Hallgath v Australian Community Pharmacy Authority (No 2)
[2011] FCA 1074
•14 September 2011
FEDERAL COURT OF AUSTRALIA
Hallgath v Australian Community Pharmacy Authority (No 2) [2011] FCA 1074
Citation: Hallgath v Australian Community Pharmacy Authority (No 2) [2011] FCA 1074 Parties: KENNETH HALLGATH v AUSTRALIAN COMMUNITY PHARMACY AUTHORITY, THE SECRETARY OF THE DEPARTMENT OF HEALTH AND AGEING and CKK SERVICES PTY LTD ACN 151 255 060 File number: QUD 222 of 2011 Judge: LOGAN J Date of judgment: 14 September 2011 Corrigendum: 27 September 2011 Catchwords: ADMINISTRATIVE LAW – judicial review of recommendation decision of first respondent – whether no evidence to justify decision – whether construction of item in Ministerial Determination meant that no evidence was available – on true construction of determination, evidence available to support decision – application dismissed
STATUTORY INTERPRETATION – Ministerial Determination – meaning of ‘legal right to occupy proposed premises’ as at certain dates – whether signed lease which commenced after those dates was a ‘legal right to occupy’ – interpretation of ‘proposed’ – applicant had legal right to occupy proposed premises at relevant dates
Legislation: Acts Interpretation Act 1901 (Cth) s 15AB
National Health Act 1953 (Cth) ss 90, 99K, 99L
National Health (Australian Community Pharmacy Authority Rules) Determination 2006 ss 6, 6A, 9, Sch 2Cases cited: Commonwealth of Australia v Horsfall (2010) 115 ALD 344 considered
Momcilovic v The Queen [2011] HCA 34 applied
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 followed
Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 consideredDate of hearing: 14 September 2011 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 40 Counsel for the Applicant: Mr D Favell Solicitor for the Applicant: Gadens Lawyers Solicitor for the First and Second Respondents: Australian Government Solicitor Counsel for the Third Respondent: Mr M Plunkett with Mr A Hoare Solicitor for the Third Respondent: Esplins Solicitors FEDERAL COURT OF AUSTRALIA
Hallgath v Australian Community Pharmacy Authority (No 2) [2011] FCA 1074
CORRIGENDUM
1.In paragraph 38 of the Reasons for Judgment, in the last sentence after the words “application is made” the following should be added “and the time it is decided”.
I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 27 September 2011
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 222 of 2011
BETWEEN: KENNETH HALLGATH
ApplicantAND: AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
First RespondentTHE SECRETARY OF THE DEPARTMENT OF HEALTH AND AGEING
Second RespondentCKK SERVICES PTY LTD ACN 151 255 060
Third Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
14 SEPTEMBER 2011
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The application as amended is dismissed.
2.The applicant is to pay the third respondent’s costs of and incidental to the application to be taxed if not agreed.
3.Liberty to apply in respect of costs is reserved to the first and second respondents. Any such application must be filed within seven (7) days from today. The application must also be accompanied by an outline of submissions of no more than two (2) pages together with any supporting affidavit.
4.In the event of any such application being made by the first and second respondents, the applicant is to file an outline of submissions of no more than two (2) pages together with such supporting affidavit, if any, as it may be advised within seven (7) days of the service on him of any application by the first and second respondents in respect of costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 222 of 2011
BETWEEN: KENNETH HALLGATH
ApplicantAND: AUSTRALIAN COMMUNITY PHARMACY AUTHORITY
First RespondentTHE SECRETARY OF THE DEPARTMENT OF HEALTH AND AGEING
Second RespondentCKK SERVICES PTY LTD ACN 151 255 060
Third Respondent
JUDGE:
LOGAN J
DATE:
14 SEPTEMBER 2011
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This judicial review application raises a short but neither unimportant nor easy issue in relation to the construction of an item in the second schedule to the Ministerial Determination made under the National Health Act 1953 (Cth) (National Health Act) by reference to which the Australian Community Pharmacy Authority (the Authority) is obliged to make recommendations, in respect of applications under that Act, with respect to the approval of premises for the supply of pharmaceutical benefits.
