Graham v Baptist Union of New South Wales

[2006] NSWSC 818

CITATION:	Graham v Baptist Union of New South Wales [2006] NSWSC 818
HEARING DATE(S):	01/08/06
JUDGMENT DATE :	16 August 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
DECISION:	No breach of procedural fairness in not notifying the actual date of relevant meeting in view of plaintiff's failure to avail himself of opportunity to fix date himself. Declaration that the appeal of the plaintiff to the Committee for the Ministry is still on foot. No order as to costs.
CATCHWORDS:	ADMINISTRATIVE LAW [63]- Complaint against minister- Minister unresponsive when provided with opportunity to be heard- Minister not told precise time and place of hearing but was aware of imminence of meeting- Committee made adverse decision- Minister lodged appeal against decision- Late with statements- Counsel assisting defendant stated appeal deemed abandoned- Not appropriate- Appeal still on foot.
LEGISLATION CITED:	Baptist Union Incorporation Act 1919
CASES CITED:	Automatic Ticket Research (Vic) Pty Ltd v Legal Aid Commission of NSW (1991) 22 ALD 590 Carver v Law Society of NSW (1998) 43 NSWLR 71 Foran v Wight (1989) 168 CLR 385 Hedges v Australasian Conference Association Ltd [2003] NSWSC 1107 Hopkins v Smethwick Local Board of Health (1890) 24 QBD 712 Pearce v Foster (1886) 17 QBD 536 Re Veron; Ex parte Law Society of NSW (1966) 84 WN (Pt 1) (NSW) 136 Sharpe v Brown [1918] VLR 678
PARTIES:	Phillip Graham (P) Baptist Union of New South Wales (D)
FILE NUMBER(S):	SC 2475/06
COUNSEL:	A G Melick SC and S A Beckett (P) P Singleton (D)
SOLICITORS:	Parke Maher (P) McPhee Kelshaw (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Wednesday 16 August 2006

2475/06 - GRAHAM v BAPTIST UNION OF NEW SOUTH WALES

JUDGMENT

1 HIS HONOUR: The plaintiff is an accredited minister of the Baptist Church. The defendant appears to be the controlling body of that Church though each individual Baptist Church is more or less autocephalous.

2 The defendant received a complaint with respect to the plaintiff. It had a procedure for dealing with such complaints. By-laws of the Baptist Church purportedly made under the Baptist Union Incorporation Act 1919 provide for a Committee for the Ministry, one of the objects of which is to consider and determine matters relating to the accreditation of ministers. That committee has issued guidelines said to carry out its responsibility to ensure all persons accredited by the denomination maintained integrity in ministry. Although no statutory or consensual basis was laid for the adoption of these guidelines, both parties accepted that they were the binding rules governing the existing problem.

3 The Baptist Church does not have any equivalent concept to the office of Holy Orders conferred by Episcopal ordination. All members of the Church are ministers, but some are accredited as ministers and this means that they are then qualified for selection by Baptist churches to be employed as full time pastors of congregations.

4 The plaintiff currently is an accredited minister. He is the minister in charge of a congregation in the Hunter Valley. This means that he has some sort of contract with his congregation but has no contractual relationship with the Baptist Union as such.

5 A complaint was received about the plaintiff from the complaints department of another church. The essential nature of the complaint was of bullying and an overbearing attitude towards his family.

6 The Baptist Church took these allegations seriously and referred them to the Discipline Sub-Committee set up under the guidelines. That committee in turn referred the matter to a Mr Yee for investigation. It would seem after considering Mr Yee's report it determined that the plaintiff had a case to answer.

7 The guidelines then provide that if the Sub-Committee had decided that there was a case to answer " … then the complainant and accused are to be provided opportunity to address and respond to the investigator's report and statements made by the other. The complainant and the accused may be accompanied by a support person to any meeting held in relation to the complaint. … For a complaint to be upheld, the Sub-Committee must be satisfied that 'on the balance of probabilities' the allegations are true."

8 The procedure that follows on from that decision of the Sub-Committee is that it makes its report to the Committee for the Ministry, the Committee for the Ministry determines what the appropriate action is and if it considers that the appropriate action is that the minister lose his or her accreditation, then that matter is submitted to the assembly of the whole Church for decision.

