a significant line of recent cases in the High Court: Inre Watson; Ex parte Armstrong (1976) FLC ¶90-059 at pp. 75,270-75,273; (1976) 136 C.L.R. 248 at pp. 258-263; Re Judge Leckie; Ex parte Felman (1977) 52 A.L.J.R. 155 at p. 158; Re Lusink; Ex parte Shaw (1980) FLC ¶90-884; Livesey v. N.S.W. Bar Association (1983) 57 A.L.J.R. 420; In re Simpson; Ex parte M. (1984) FLC ¶91-513. Reference might also be made to cases in the Full Court of this Court including Lonard and Lonard (1976) FLC ¶90-066; Axtell and Axtell (1982) FLC ¶91-208; and Horton and Horton (1983) FLC ¶91-368.

Those cases establish that the principle to be applied is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the solution of the question involved in it.

While each case must be determined by the application of that principle to the particular circumstances of the case, it is possible to extract from the authorities the following points of guidance:

1. If a judge considers that there is a real possibility that his prior involvement in the case might lead to a reasonable apprehension of prejudgment or bias, he should refrain from sitting.
2. The question of bias or prejudgment is not to be determined by reference of the ability of a particular court or to public confidence in the integrity of the judiciary. The issue usually is the appearance rather than the actuality of bias by reason of prejudgment.
3. However, it would be an abdication of the judicial function and an encouragement of procedural abuse for a judge to automatically disqualify himself whenever he was requested to do so on the ground of possible bias or prejudgment regardless of whether the other party desired the matter to be dealt with by him as the judge to whom the hearing had been entrusted by the ordinary procedures and practices of the particular court.
4. A fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views about

(a) a question of fact which constitutes a live and significant issue in the subsequent case, or
(b) the credit of a witness whose evidence is of significance in such a question of fact.

5. It is not uncommon, and is sometimes necessary, for a judge, during argument, to formulate propositions for the purpose of enabling their correctness to be tested and as a general rule anything that a judge says in the course of argument will be regarded as `merely tentative and exploratory'. The expression of such provisional views is not ordinarily to be taken as indicative of bias.
6. An appeal court would not lightly conclude that the judge might reasonably be suspected of bias or prejudgment; it must be `firmly established' that such a suspicion may reasonably be engendered in the minds of a party or the public.''

The circumstances in this case relate to events which occurred during the course of a trial, and in relation to events of that nature it appears to us that the following further principles have application:

(a) During a trial there may be conduct or the allegation of conduct by a party or other person which may amount to a contempt of court and which requires the Court to respond at that stage if the authority of the Court and the confidence of the parties and the public in it is to be maintained.
(b) But that does not necessarily mean that that Judge must hear and determine that issue immediately; it may be sufficient for the Judge to indicate clearly a resolve to do so at an appropriate time.
(c) In such a case there are ordinarily three possible options open to the trial Judge:

(i) to determine the issue for himself at that point, interrupting the trial for that purpose;
(ii) to adjourn the matter for determination by him at the conclusion of the trial;
(iii) to refer the matter to another Judge to determine, either during the course of the current proceeding or upon its termination.

(d) It is a question for that Judge to determine which course would best serve the interests of Justice in the particular case
(e) Option (i) above should only be adopted in exceptional circumstances: As Stephenson J. said in Balogh v. St Alban's Crown Court (1975) 1 Q.B. 73 at p. 87: ``This procedure is one to which Judges should resort in exceptional cases where a contempt is clearly proved and cannot wait to be punished.'' See also Lord Denning M.R. at p. 85 and Lawton L.J. at p. 93, and generally the discussion in Fraser v. The Queen (1984) 3 N.S.W.L.R. 212.
(f) Where it is felt that the circumstances required the matter to be heard and determined promptly, it may be preferable in most cases to refer that issue to another Judge. However, there may be circumstances which militate against that course; for example, where the events in question have occurred in the hearing or sight of the trial Judge. In such a case it may need to be heard by that Judge, although in many cases the most convenient course then would be to do so at the conclusion of the trial unless there were compelling reasons which require swift and decisive judicial intervention.
(g) Bias or prejudgment ought not to be lightly inferred and, as indicated in point 5 of the judgment in Sealey's case, a court of appeal would not lightly conclude to the contrary where the trial Judge has carefully considered the issues involved.