As noted, the Authority’s function is that of making recommendations. It makes recommendations to the Secretary of the Department of Health and Ageing (the Secretary). It is the Secretary’s role to decide whether to approve particular premises. The Authority and the Secretary are respondents to the application. Their stance though is that of abiding the order of the Court save in respect of costs. There is an active contradictor, the third respondent, CKK Services Pty Ltd (CKK Services).
The background to the application may be shortly stated. The applicant, Mr Hallgath, is a pharmacist who presently practices his profession from premises at Maclean in northern New South Wales. CKK Services has made an application for the approval under the National Health Act of premises at 60 River Street, Maclean.
There is no issue in the case as to whether Mr Hallgath is an aggrieved person for the purposes of judicial review standing nor is there any question as to whether the Authority’s recommendation decision is one amenable to judicial review.
CKK Services made its application to the Authority on 20 June 2011. The Authority decided to recommend approval on 29 July 2011. It is apparent from the Authority’s statement of reasons that, materially, it was satisfied that CKK Services met the requirement specified in item 201, para (a) in Sch 2 to the National Health (Australian Community Pharmacy Authority Rules) Determination 2006 (Ministerial Determination) as amended. It will be necessary to refer to the text of that item and the context in which it is found shortly.
The Authority’s reasons recite that it considered an executed lease for the proposed premises dated 20 June 2011. It was on the basis of that lease that the Authority was satisfied that CKK Services had on the date of application and the date on which the Authority made its recommendation decision had a legal right to occupy the proposed premises.
A copy of the lease concerned is in evidence. Regard to it discloses that the tenancy for which it provides is an initial term of three years, commencing on 1 August 2011. See clause G, item 2 on page 1 of the lease. It is material to note another feature of the lease, if only to explain one reason why it was in the interests of justice for this case to be heard and determined today. Item 25 in annexure A to the lease provides that:
A.This Lease is conditional upon the Lessee [ie CKK Services], prior to 31 October 2011, obtaining on terms acceptable to the Lessee:
(a)approval from the Australian Pharmacy Council and Medicare to operate a pharmacy at the premises with an approval number to supply pharmaceutical benefits under Section 90 of the National Health Act 1953;
(b)a positive recommendation from the Australian Community Pharmacy Authority for the operation or relocation of a pharmacy at the premises;
(c)…
Yet more material, in terms of the particular desirability of a prompt determination of the proceeding, is an agreement which CKK Services has with an existing pharmacist in relation to what is, perhaps inaptly, termed a sale of an approval. That agreement is subject to a condition which would permit CKK Services to terminate the agreement, but that right of termination expires on 28 September 2011.
The ground of judicial review which has come to be pressed arises from this somewhat terse statement of the background facts. The ground that is pressed is that the Authority had no evidence or other material upon which it could be satisfied that on the date of the application for approval, and on the date on which the Authority made its recommendation decision in respect of the application, the third respondent, CKK Services, had a legal right to occupy the proposed premises. From this is said to flow the proposition that the Authority had no power to make its recommendation decision.
Within the Ministerial Determination, s 9 materially provides:
When Authority must recommend approval of applicant
The Authority must recommend that an applicant be approved under section 90 of the Act in respect of particular premises if:
(a)for an application that involves the cancellation of an approval (the existing approval) that is in force in respect of approved premises (the existing premises):
(i)the application states that it is of a kind mentioned in column 2 of an item of Part 1 of Schedule 1; and
(ii)the requirements set out in column 3 of that item are met; and
(iii)the requirements set out in Schedule 2 and Part 1 of Schedule 3 are met; and
(iv)for an application described in column 2 of an item of Part 2 of Schedule 3 – the requirement set out in column 3 of that item is met; and
(b)for an application to which paragraph (a) does not apply:
(i)the application states that it is of a kind mentioned in column 2 of an item of Part 2 of Schedule 1; and
(ii)the requirements set out in column 3 of that item are met; and
(iii)the requirements set out in Schedule 2 are met.