9 Section C of the guidelines provides:

"The complainant or the accused may appeal against the process or decision of the Committee for the Ministry to the Baptist Union Executive who may appoint a committee of three persons to determine the matter. An appeal must be brought within one month of the behaviour or decision which is being challenged."

10 Dr Powell says that the records of the Church shows that the plaintiff was informed of the complaint on 1 August 2005. An investigator was appointed on 5 August. The investigator interviewed the complainant, her partner and one of her sisters and found that there was some corroboration of the complaint. On 1 September the Sub-Committee decided to forward a copy of the written complaint to the plaintiff. On 9 September the plaintiff requested time to consult an adviser when his adviser returned on 19 September. In October the plaintiff requested further transcripts and sought further details before he would reply, and challenged the investigator's credentials. On 12 October the plaintiff said that the transcripts were essential to his response and all further correspondence should go through his solicitor. On 20 October the Sub-Committee resolved that the plaintiff had a case to answer, there was further communication between the parties, and on 3 November the plaintiff's solicitors stated again that they would give consideration to the complaint only when they received copies of all statements by those interviewed by the investigator.

11 On 21 October 2005, the chairman of the Discipline Sub-Committee wrote to the plaintiff enclosing a copy of the investigator's report and noting that the Sub-Committee believes the report raises questions regarding his suitability for Christian ministry. The letter continued:

"The committee invites you to meet with them to address and respond to the report's contents. The committee is available to meet with you sometime between November 1-14, if not earlier. If the committee does not receive a positive response from you by October 31, they will still continue with their procedures to determine whether the allegations are deemed true 'on the balance of possibilities'. … The committee would be prepared to travel to the Hunter area to meet with you. If you choose to meet with the committee, then you may be accompanied by a support person…".

12 This was met by a letter from the plaintiff's solicitors that on receipt of copy statements they would give the matter further consideration. The chairman replied to the solicitors that as the plaintiff had not addressed or responded to the complaint he assumed that the plaintiff was not willing to co-operate with the inquiry and the committee would forward a recommendation to the committee for the ministry at its meeting on 17 November. After further correspondence the chairman wrote to the solicitors on 14 November:

"Your client has been given full details of the allegations against him … and has been given his daughter's statement.
As both your office and also your client have previously been advised, the Discipline Sub-Committee proposes to continue its procedures this week and to bring a recommendation to the Committee for the Ministry this Thursday based on the evidence that has been provided."

13 On 18 November 2005 Dr Powell sent a letter to the solicitors noting that at its meeting on 17 November the Committee for the Ministry resolved to recommend to the next NSW Baptist Union Assembly that the name of the plaintiff be removed from the list of accredited ministers on the grounds of:

(a) behaviour inconsistent with the character expected of someone in ordained Christian ministry;

(b) unwillingness to meet with the investigator or Discipline Sub-Committee to provide a response to the complaint.

It noted that the plaintiff might appeal and set out section C of the guidelines.

14 On 14 December 2005, the solicitors submitted a notice of appeal. The notice of appeal merely said:

"The Reverend Phillip Graham appeals against (1) the process of the Committee for the Ministry; and (2) the decision of the Committee of the Ministry."

15 On 15 February 2006, the plaintiff's solicitors were informed that the Executive Committee of the Baptist Union had appointed two male ministers and a female minister to form the committee to hear the plaintiff's appeal. It had previously been indicated to the plaintiff that the honorary legal adviser of the Baptist Union would act as counsel assisting the appeal committee. The letter of 15 February further said that it would wish to be advised as a matter of urgency as to whether the plaintiff intended to proceed with the appeal process and if so, times when he might be available to meet with the committee.

16 On 28 February the solicitors responded that no time frame could be established until the information requested on numerous occasions was provided.

17 On 2 March the Baptist Church advised the solicitors that there was no reason why the appeal could not take place before Easter and after other correspondence, on 16 March the honorary legal adviser of the Baptist Union wrote to the solicitors a long letter, the key points of which were:

· in the absence of any statements by or on behalf of the plaintiff it is unclear whether any alleged procedural irregularities would have made any difference;

· no evidence has been put forward by the plaintiff that the complainant's allegations were "blatant misrepresentations of the true facts" as the notice of appeal had stated;

· if the "process" part of the appeal was upheld the matter would be remitted for redetermination by the Sub-Committee;

· there was no material put forward by the plaintiff that he at all material times had been willing to meet with the Discipline Sub-Committee;

· that any evidence must be produced to counsel assisting by 24 March 2006;

· The question was: (a) whether the process had miscarried with some likelihood that the committee for the ministry would have come to a different decision; or (b) the decision of the Committee for the Ministry was in error on the evidence before it.