In this particular case we consider that her Honour properly exercised her discretion in deciding to continue with the trial. The proceeding was a complex property case; it had waited a substantial time for hearing; it was then in its fourth day and near a conclusion. Her Honour did not determine any issue of fact or credibility arising out of this incident. All that happened was that counsel for the wife outlined allegations which were supported by another solicitor. Although a ``plea of guilty'' had been proffered, it was subsequently withdrawn and the application itself was withdrawn. In addition, it is most significant, in our view, firstly that counsel for the husband urged her Honour to continue with the hearing after all of the facts had been outlined, but upon the basis that the contempt matter be dealt with by another judge, and secondly that in final submissions this matter was not referred to by counsel for the husband in her submissions on the important issue of credibility.

We should add, in relation to counsel for the wife's submissions, that where such a ruling as this is given during a trial, it is not the appropriate course for the dissatisfied party to institute an appeal to this Court from that ruling. Bizannes' case does not support such a practice; see especially p. 76,672. A trial Judge may make many rulings during the course of a trial, including rulings as to admissibility of evidence and procedural matters. The proper course is to await judgment and raise such matters, along with any other relevant grounds, upon the hearing of any appeal against the judgment as finally entered. This is different, of course, from applications which may be made to the High Court for the issue of a prerogative writ: as to which see Re Baker; Ex parte Johnston (1980) FLC ¶90-914 and Re Ross-Jones; Ex parte Green (1984) FLC ¶91-555.

Accordingly, in our view, her Honour was correct in proceeding to complete the hearing of this matter and we turn to the grounds of appeal which relate to her Honour's judgment on the sec. 79 application.

[The Full Court set out the findings of the trial Judge concerning the financial history of the parties since they moved to Australia as permanent residents in June 1974.

The trial Judge found it hard to identify any assets in which the husband had an interest other than the last matrimonial home. The home was purchased in December 1977 for $135,000 and improvements were carried out to it by the husband. At the time of the hearing the agreed value of the home was $340,000.

Between 1974 and 1980 neither party had an ostensible source of income other than the funds which had been brought from New Caledonia. During that period the parties enjoyed a very comfortable lifestyle. In 1981 the husband formed a company known as Giunti Construction Enterprises Pty. Ltd. which the trial Judge found was the vehicle for his building activities. Her Honour found the accounts of the company to be completely unsatisfactory. The tangible assets of the company were the amounts still outstanding from its building enterprises. The husband had debts of an unspecified value. The trial Judge found that there was no proper evidence to enable her to make a firm determination of the net amount the company would expect to receive.

The Full Court then set out the conclusions and orders of the trial Judge as follows:]

Her Honour concluded:

``I am satisfied that the overall affect of these specific findings and the whole of the evidence including the fact that the husband has continued to live since separation in a manner to which he has become accustomed himself, (he says without working) that the husband has available to him, far greater resources than he was prepared to reveal to this court. There is no alternative but to give proper recognition to the wife's contribution to assets other than the former matrimonial home, by increasing her share in that one tangible asset, and taking all those matters into account, I assess her share based on contribution, at 60%.''

Her Honour then considered to what extent, if any, that amount should be increased by reason of sec. 75(2) factors. Comparing their respective capacities to gain income, that of the husband being found to be potentially stronger than that of the wife, the wife's ongoing responsibility for the youngest child A, who was only 14 at the time, and the husband's fitful record of payment of maintenance, and her liability to pay rent for the premises occupied by her, her Honour increased the wife's share to 65% of the former matrimonial home.

Mindful of the wish of the husband to retain the former matrimonial home, her Honour made an order that the husband pay $221,000, being the equivalent of 65% of the value of the former matrimonial home to the wife on or before 4 January 1986 in return for which she was to transfer her interest in the home as well as her shareholding in Giunti Construction Enterprises Pty. Ltd. In default of payment provision was made for the sale of the home and the division of the net proceeds thereof in the proportion of 65% to the wife and 35% to the husband.