[emphasis in original]
“Proposed premises” is a defined term for the purposes of the Ministerial Determination. Section 6 defines it in this way:
“Proposed premises”, in relation to an application means the premises at which an applicant proposes to supply pharmaceutical benefits.
The point raised by the application is that on the evidence before the Authority, and what is submitted to be the true construction of item 201 paragraph (a), the Authority could not, having regard to the lease which I have materially described, be satisfied that CKK Services had, as at 20 June 2011 and as at 29 July 2011, a legal right to occupy the proposed premises, namely, the premises the subject of that lease.
The construction of that item is by no means without difficulty. The case presented on behalf of Mr Hallgath could hardly be described as not reasonably arguable. When one looks to the language of the item, it has about it something of a quality of omission about it, in terms of leaving unanswered whether the right to which reference is made must be capable at the date of application and at the date of recommendation decision of being translated on each of those dates into an ability to occupy the premises on each of those dates.
There was agreement between Mr Hallgath and CKK Services that, whatever else item 201 paragraph (a) might mean, it did not require actual occupation of the proposed premises by the applicant for the approval on either of the specified dates. I agree that this is a feature of the construction of the item. To voice that agreement, though, leaves unanswered the question for decision today.
The Ministerial Determination is a legislative instrument not an act of Parliament. For all that, though, it falls to be considered not only by reference to the principles of construction found in the Acts Interpretation Act 1901 (Cth), but also by reference to more general principles of statutory construction.
In modern times, the definitive exposition of the approach to statutory construction has come to be regarded as that found in the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69], [70] and [71]. It is there stated under the heading “conflicting statutory provisions should be reconciled so far as is possible”:
69The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
70A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision and which must give way to the other.” Only by determining the hierarchy of the provisions will it be possible, in many cases, to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
71Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In the Commonwealth v Baume, Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that a sense is to be made upon the whole as that no clause, sentence or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent.
As recently as last week, in the course of his judgment in Momcilovic v The Queen [2011] HCA 34 at [441] – [442], Heydon J has reminded those charged with the construction of statutes of this rule of statutory construction, observing in so doing, at [441]:
Pursuant to the principle of legality, the common law of statutory interpretation requires a court to bear in mind an assumption about the need for clarity if certain results are to be achieved, and then to search, not for the intention of the legislature, but for the meaning of the language it used, interpreted in the context of that language. The context lies partly in the rest of the statute (which calls for interpretation of its language), partly in the pre-existing state of the law, partly in the mischief being dealt with and partly in the state of the surrounding law in which the statute is to operate. The search for “intention” is only a search for the intention revealed by the meaning of the language. It is not a search for something outside its meaning and anterior to it which may be used to control it.
To this might be added in respect of a legislative instrument such as the Ministerial Determination that context includes not just the Determination as a whole but also the statute pursuant to which it has come to be made and whose ends it is designed to serve.
So far as the statute is concerned, attention was drawn in the course of submissions on behalf of Mr Hallgath to s 90(3D). That subsection qualifies the discretionary power conferred on the Secretary by s 90(1) to approve, on the application by a pharmacist for approval to supply pharmaceutical benefits at particular premises, that pharmacist for the purpose of supplying pharmaceutical benefits at those premises. The qualification introduced by s 90(3D) is that:
The Secretary must not grant approval under this section to a pharmacist in respect of particular premises if the Secretary has satisfied that on or after the day the approval would otherwise be granted:
(a)the pharmacist would be unable to supply pharmaceutical benefits at the premises; or
(b)the premises would not be accessible by members of the public for the purpose of receiving pharmaceutical benefits at times that, in the opinion of the Secretary, are reasonable.