18 The letter concluded:

"Should your client not be prepared to make all statements on which he wishes to rely available by [Friday 24 March 2006], it will be assumed that he does not wish to proceed with his appeal."

19 On 28 March 2006 the honorary legal adviser wrote a further letter to the solicitors repeating a lot of previous statements but saying:

"Your client has not seen fit to adduce any evidence by 24 March 2006 as was required by my letter dated 16 March 2006. Your client has not seen fit to put forward any explanation for his failure to meet the fixed deadline.
It is acknowledged that Mr Greg Melick of Counsel phoned me on the morning of Friday 24 March 2006 to say that he had been briefed the previous afternoon but would not have an opportunity to peruse the brief before the weekend. I expressed surprise that, in all the circumstances, your office had not briefed him earlier. We agreed that he would contact me on Monday 27 March 2006.
On Monday 27 March 2006, Mr Melick and I again spoke. I was informed that he had advised your office to immediately forward the statements that had been prepared by your office last year in response to the contents of the report from the investigator into the allegations made … . As at 3 pm today Tuesday 28 March 2006, these statements have not been forthcoming.
…
Nothing has been produced on behalf of your client which would support any of the grounds set out in your client's appeal.
In my letter to you dated 16 March 2006, it was observed in conclusion that: 'should your client not be prepared to make all statements on which he wishes to rely available by Friday 24 March 2006, it will be assumed that he does not wish to proceed with his appeal. Your prompt response would be appreciated.'
It is accordingly assumed that your client does not wish to proceed with his appeal."

20 Later that afternoon the honorary legal adviser wrote again to the solicitors:

"I acknowledge receipt of your fax, enclosing four statements by members of the Graham family, which was received at 3.38 pm (ie 15 minutes after my fax to you was sent to your office).
Unfortunately, the time limit imposed on your client cannot be ignored. Your client has had since 21 October 2005 to provide these statements but has repeatedly elected not to do so.
The position taken in my earlier fax to your office stands. One is left with the uneasy suspicion that there was no intention to provide the statements until it was too late."

The letter then pointed out that there was nothing in the statements in any event which addressed various grounds of the appeal.

21 The four statements were from the plaintiff, his wife and two of his children alleging that none of the allegations about the plaintiff's alleged conduct towards the complainant had any foundation at all.

22 Had the statements been forwarded before 17 November 2005, and had the investigator had an opportunity to confer with the maker of the statements, it may well have been that the Sub-Committee would have been confronted with three people assuring the investigator that the conduct had taken place and four people denying it. However, the Sub-Committee only had before it, it would seem, the statements of the complainant, her partner and one of her sisters plus certain corroboration and there is nothing to show that on the balance of probabilities it was wrong in accepting the correctness of those statements and making a report to the Committee for the Ministry accordingly.

23 The questions for me therefore seem to be the following:

(1) Was there any failure of process before the Sub-Committee?

(2) What is the nature of the appeal?

(3) Is the appeal still on foot or has it been terminated?

(4) What is the result of the case.

24 Before dealing with these matters I should note with some concern that the processes set out in the guidelines do not seem to be adequate for the present type of case where there is a severe dispute as to the facts. There does not appear to be any ability in the Sub-Committee to receive evidence or to test the evidence by cross-examination. Fact finding as to what happened within families where the allegations surface, as in this case some 12 years after the event, are very difficult matters and it would be very difficult for a lay committee to evaluate the facts and there does not appear to be any scope for the appointment of a hearing committee involving a lawyer or other trained professional to assist.

25 Furthermore, the guidelines are a little obscure as to what it is that the Discipline Sub-Committee is to consider. In these church matters there are two distinct, though sometimes interlocking questions. The first is whether it is for the protection of the Church that a particular person not be permitted to exercise certain ministries. The second is whether because of his or her conduct, a particular person should not be allowed to exercise ministry.