Provision was also made for the maintenance of the child A and the wife's application for maintenance was stood over generally with liberty to restore on 21 days notice.

From those orders the husband has appealed.

[The Full Court then set out the grounds of appeal and discussed several grounds not relevant to this report. It then dealt with the husband's argument that the trial Judge could not, in measuring the wife's contribution, take into account what were allegedly unspecified and unquantified assets:]

Unspecified and unquantified assets

As her Honour repeatedly stated in her judgment the only Australian asset of the parties still in existence at the time of the hearing which she could identify was the former matrimonial home with an agreed value of $340,000. However, her Honour took into account in measuring the wife's contribution that the husband had other assets, the existence of which he had failed to disclose, but which her Honour could not, on the evidence before her, identify or value with precision.

Counsel for the husband argued that the contribution of a party to the property of the parties or either of them under para. (a) and (b) of sec. 79(4) could only be measured in respect of property which could be identified on the evidence. He conceded that this was not confined to assets disclosed by the respondent or established by direct evidence, but that the existence of such other assets could in certain cases be inferred from the evidence, e.g. by its prior existence and the failure to explain adequately how it had been disposed of. But in this case, it was argued, her Honour had been unable to come to any conclusion as to the existence of other assets and had spoken in vague terms of the ``hidden resources'' of the husband.

He relied on the joint judgment of Simpson, Murray and Frederico JJ. in Monte and Monte (1986) FLC ¶91-757. In that case the Full Court accepted the proposition that the upper limit of what can be ordered to be transferred to one of the parties in an application under sec. 79 is ``the whole of the ascertained property of the parties''.

In this case, of course, her Honour did not purport to exceed the whole of the ascertained value of the former matrimonial home. However it was argued that it followed from what was said in Monte and Monte that the Court should first of all identify the property of the parties, secondly measure the contribution of each of the parties to the property so identified and thirdly possibly adjust the shares arrived at by reason of contribution by reference to sec. 75(2) factors which could include as a factor a judicial satisfaction that there were in existence undisclosed financial resources on the part of the respondent.

It is obviously desirable as a general principle that the Court should first of all identify the pool of assets available and evaluate it. If each party complies with his or her obligation to make a full and substantive disclosure of their financial affairs: see Briese and Briese (1986) FLC ¶91-713, affirmed by the Full Court in Oriolo and Oriolo (1985) FLC ¶91-653, there is no problem although there may be disputes as to valuation.

However if, as here, one party fails to fulfil that obligation, is it open to that party then to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require? It would be simple, if that were the case, to evade the jurisdiction of this Court, not by outright refusal which would attract sanctions, but by obfuscation and evasion. Indeed, their Honours in Monte answered that dilemma in the following terms:

``To find jurisdiction under sec. 79 in relation to property, other than the fund, her Honour was obliged to make a finding as to the existence and value of that other property even though the unsatisfactory nature of the evidence made it necessary to express that finding in the most general terms both as to identity and value.''

In the present case her Honour did make such findings. In the first place, there was the construction company which her Honour treated as she was entitled to do, as the husband's alter ego. This meant as she explained that she looked to the funds and income which the building work carried out by the husband through the company generated for him. The evidence did not allow her to make findings with precision as to any funds still outstanding. But her Honour did describe in general terms the type of work and the amount of money which that work had generated, and in particular, the sum of $40,000 which remained outstanding.

Her Honour also made findings that the husband had received an additional $25,000 in cash on the sale of the Dover Heights property, that he had been left with $40,000 in cash on separation and that he had received 4 million New Caledonian francs or $27,500, being the balance of the sale price of the New Caledonian assets. Admittedly her Honour was not able to make any more precise finding tracing the present whereabouts of those assets, but if they had been expended on living expenses or improvements of the Rose Bay property that was a matter in the knowledge of the husband which both technically and legally it lay upon him to explain. Her Honour found that she was not given any acceptable explanation.

Combined with the evidence of the husband's continued ample standard of living, that evidence entitled her Honour to infer that the husband had the benefit of assets which he had not disclosed. In the most general of terms those assets could have a value of at least $90,000.