One basis upon which s 90(3D) might be engaged may be if the lease in respect of the premises expired as between the date of the Authority’s recommendation decision and the date upon which the Secretary came to decide whether to approve the pharmacist in respect of those premises. In that sense, it can be seen that the legislation admits of yet another temporal focus but that does not, in itself, offer any guidance as to how that particular qualification on the Secretary’s power either supports or denies the construction for which Mr Hallgath contends.
Again, looking to the text of the Act one might observe of s 99L that it does nothing more than confer on the Minister a power to determine rules to which the Authority is to have regard. The Authority’s functions, as specified in s 99K also do not provide contextual guidance as far the construction of the item 201 in the second schedule is concerned. Section 99K(1)(b) makes reference to particular premises, but there is nothing on the face of that reference which requires a right immediately to occupy the premises at the date of an application to the Authority or a date upon which the Authority makes its recommendation decision. Those requirements, truly, are but creatures of the Minister’s determination.
There is no authority directly on point. It is certainly possible to find, and counsel have found, examples of cases decided either in the Administrative Appeals Tribunal or in this Court which, on the facts, must have been decided differently if one or other of the competing constructions today was the true construction. I do not propose, though, to refer to these cases because in none of them was either the tribunal or the Court directly confronted with the contention made today on behalf of Mr Hallgath as to how item 201 ought to be construed. Each of them is truly distinguishable and not of assistance.
Reference, though, should be made to Commonwealth of Australia v Horsfall (2010) 115 ALD 344 (Horsfall). That is for two reasons. Firstly, at para 20 and para 21 of her Honour’s reasons for judgment, Katzmann J sets out the text of item 201 as originally formulated in the determination and as it came to be amended in 2007. It has been further amended since then in the way in which I have set out above. More particularly, the occasion for referring to Horsfall is the observation with respect to the 2007 version of item 201 found at para 76 of her Honour’s reasons for judgment. She there states:
I do not find it ‘bizarre’ that there are different time limits in respect of different criteria an application has to fulfil. In fact, this is entirely understandable. The amendments in 2007 to item 201 reflect a specific concern that pharmacists secure premises before lodging an application. One can imagine a number of reasons why this would be so, including the administrative problems that might arise if a pharmacist could apply and have the application approved without any certainty that she or he had premises from which to carry on business that could nonetheless block an application from another pharmacist who wished to set up business in the same area and who had secured premises to enable her or him to do so.
At the time, the wording of item 201(a) was, following the 2007 amendments, the same as at present. Other paragraphs of that item were subsequently amended. It was not necessary for her Honour in Horsfall to descend to any greater level of detail in her observations concerning item 201 because of the nature of the case before her. It is, though, necessary for me to descend to greater detail.
It is apparent from item 201 that paragraph (c) looks forward in time to a period which ends six months after the date on which the Authority makes a recommendation in respect of the application. In respect of that paragraph of item 201, the Authority has to undertake a predictive exercise. It must be satisfied that the applicant “will be able to begin operating a pharmacy at the proposed premises”. One basis, of course, on which the Authority might not be able to be so satisfied would be if the lease concerned did not, at least, commence the tenancy period within that six month period. I mention that because it does not seem to me that paragraph (a) of item 201 and paragraph (c) of item 201 are mutually exclusive in their potential application. There are many other factors, of course, which might intrude upon whether the Authority could be satisfied in terms of item 201(c). Nonetheless, it is not a feature of that paragraph of item 201 that an applicant pharmacist has an ability, as a matter of legal right, as at the date of the recommendation decision immediately to occupy, the proposed premises.
When one has regard to the term “proposed premises”, as defined in s 6, one sees that the adjective “proposed” in the term is a shorthand way of describing premises “at which an applicant proposes to supply pharmaceutical benefits.” In other words, the word “proposed” appears both in the adjective in the term as well as in its definition. Both the Oxford Dictionary and the Macquarie Dictionary give to the word “proposed” a meaning which is to put forward for consideration”. Thus, item 201(a) focuses upon whether, at the date of the application and on the date of the recommendation decision, the applicant, in respect of the premises put forward for consideration, has a legal right to occupy those premises.
