Harris v Bryce

[1993] FCA 158

Re: TOM HARRIS
And: QUENTIN BRYCE, SEX DISCRIMINATION COMMISSIONER and HUMAN RIGHTS AND EQUAL
OPPORTUNITY COMMISSION
No. D G12 and 15 of 1992
FED No. 158
Number of pages - 21
Administrative Law
(1993) 113 ALR 726
(1993) 41 FCR 388
(1993) 30 ALD 833 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Administrative Law - sexual discrimination - joint Commonwealth and State project - project for improvement of education - whether project a "Commonwealth program" - decision to appoint Coordinator of project - nature of decision - whether made by officer of Commonwealth - whether reviewable under Judicial Review Act.

Sex Discrimination Act 1984,

Administrative Decisions (Judicial Review) Act 1977

Judiciary Act 1903

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1991) 109 ALR 490 at 491

HEARING

SYDNEY, 1-2 December 1992

#DATE 25:3:1993

Counsel for the applicant: T.J. Pauling QC with R.J. Webb

Instructed by: Solicitor for the Northern Territory

Counsel for the respondents: R.S. McColl

Instructed by: Bronwyn Scheelbeek

ORDER

THE COURT ORDERS AS FOLLOWS:

1. Applications dismissed.

2. Applicant to pay respondents' costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

MORLING J. The applicant was at all relevant times the Minister for Education for the Northern Territory. As such he was responsible for the planning, development and administration of education in the Territory.

1. In 1985 a proposal was made by the South Australian Minister for Education that the Commonwealth, Northern Territory, Western Australian and South Australian Governments should co-ordinate plans for the provision of education in Pitjantjatjara schools. Such schools are located in remote areas in the northern part of South Australia, the eastern part of Western Australia, and in that part of the Northern Territory in the general vicinity of Uluru.

2. In the years following 1985 there was much correspondence between the four Governments as to the desirability of, and means of implementing, the South Australian Government's proposals. It will be necessary to refer to this correspondence later in these reasons. On 27 July 1988 a document known as the Tri-State Ministerial Agreement was signed. The agreement provided, inter alia, for the appointment of a Tri-State Management Board which would appoint a Coordinator of the Tri-State project. Subsequently a person was appointed to the position of Coordinator and this appointment has given rise to the present proceedings.

3. Ms Claire Vallance applied for the position of Coordinator but her application was unsuccessful. She complained to the Sex Discrimination Commissioner ("the Commissioner") appointed pursuant to s 96 of the Sex Discrimination Act 1984 ("the Act"). The Commissioner wrote to the applicant notifying him of Ms Vallance's complaint that she had been discriminated against in that she had not been appointed to the position of Coordinator. The Commissioner stated that the complaint appeared to involve, inter alia, s 26 of the Act. Sub-section 26(1) provides, inter alia, that it is unlawful for a person who performs any function or exercises any power for the purposes of a Commonwealth program, to discriminate against another person on the ground of the other person's sex.

4. On 29 July 1992 the applicant's solicitors wrote to the Commissioner asserting that she was without jurisdiction to entertain Ms Vallance's complaint as the Tri-State Agreement was not a Commonwealth program within the meaning of s 26 of the Act. On 2 September 1992 the Commissioner wrote to the applicant's solicitor advising that she did not accept that she was without jurisdiction and that she was under a statutory obligation to enquire into Ms Vallance's complaint. She requested the applicant's solicitor to advise her whether the applicant would be prepared to resolve the matter by way of conciliation and stated that should the applicant consider conciliation was not possible she would consider referring the matter to the Human Rights and Equal Opportunities Commission for enquiry under Division 3 of Part III of the Act.