26 If the relevant committee is dealing with the first issue, then the "guilt" or innocence of the propositus is not to the fore. There may be situations where the general perception is that it would be difficult to allow the person to officiate. An instance is where the police arrest the minister and charge him with a serious sex offence. It may be that in due course the minister is acquitted, but certainly at least pending that acquittal it would usually not be appropriate for the Church to continue to put that person forward as a person of integrity in the ministry. Again, a minister who was seen frequenting a brothel may not have in fact committed adultery, but the fact that he was seen in that vicinity may make people think the less of him and so of the Church if he were permitted to officiate. The situation is not unlike the cases early last century where a merchant's clerk had been properly dismissed for speculating on the Stock Exchange, see eg Pearce v Foster (1886) 17 QBD 536.

27 The guidelines appear to be directed at the second class of case in that the propositus who called the "accused" and the committee is the Discipline Sub-Committee. There are indications the other way, but it seems to me that the predominant flavour is that it is necessary for the committee to come to the conclusion that on the balance of probabilities the "accused" has been guilty of the conduct complained about.

28 It should be noted, however, that the plaintiff is not an employee of the Baptist Union. His contract of employment is probably with the elders of his local congregation. Furthermore, lack of accreditation will not necessarily affect the plaintiff though the probabilities are that he will never get another job as a Baptist minister unless he is accredited and may lose his current job.

29 The next thing to note is that the Committee for the Ministry makes a recommendation to the General Assembly. The General Assembly then, rather like the case of a House of Parliament when a Judge is reported by the Judicial Commission for possible removal, has to determine fitness. This is a very difficult exercise to perform. The Assembly is structured on the basis of two or three representatives from each Baptist Church (it would seem that the plaintiff himself is a member of the Assembly) and the proceedings of the Assembly are quasi parliamentary, that is, that someone moves a motion and then it is debated. Presumably, unless this Court interferes what will happen will be that someone on behalf of the Committee for the Ministry will move that the plaintiff be disaccredited, that motion will then be debated on the floor of the Assembly. It would be very difficult for the personal details in the complainant's report to be debated in public and indeed even if they were, and the resolution was not to disaccredit the plaintiff, then the "dirty linen" aired publicly may well be sufficient to prevent the plaintiff ever being retained by any Baptist Church despite his denials.

30 Having made those remarks, I will now deal with the issues that arise.

31 (1) The principal argument on behalf of the plaintiff was that he was never notified of the time and date of any hearing by the Sub-Committee. I have set out the relevant correspondence and a reasonably astute observer might well conclude that the plaintiff knew that the committee would be meeting on 17 November or at least the Committee for the Ministry would be meeting on 17 November.

32 All the books of administrative law contain a statement such as that in de Smith, Wolfe and Jowell, Judicial Review of Administrative Action 5th ed (Sweet & Maxwell, London, 1995) para 9-007, "If an oral hearing is to be held, the time and place must be properly notified". Again, Aronson and Dyer Judicial Review of Administrative Action 3rd ed (Law Book Co, Sydney, 2004) pp 499-500 states "… notice must advise the time date and location of any hearing". Both those statements derive from Hopkins v Smethwick Local Board of Health (1890) 24 QBD 712, 715 where Wills J said, "The party to be affected should have a notice given him; and there is no notice, unless notice is given of time when, and place at which the party may appear and show cause." However, the true rule appears to be as set out by Hood J in Sharpe v Brown [1918] VLR 678, 685. There is Honour said:

"… the point taken by the plaintiffs is the merest technicality, devoid of any merits. They were not told when the meeting of the board would be held, nor were they summoned to attend. They knew, however, that according to the rules the meetings of the board are held on the first Thursday in each month. They also had the opportunity of communicating by letter. But the nature of the dispute was such that there was nothing further for them to say. They had been directed to obey an order within 31 days. They had for a considerable period prior flatly refused to obey that order, and did not comply within the 31 days. They were then informed of the board's intention, and still said nothing."

His Honour held that on the facts, had the plaintiffs in that case received notice they would not have attended and refused any injunction.

33 There seem to be two messages flowing from this passage, (1) that where a person knows that a committee meets at a regular time and knows that the committee at its next meeting is going to consider his problem, it is unnecessary to give a formal notice specifying the time and date of hearing; (2) that a person may dispense with the requirement to be notified of the time and place of hearing.