Further, reading the item as a whole and recalling that putting forward for consideration dimension, one sees that part of that is a putting forward for consideration of premises that may not be occupied and may permissibly not be occupied for up to six months after the date on which the Authority comes to make its recommendation decision.
There is certainly no absurdity in the construction promoted on behalf of Mr Hallgath. It is possible to see why the ends of the National Health Act in relation to premises approval might be served by a construction which requires the Authority to know that the applicant at the time when the application is made and when it is decided can at each of those times occupy the premises. That is not, though, the only construction of which the language of the item admits. It is just as possible to see that the ends of the scheme for the approval of premises are served by the Authority having the assurance that the applicant does have, as at the two specified dates, a legal right to occupy the premises even though that right of occupation is prospective in its operation so far as the commencement of occupancy is concerned.
The latter construction has the advantage of operating in harmony with item 201, paragraph (c). The latter is not, in any way, concerned with an ability as at the date of application or date of recommendation decision immediately to commence operating a pharmacy at the proposed premises.
Important consequences flow, as I was reminded by counsel for Mr Hallgath, from a recommendation. Regard to s 6A of the determination discloses, the definition of “approved premises”, that a recommendation can have a blocking effect in respect of other applications. To acknowledge that, though, is not determinative of the construction for which Mr Hallgath contends.
Looking at the broader context of the scheme as a whole is not determinative one way or the other. As to that broader context, it is helpful to recall what was said of the scheme for the restructuring of the supply of pharmaceutical benefits in this country by Hill J in Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287 at 293 to 294:
The background of those provisions of the Act concerned with the making of recommendations to the Authority is to be found in an agreement reached in 1990 between the Government and the Pharmacy Guild of Australia, an organisation of employers registered pursuant to the provisions of the Industrial Relations Act 1998 (Cth), inter alia on the restructuring of the pharmacy industry in the form of rationalising the number of pharmacies. That agreement relevantly was given effect to by the Community Services and Health Legislation Amendment Act 1990 (Cth), which incorporated into the Act inter alia the provisions referring to the Authority. As the second reading speech of the then Minister for Aged, Family and Health Services, the Honourable Jim Staples, records:
For some time the Government has been concerned that there were too many pharmacies approved to supply pharmaceutical benefits.
In the result the Government ultimately accepted recommendations made to it that pharmacy numbers should be reduced by encouraging pharmacists to either amalgamate or close to reduce the number of inefficient pharmacies and to strengthen the more viable pharmacies that remained. Provision was to be made for closure payments and, where an amalgamation or closure payment was made, no approval in respect of the premises was to be granted unless certain approval criteria were met.
Two decades later the sequel to that particular policy initiative is to be found in the current Ministerial Determination and in the provisions of the Act as they have come to be amended. To note that, though, is to do no more than to acknowledge that then, as now, there remains in the legislation a scheme for regulating the number of approvals which may be given by the Secretary under the National Health Act. Then, as now, that scheme is, as the Determination makes plain, designed to ensure an efficient distribution of premises from which pharmaceutical benefits can be supplied. That this can be seen to be the purpose of the legislation and the Determination serving it does not, though, tell in favour either of the applicant or the respondent.
In the end I am driven to ask what is the more harmonious construction of item 201? There are many items in the schedules which have a temporal focus. The verb “are” appears repeatedly in items suggesting a focus on the present. It was put on behalf of Mr Hallgath that the language of item 201, paragraph (a) “has” was consistent with that focus on the present. To accept that, though, does not negate the submission made on behalf of CKK Services. CKK Services “has” a present legal right to occupy the proposed premises. It is just that as at the two dates specified in the item it could not then and there occupy the premises, but it had a legal right to occupy the premises.