5. An application was thereafter made to this Court under the provisions of the Administrative Decisions (Judicial Review) Act 1977 for an order of review of the Commissioner's decision to enquire into the subject of Ms Vallance's complaint. The Commissioner has lodged a notice of objection to the competency of this Court to grant the application on the ground, inter alia, that the decision sought to be reviewed is not a decision to which the Administrative Decisions (Judicial Review) Act applies. In case it might be found that the Commissioner had not made a decision reviewable under the Judicial Review Act, the applicant has lodged an application under s 39B of the Judiciary Act 1903 seeking a declaration that the Commissioner is without jurisdiction to enquire into the decision not to appoint Ms Vallance to the position of Tri-State Coordinator. An injunction restraining the Commissioner from enquiring further into Ms Vallance's complaint is also sought.

The History of the Tri-State Project
7. During 1985 the Ministers for Education for the Northern Territory, Western Australia, South Australia and the Commonwealth agreed to meet to explore the possibility of cooperation in providing improved educational services to schools in the Central and Western Desert Area. The then South Australian Minister for Education, the Hon Lynn Arnold, undertook to initiate the planning for such a meeting. This initiative was subsequently assumed by the current South Australian Minister for Education, the Hon Greg Crafter. He requested Mr Paul Hughes, the Coordinator of Aboriginal Education in South Australia, to prepare a draft position paper to which the other Education Departments might respond. In April 1986 a discussion paper prepared by officers of the Education Department of South Australia was forwarded to the other Education Departments. This discussion paper was later revised to incorporate responses from the Education Departments of Western Australia and the Northern Territory and, in its revised form, was distributed to the participating Departments of Education in September 1986. The following recommendations were made in the discussion paper:

"5.1 That a preliminary meeting of senior officers with responsibility for Aboriginal Education be called as a first step to a meeting of State and Commonwealth Ministers' of Education (and perhaps TAFE) to clarify areas of cooperation and need, and establish a framework on which Ministerial agreements can be based. 5.2 That the State and Commonwealth Ministers' of Education (and perhaps TAFE) agree in principle to a trial period of cooperative venture such as has been described herein.

5.3 That a coordinating committee be established, as described to meet regularly several times a year to initiate, maintain and evaluate the programme, and that an executive group be established for more regular telephone contact.

5.4 That financial support for this committee be by delegation of state officers (with travel and accommodation allowances) from the cooperating departments and by additional funding from the Commonwealth through existing channels for Aboriginal and teacher personnel.

5.5 That clerical and executive services for the committee be by part time delegation of an officer of the Aboriginal Education Section of each cooperating state education department for a period of one or more years in rotation.

5.6 That allowance be made for direct access to Commonwealth funding for resources and professional development by this committee. 5.7 That although a Central Australian Aboriginal Education Authority is acknowledged as a remote possible end point of this proposal, plans for the immediate future must be limited to what can be achieved now by the cooperative use of existing resources. Such an Authority might best be the subject quite a different round of discussions."

1. The first formal meeting of the Department of Education officers from the Northern Territory, Western Australia, South Australia and the Commonwealth took place in Adelaide on 8-9 April 1987. The meeting recommended to the respective Ministers that cooperative arrangements would be enhanced by the setting up of a management structure such as a "tri-state cell" consisting possibly of an officer in charge, two education officers and clerical staff. It was suggested that this group would logically be located in Alice Springs. Task groups were established to gather information as the basis for possible future cooperation and sharing of education services.

2. A second meeting of departmental officers was held in Adelaide on 26 November 1987. It was recommended that a person should be appointed to conduct a pilot project. In February 1988 a recommendation was made to the respective State and Territory Ministers "that a formalized Tri-State initiative be undertaken with the establishment of a ManagementBoard and the appointment of a Project Coordinator." On 30 and 31 May 1988 representatives of the several Departments of Education met at Alice Springs. Representatives of the States and the Territory reported that their Governments were prepared to contribute $50,000 each per annum to the Tri-State project. A representative of the Commonwealth reported that funds for a 25% share of contribution would be made available in the 1988/89 budget and that the "case for a larger contribution would need to be looked at as the pilot proceeds." Options for the legal constitution of a Tri-State Board were discussed and it was decided that the preferred option was that: "The four participating Ministers jointly agree to support the tristate board and to engage its project staff as needed and in the interests of expediency." The procedure for appointing a Tri-State Coordinator was discussed as were the duties of the proposed appointee. The participating representatives adopted a report of their meeting. The report included the following:
   

"LEGAL IDENTITY OF PROPOSED TRISTATE INITIATIVES The interim tristate committee considered five options for the legal identity of proposed tristate initiatives till 31 December 1990. The Committee recommended that the legal basis of proposed initiatives

(sic) be a formal agreement signed by the four participating Ministers and where appropriate Departmental Heads.