34 As to the first proposition, this fits in well with the large amount of judicial utterances that one does not measure principles of natural justice and whether there has been a fair hearing by fixed rules but rather looks to see whether in any particular case in all the circumstances fairness has been done.

35 In my view, when a committee tells a person that it is willing to meet at any time between 1 and 10 November at a time and place at his convenience and also informs him that the committee will be making a recommendation to its superior body which is meeting on 17 November, that is sufficient notice of the time and place of meeting.

36 As to the second matter, there are a number of cases in the conveyancing sphere where a person has dispensed with the necessity of the other party performing a condition such as attending on completion; see eg Foran v Wight (1989) 168 CLR 385. I would be reluctant to apply that line of authority except in a clear case because it is more likely in the present type of situation for a person threatened with a committee hearing which will threaten his or her ability to earn their livelihood and who has previously decided not to say anything, may repent at the last moment.

37 Thus, in my view my decision that there has been no breach of procedural fairness in not notifying the actual date of meeting is based on the first ground.

38 Other matters of procedural fairness were faintly argued before me but in the end the plaintiff's case on natural justice, that he was denied a fair hearing, came down to his not being notified of the time and place for hearing. I have found that against him and accordingly I have found there is no problem with the process before the Sub-Committee.

39 (2) I now turn to the appeal.

40 I have already set out section C of the guidelines. Omitting surplus words, "The accused may appeal against the process or decision of the committee for the ministry to the Baptist Union Executive who may appoint a committee of three persons to determine the matter." The honorary legal adviser took the view, and communicated this to the plaintiff's solicitors, that the appeal was not an appeal by hearing de novo but there had to be something in the process before the Committee for the Ministry or the decision of the Committee for the Ministry that was erroneous. He put that if, on the material before it, the Committee for the Ministry had come to the right decision, then the appeal should be dismissed.

41 If this were the nature of the so called appeal it would be of little worth. Moreover, for all intents and purposes the Court would not be affected by the fact that there was an appeal into permitting some indiscretions at the first instance stage as it often does if there is a meaningful appeal.

42 The words of section C could mean what the honorary legal adviser said they meant, but it seems to me that on a purposive construction and reading the document as a whole, the appeal must be wider than this. The ultimate decision is to be made by the General Assembly of the Church. The Committee for the Ministry sends on a recommendation. The guidelines seem to be based on the premise that the proper investigation will be done by the Sub-Committee and the Committee for the Ministry and that it would not be left to the Assembly to actually hear the material as well as make the final decision. Accordingly, it seems to me that the guidelines including the appeal provisions must be construed in a way that there is full opportunity for reviews to take place before the matter goes to the General Assembly.

43 It seems to me that even if the Sub-Committee made its decision on only hearing one side (because the other side did not respond), if the appeal committee hear that the "accused" now wishes to put forward material, then for the good of the Church and the proper working out of a disciplinary procedure, that material should be entertained. It may be, as the honorary legal adviser said, that the appeal committee (standing in the shoes of the Committee for the Ministry), may consider it appropriate to send the matter back to the Sub-Committee, but I do not think that the material can just be ignored.

44 The honorary legal adviser may well be right that the appeal hearing is not a hearing de novo. However, it is a supervisory appeal and if the supervising committee considers that in justice and fairness and in the spirit of Christianity the matter should be referred back to the Sub-Committee to consider further material, then it should be at liberty to do so.

45 (3) It is clear that an appeal committee may, like any tribunal, consider that sufficient time has gone by for an appeal to be brought on and may give directions including directions that if something does not happen by a certain time it may dismiss the appeal. However, what happened in the present case is that it was not the committee that made a decision to set a deadline or to say that it was assumed that the appeal was not proceeding, but it was counsel assisting. Even though one applies a relatively lax approach to technicalities, it does seem to me that it was beyond the scope of counsel assisting to (a) set the deadline; and (b) indicate that he assumed that the appeal was not proceeding. Counsel assisting is there to assist a committee, particularly a non-legal committee, with proper procedure. He or she can make recommendations and submissions, but the decision has to be the decision of the appeal committee.

46 In the instant case the appeal committee at no stage made the decision that the appeal was dismissed.

47 Furthermore, not even the appeal committee would be empowered to say that the appeal was assumed to be at an end. One would have expected at the very least it would have had to call upon the appellant to show cause why it should not formally dismiss the appeal. But then one has got to look to see what did happen.