It was submitted for the husband that this was a situation where the wife on contribution was entitled to only 30% of the identifiable assets. It was further argued that to increase that amount to 60% was to make assumptions as to the existence and value of other assets which were in no way justified. Such a calculation is clearly untenable in the light of what was said by the High Court in Mallet v. Mallet (1984) FLC ¶91-507; (1984) 9 Fam. L.R. 449 and recently reiterated by the High Court in Norbis v. Norbis (1986) FLC ¶91-712. Just as there is no 50% rule for the wives of wage earners, there is no 30% rule for the wives of businessmen.

Furthermore in determining contribution, the Court must consider not only contribution made to existing properties, but also to properties which might have been owned previously by the parties. In addition, it must consider under sec. 79(4)(c) contributions to the welfare of the family as a homemaker and parent which bears no relationship to property at all. Her Honour very carefully reviewed the financial history of the parties: she pointed out that the parties started with limited funds and rejected the contention of the husband that he had considerable savings at that time other than the $3,000 on deposit in Australia. She reviewed the contribution made by the wife as homemaker and parent and again rejected the husband's submissions. That contribution continued after separation and her Honour remarked on the lack of support since then by the husband.

In those circumstances a conclusion that the wife by reason of her contribution over 20 years of marriage, during which 3 children were born and cared for, and substantial assets were acquired should receive 60% of the one asset in respect of which orders could be made cannot be described as so plainly excessive or unjust that this Court should intervene. It was well within her Honour's discretion. Nor could it be said that her Honour erred in increasing that figure by a further 5% having regard to the disparity in needs and means on the evidence as found by her Honour.

Adjournment of the wife's maintenance claim

This matter was raised at the conclusion of the submissions and does not appear in any formal notice of appeal. Thus it is dubious whether this Court should seriously entertain it. Be that as it may, we are of the opinion that had the matter been properly raised, it would not have succeeded.

Her Honour said:

``The wife sought an order for her maintenance and her counsel sought that this be taken into account in the order made in relation to the former matrimonial home. I do not consider that that aspect can be dealt with at the present time, notwithstanding the desirability of finalising the proceedings between the parties.

The wife has set out details of expenditure which relate to her present situation. I think these orders should be put into effect and the financial situation of both parties settled in their respective households, before a proper application of the provisions of sec. 72 can take place.''

A decision to adjourn proceedings for later determination is a matter of procedure with which this Court is loath to interfere. However reference was made to the decision of the Full Court in Dow-Sainter and Dow-Sainter (1980) FLC ¶90-890 where the trial Judge had similarly stood the wife's application for maintenance for herself and her child over sine die to allow the property order to be carried into effect in the hope that the parties would then agree.

The wife appealed from that decision and Asche and Ellis JJ. held that the trial Judge had erred in this respect and should have considered the question of maintenance at the hearing. In not doing so, he had ignored the direction of sec. 81 and had placed an unfair burden on the wife who until then would have to support herself and the child (see at p. 75,619).

In this case it is the husband who complains that he should not have this issue hanging over his head. However, a major part of the problem facing the trial Judge in determining maintenance was the difficulty of discovering the husband's source of income and quantum of income. Nor is there, in this case, the same degree of injustice or hardship to the husband as there was to the appellant wife in Dow-Sainter. Whilst normally it is desirable to determine all of these financial matters at the one time, in the unusual circumstances of this case we consider that it was within a proper exercise of her Honour's discretion not to have dealt with the question of maintenance at that time. No doubt, if either party has the matter restored before her Honour, her Honour will, subject to satisfactory material, take steps to ensure that the outstanding matter is resolved.

In our view the appeal should be dismissed.

At the conclusion of hearing of the appeal we took argument on the question of costs. In our view, it is an appropriate case to order that the unsuccessful appellant pay the respondent's costs of the appeal.

Accordingly, we order:

1. That the appeal be dismissed.
2. That the appellant pay the respondent's costs of the appeal to be agreed or as taxed by the Registrar of the Court at Sydney.