TRISTATE PILOT PROJECT

The committee recommended that the participating Ministers fund on an equal shared basis for a period till 31 December 1990

(i) feasibility study to determine ways in which educational services and resources available from Commonwealth and State sources in the Central and Western Desert communitiies (sic) can best be cooperatively shared and developed;

(ii) the development of a joint strategy to put recommended arrangements in place;

(iii) the undertaking of a series of cooperative projects in order to trial and evaluate recommended approaches. The project was to be carried forward in full consultation with the Aboriginal communities concerned.

TRISTATE MANAGEMENT BOARD

The committee recommended that the participating Ministers appoint a tristate management board with details of functions and membership as outlined in Attachment A to have responsibility for oversighting the project, reporting at regular intervals to Ministers and for making final recommendations on future action for the consideration of Ministers.

COORDINATOR OF THE TRISTATE PROJECT The committee recommended that a Coordinator be appointed to carry out the pilot project under the direction and supervision of the proposed board. The position would be advertised nationally. Details of the proposed position are outlined as Attachment B.

The office of the Coordinator would be located in Alice Springs with general administrative resources being provided on behalf of the board by the Regional Office of the Northern Territory Education Department. Whatever support arrangements occur the project would have a clearly defined and recognisably separate identify belonging to the tristate agreement.

SPECIFIC TASKS FOR THE COORDINATOR OF THE TRISTATE PROJECT It was agreed that the emphasis for the early duties of the Coordinator should be on community consultation and that following appointment the Coordinator would attend briefing sessions with the proposed new board and the participating states and undertake an induction programme including a workshop with community representatives. The induction programme could cover aspects of survival skills for outback work and respect of customs."

1. The meeting agreed that a Tri-State management board should be established. It was agreed that its functions and composition should be as follows:
   

" TRI-STATE MANAGEMENT BOARD

Functions

While the Tri-State management board has no responsibility for the provision of actual education services a primary function is to prepare a range of recommendations to respective Ministers and departmental heads on the establishment of policies designed to ensure the provision of co-ordinated, high quality education services to Central an Western Desert communities through

1. Undertaking strategic educational planning for participation schools and communities;

2. Recommendations to achieve improved service delivery, rationalisation and co-ordination of specific services provided by participating Governments;

3. Recommending the georgraphical (sic) scope of Tri-State Agreements and subsequent variations;

4. Recommending strategies for pilot programs to increase the quality of the total education service delivery, such as o rationalisation and sharing of resources to maximise educational outcomes;

o development of common curricula, particularly in literacy and numeracy.

Composition

In determining the membership of the board the general principles of equal opportunities are to be observed.

One representative nominated by each of the following groups: NT Education Department,

SA Education Department,

WA Ministery (sic) of Education,

Commonwealth Department of Employment, Education and Training, National Aboriginal Education Committee,

NT Aboriginal Education Consultative Group,

SA Aboriginal Education Consultative Committee, WA Aboriginal Education Consultative Group,

Australian Teachers Federation,

and in addition, three community representatives including at least one from each of the Anangu Pitjantjatjara and Ngaanyatjarra Council. The board should comprise a majority of Aboriginal people. Frequency of meeting

The board shall meet at least twice a year. The representative of the National Aboriginal Education Committee shall convene and chair meetings of the board.

Operational and administrative services The NT Education Department shall provide operational and administrative services to staff working at the direction of the board in accordance with the tristate agreement."