It seems to me that a harmonious construction of the item is one which does no more than require a present legal right to occupy rather than a right immediately to occupy. I am left with the view that the construction put forward on behalf of Mr Hallgath does, in the end, require the introduction of words into the paragraph of item 201 which are not there and which are not necessary to insert to make sense or to give sensible operation in respect of that paragraph of the item. The item operates in a way which prevents the making of half-hearted or blocking applications if it is construed in the way for which CKK Services contend. It also operates harmoniously with paragraph 201(c) if it is so construed.
That is not to introduce into the language of paragraph 201(a) any six month requirement. All it is, is to construe the provision such that there must be a present legal right to occupy as at the two dates, but nothing more than that. In other words, it is not part of the language of item 201(a) that there be a right immediately on those dates to occupy those premises. The word “immediately” or even the sense of the word “immediately” does not appear in item 201(a).
I should, for completeness, observe that reference was made in the course of submissions on behalf of CKK Services to a handbook which the Authority has published for the guidance of pharmacists and others interested in its administration of that part of the National Health Act and the Determination by the Minister as to what is its view of item 201. It was properly conceded on behalf of CKK Services that this handbook did not form part of the secondary materials to which s 15AB of the Acts Interpretation Act 1901 (Cth) might permit reference. Rather, it was submitted that it had the status of a text to which reference might be made if it were thought of assistance. In the result I have not referred to the handbook in reaching the view that I have as to the construction of the legislation. It seemed to me preferable to reach a view myself rather than to have regard to the publication promoted by an emanation of the Executive Government after the event of the making of the Determination.
View of an emanation of the Executive Government to which I have had regard are the explanatory notes which were issued by the Minister when making the original Determination and in making the 2007 amendments to that Determination. There were no explanatory notes issued in respect of the amendments which are made to item 201 in its present form.
Though I have had regard to these explanatory notes, I mean no disrespect to the Minister’s concerned in observing that they do not deal expressly with the construction point which has fallen for decision today. It is not possible, of course, to anticipate every difficulty which might emerge in the future in relation to the language employed in a legislative instrument. I regard the explanatory note in respect of the 2007 amendment as neutral in terms of which construction one might prefer. It was that amendment which made item 201(a) in its present form.
The end result then from this survey of the Determination and the provisions of the Act is that there was evidence before the Authority by reference to which, upon the true construction of item 201(a), it was able to be satisfied that as at the date of the application and as at the date upon which it made its decision the applicant, CKK Services, had a legal right to occupy the proposed premises. The word “proposed” does indeed, have a role to play and that role is one which affords harmony as between the looking to the future aspect of paragraph (c) and the proposal which is made in respect of premises by the pharmacist. All that item 201(a) requires in respect of the proposal is that it be supported both at the time the application is made.
In relation to costs, CKK Services has sought an order for its costs against Mr Hallgath. There is no reason why the usual rule that costs follow the event should not apply in that regard.
As to the costs of the Secretary and the Authority, their stance has been, ever since the hearing of the interlocutory injunction application, that of abiding the order of the Court, save in respect of costs. CKK Services of course seeks no order for costs as against the Secretary and the Authority. The only question is whether or not to make an order in favour of the Secretary and the Authority in respect of costs. The Authority, though not the Secretary, appeared today. It is perhaps to be expected that a view as to costs might have been the subject of instructions from the Authority. Nevertheless, there was about today the possibility that, if only for a short time, judgment might be reserved to another day. Whilst given the stance that the Authority and the Secretary have taken, it is difficult to see why Mr Hallgath should bear their costs, my view is that the interests of justice are served by reserving to each of those parties liberty to apply within seven days from today for an order in respect of costs. As to those costs, and in any event, they would not include the costs of the preparation of a statement of reasons. The statement of reasons was one to which Mr Hallgath was entitled. All that occurred was that the time within which those reasons were prepared was necessarily accelerated to take account of the need for this case to be heard promptly.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 19 September 2011