48 At about 3.15 pm on Tuesday 28 March 2006, the honorary legal adviser wrote that the deadline had passed, there had been no material and he assumed that the appeal was abandoned. At 3.38 pm on the same day, four statements arrived. The honorary legal adviser said he assumed these had been held back deliberately, but there was really no material from which that could be concluded on even the balance of probabilities. An equally available scenario was that Mr Melick of counsel who had come into the matter on Thursday 23 March had advised the plaintiff that presumably the advice he had previously been getting from lawyers that he should not co-operate with the inquiry was completely wrong and that he should do so. Unfortunately, even then the plaintiff's solicitors made an error in omitting to furnish the material when they said they would on Monday 27 March.

49 However, justice in this sort of case is not to be meted out in coffee spoons. In fairness, material submitted late, but before a final decision is considered, usually needs to be assessed, Automatic Ticket Research (Vic) Pty Ltd v Legal Aid Commission of NSW (1991) 22 ALD 590 (NSWSC Rolfe J). Had a proper notice been given by the committee that it would meet on a certain day and would dismiss the appeal if there was no material before it then, the four statements would have been provided to it. What it would have done with the four statements is another matter. It may have acted on the erroneous advice of the honorary legal adviser and considered that as the material was not before the Sub-Committee it would disregard it. On the other hand, it may have acted properly in accordance with law and considered the contents of the statement and made a decision either that the matter should go back to a Sub-Committee for redetermination in the light of the further material or make some other determination.

50 In my view the plaintiff's appeal is still on foot and it is appropriate to make a declaration to that effect.

51 (4) It follows from what I have said before that in one respect, and in one respect only, the plaintiff should succeed in that there should be a declaration that his appeal to the Baptist Union Executive is still on foot.

52 I have thought hard and long as to whether, in my discretion, I should make such a declaration. The rule for almost all professions is that a person, when their fitness to continue in practice is questioned, must co-operate with the professional body entrusted with determining such matters; see eg in the case of solicitors Re Veron; Ex parte Law Society of NSW (1966) 84 WN (Pt 1) (NSW) 136.

53 In Hedges v Australasian Conference Association Ltd [2003] NSWSC 1107, a case involving disciplinary action taken against a lay officer of the Seventh Day Adventist Church, I said at [126]:

"I should note, that early on in the investigation, the plaintiff took the position, which he says was a result of legal advice in not co-operating in the investigation and waiting until formally informed of the precise allegations. This was a dangerous path to take."

I reiterate that. The Court will not be at all sympathetic to a person who has (whether on legal advice or not), stood by while his or her professional association is known to be conducting an investigation and not responded to invitations for an explanation of his or her alleged conduct. However, as in Hedges case the point may be reached where the administrative process used by the Church is so defective that the Court feels compelled to give some relief. Often, however, the Court may decide in its discretion that the plaintiff's problems are a result of his or her own making.

54 In the instant case I believe I should make the declaration, and indeed, it is better for all parties that this matter be properly investigated in a committee rather than in the General Assembly. That, however, is just a happy happenstance.

55 As to costs, it is my view that this litigation has been brought about by the plaintiff's wrong decision in declining to co-operate with the committee, and that even though he has been successful with the litigation, at least in part, there should be no order as to costs.

56 Finally, although it does not affect the result of the case, might I again refer to my decision in Hedges where I said at [100]:

"I should note that the Professional Standards Committee acted both as the authority which authorised the investigation and also the adjudicator. This is bad practice and usually this fact alone will amount to a denial of natural justice as a person whose ability to earn a living is jeopardised by an adjudication is entitled to have that adjudication performed by an independent group of people."

That proposition is based on what the Court of Appeal said in Carver v Law Society of NSW (1998) 43 NSWLR 71. The point was not really argued in the present case, but it would seem to me that if the Baptist Union is going to revise its guidelines it should also pay attention to this vital point.

57 Accordingly, the Court declares that the appeal of the plaintiff to the Baptist Union Executive against the process or decision of the Committee for the Ministry is still on foot. The Court makes no order as to costs. The exhibits may be returned on an undertaking to restore them should there be an appeal.

***********************