1. On 22 July 1988 all the Ministers for Education signed the Tri-State Agreement. The agreement formally established the Tri-State Management Board, the position of Tri-State Coordinator. Each government agreed to contribute $50,000 for the first year of the Board's operation. The agreement provided for the funding of the Tri-State project until 31 December 1990. It was also agreed that the Northern Territory would have the responsibility for the administration of the project. Accordingly, Mr Geoffrey Spring, the Secretary of the Northern Territory Department of Education wrote letters on 7 September 1988 to the bodies entitled to be represented on the Tri-State Board inviting them to nominate their representative. Thereafter the position of Coordinator was advertised. The advertisement read, in part, as follows:
   

"The Ministers for Education of the Commonwealth, Northern Territory, South Australia and Western Australia have agreed to appoint a Co-ordinator to investigate and co-ordinate the delivery of education services to a number of Aboriginal communities in the Central and Western Desert border area of the Northern Territory, South Australian and Western Australia.

The Co-ordinator will be responsible to the Tri-State Management Board for investigating and reporting on tri-state benefits of sharing of educational resources and services, developing strategies for projects endorsed by the Board, piloting specific initiatives including arrangements for sharing school support services and personnel, preparing submissions for grant funding programs, providing quarterly progress reports and general status reports, appointing and supervising staff, and financial administration.

While the Tri-State Management Board has no responsibility for the provision of actual educational services, one of its primary functions is to prepare a range of recommendations to respective Ministers and departmental heads on the establishment of policies designed to ensure the provision of co-ordinated, high-quality education services. The Board will have a majority of Aboriginal members and will comprise representatives of the NT and SA education departments, the WA Ministry of Education, The Commonwealth Department of Employment, Education and Training, the National Aboriginal Education Committee, Tertiary and State Aboriginal Consultative community representatives, including at least one from each of the Anangu Pitjantjatjara and Ngaanyatjarra Councils. Applications are invited from suitably qualified and experienced persons for the position of Co-ordinator."

1. In November 1988 Mr Spring wrote to the Treasurer of the Northern Territory regarding the establishment of a trust account for the Tri-State project and, in due course, the Treasurer approved the establishment of the account. The administrative responsibilities for the Tri-State project have been undertaken by Mr Whitmore, an employee of the Northern Territory Department of Education.

2. In April 1989 an interim arrangement was made for an officer from the Northern Territory Department of Education to carry out a public relations exercise with the Aboriginal communities in the Tri-State area while the matter of the permanent appointment of the Coordinator was being considered. In May 1989 a consensus was reached among the Ministers on the appointment of a Coordinator and the appointee (Mr Geoffrey Iversen) took up his position the following month.

Action taken by the Sex Discrimination Commissioner
14. On 19 November 1991 the Commissioner advised the applicant that she had received a complaint from Ms Vallance under the Sex Discrimination Act against the four Ministers for Education who participated in the Tri-State project. She said she was required to investigate the complaint and, if possible, to attempt to resolve it through conciliation. The substance of Ms Vallance's complaint is that she had been advised informally that she was the successful applicant for the position of Tri-State Coordinator but had subsequently been advised that her application had been unsuccessful. Ms Vallance alleged that her application was not favoured by the Ministers because they believed the traditional elders of the Northern Territory communities would not deal with a woman. The Commissioner sought the applicant's comment on Ms Vallance's allegation.

1. The applicant's solicitor advised the Commissioner that Ms Vallance's allegation was denied. He asserted that the decision not to accept the recommendation of the interviewing committee that Ms Vallance should be appointed as Coordinator was not made in the performance of a function or the exercise of a power under a Commonwealth law or for the purpose of a Commonwealth program.

2. The Commissioner did not accept that she was without jurisdiction. Thereafter proceedings were commenced by the applicant challenging the Commissioner's decision to proceed to investigate Ms Vallance's complaint.

The application under the Administrative Decisions (Judicial Review) Act 1977
17. The applicant claims that the Commissioner has made a decision under the Sex Discrimination Act to enquire into Ms Vallance's complaint and that the decision is a decision to which the Judicial Review Act applies. Alternatively, it is submitted that the Commissioner is engaging, or proposes to engage, in conduct for the purpose of making a decision to which the Judicial Review Act applies. It is submitted, in the alternative, that the Commissioner has made other decisions, or is proposing to engage in conduct for the purpose of making other decisions, to which the Judicial Review Act applies. These decisions are said to include a decision taken by the Commissioner that she has jurisdiction to enquire into Ms Vallance's complaint.

1. Ms McColl, counsel for the Commission, submits that the decisions sought to be reviewed do not have the qualities necessary to makethem susceptible of review under the Judicial Review Act. She relies on Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. In that case Mason C.J., after observing that a reviewable "decision" is one for which provision is made by or under a statute, said (at p 337):
   

"That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s. 3(2)(g), the instances of decision mentioned in s. 3(2) are all substantive in character. Moreover, the provisions in sub-ss. (1), (2), (3) and (5) of s. 3 point to a substantive determination. In this context the reference in s. 3(2)(g) to 'doing or refusing to do any other act or thing' (emphasis added) should be read as referring to the exercise or refusal to exercise substantive power. I do not perceive in s. 16(1)(b) or in par. (e) of Sched. 1 or par. (a) of Sched. 2 to the A.D.(J.R.) Act any contrary implication. These exclusions from the A.D.(J.R.) Act or from s. 13 appear to have been introduced for more abundant caution and it would be unwise to take too much from them. If 'decision' were to embrace procedural determinations, then there would be little scope for review of 'conduct', a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the 'conduct' of the hearing in refusing an adjournment that is the subject of review. To treat he refusal of the adjournment in this way is more consistent with the concept of 'conduct' than with the notion of 'decision under an enactment'."

Brennan and Deane JJ. agreed with the views expressed by Mason C.J.

1. In my opinion there is substance in Ms McColl's submission. The decisions which are said by the applicant to be reviewable are not final or operative or determinative of any issue. Rather they are more properly described as conclusions or steps along the way in a course of reasoning leading to an ultimate decision which has not as yet been made, that is, a decision whether or not there has been a breach of the Sex Discrimination Act.

2. Moreover, the decisions sought to be challenged are not substantive determinations in the sense that they, of themselves, determine any person's rights: cf Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1991) 109 ALR 490 per Davies J at p 491.

3. Accordingly, I do not think the decisions sought to be reviewed are reviewable under the Judicial Review Act. However, I am of the opinion that the first respondent is an officer of the Commonwealth within the meaning of s 39B of the Judiciary Act 1903. This Court has power under s 39B to grant the relief sought against the Commissioner if it be found that she is without jurisdiction under the Sex Discrimination Act to enquire into the decision not to appoint Ms Vallance to the position of Tri-State Coordinator.

4. I therefore turn to consider the crucial question in the case, that is, whether the Commissioner has jurisdiction to enquire into Ms Vallance's complaint. The Commissioner contends that she has such jurisdiction because the applicant, as a participant in the Tri-state Agreement and as a party to the appointment of Mr Iversen as Tri-State Coordinator, was performing a function for the purposes of a Commonwealth program pursuant to subs 26(1) of the Act. It is further contended that the applicant had responsibility for the conduct of a Commonwealth program as provided for in subs 26(1).

5. Section 26 provides as follows:
   

"26. (1) It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program, or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person, on the ground of the other person's sex, marital status or pregnancy, in the performance of that function, the exercise of that power or the fulfilment of that responsibility.

(2) This section binds the crown in right of a State."

1. Unless the contrary intention appears from the Act, a "Commonwealth program" means "a program conducted by or on behalf of the Commonwealth government.": subs 4(1). The Act does not contain any definition of "program". Mr Pauling QC submits that the steps taken by the participating governments have not brought into existence anything which can be described as a Commonwealth program. He submits that the Tri-State project is not a Commonwealth program because the Commonwealth neither directs it, nor runs it. The Commonwealth's only involvement is, so he submits, to contribute to money towards the Tri-State program. He claims this does not make it a Commonwealth program or a program that is conducted on behalf of the Commonwealth.

2. I see no reason to confine the term "program" within narrow limits. It has been said that anti-discrimination legislation should be liberally construed: Waters v Public Transport Corporation (1991) 173 CLR 439 at 372 per Brennan J. And in Hough v Council of the Shire of Caboolture (10/11/92 - unreported) Spender J was careful not to circumscribe the concept of "program" so as to limit the operation of s 26 of the Act. I think the ordinary meaning of the word extends to cover the Tri-State Agreement. The proposal initially made by the South Australian Minister for Education in 1985 was not, of itself, a program. But the steps that were taken subsequently to develop that proposal led to the making of a formal agreement between the several governments and to the establishment of the Tri-State Management Board. The agreement of the governments to each contribute $50,000 for the first year of the Board's operations and to provide further funding for them gave the project real substance. The decision that the Northern Territory would have responsibility for the administration of the project and the decision to call for applicants for the position of Coordinator were clear indications that the participating Governments recognised that they had embarked upon a project for the provision of education in Pitjantjatjara schools. In my opinion, that project can fairly be described as a program for the purposes of subs 26(1) of the Act.

3. But the critical question is whether the program is a Commonwealth program. I have not found this question easy to answer, but I have come to the conclusion that the question should be answered in the affirmative. It is plain that the Commonwealth has a real interest in and commitment to the improvement of educational services to the Pitjantjatjara people. It is well within the Commonwealth's constitutional powers to join in and fund projects for the advancement of the educational standards of Aboriginals pursuant to its powers under s 51(XXVI) of the Constitution. It is true that the program is not exclusively a Commonwealth program. But the Commonwealth's participation in the program is no less than that of the other participating governments. The fact that the program is conducted on behalf of all four participating governments does not mean that it is not conducted on behalf of the Commonwealth government.

4. The phrase "on behalf of" has no fixed meaning. Its meaning must be determined having regard to the context in which it appears and the subject matter to which it has reference. See The Queen v Toohey; ex parte Attorney-General (NT) (1980) 145 CLR 374 at 386 and R v Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428 at 435 and 438. I agree with Ms McColl's submission that the words "on behalf of" in the definition of "Commonwealth program" are apt to include within the term a hybrid program where both Commonwealth and State purposes are pursued conjointly.

5. It is not without significance that s 26 binds the Crown in right of a State. The reference to a State includes the Northern Territory: s 4(1). It seems likely that the draftsman of s 26 contemplated that a State or Territory might be jointly involved in a program with the Commonwealth and that such a program would be a Commonwealth program for the purposes of the section. It is not uncommon for the Commonwealth and States and Territories to be jointly involved in programs of various kinds. I think subs 26(2) provides some indication that subs 26(1) is to have application to a program in which a State is involved with the Commonwealth.

6. Some guidance as to the correct approach to be taken in the present case may be derived from Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117. In that case all the members of the Court expressed the opinion (at 128 et seq) that members of the Coal Industry Tribunal and of Local Coal Authorities who were appointed to their positions pursuant to both Commonwealth and New South Wales legislation were officers of the Commonwealth. Their Honours said (at 127) that: "The Tribunal and the Local Coal Authorities derive their existence from the Commonwealth Act and from the State Act. They are, in short, joint Commonwealth and State authorities." And at 131 they said:
   

"In our view the persons who constitute the Tribunal and the Local Coal Authorities are officers of the Commonwealth and remain so notwithstanding that they exercise or purport to exercise power conferred by the State Act, even if the power being or purportedly being exercised is identifiable as power conferred by the State Act."

See also Joint Coal Board v Cameron (1989) 90 ALR 208p

1. By parity of reasoning, I think it can be said in the present case that the program to co-ordinate plans for the provision of education in Pitjantjara schools is a Commonwealth program notwithstanding that it is a program in which other governments participate.

2. For these reasons I do not think the Commissioner is without jurisdiction to enquire into Ms Vallance's complaint. Accordingly the applications under the Administrative Decisions (Judicial Review) Act and the Judiciary Act should both be dismissed with costs.

3. The Court orders as follows:
   1. Applications dismissed. 2. Applicant to pay respondents' costs.