Helm v Sapphireone Pty Ltd (No 2)
[2024] FedCFamC2G 21
•19 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Helm v Sapphireone Pty Ltd (No 2) [2024] FedCFamC2G 21
File number(s): SYG 2940 of 2020 Judgment of: JUDGE LAING Date of judgment: 19 January 2024 Catchwords: INDUSTRIAL LAW – COSTS – application for costs pursuant to s 570 of the Fair Work Act 2009 (Cth) following a successful summary dismissal application some years into the proceedings – discretionary considerations – where some unreasonable conduct was found, but impact on costs was likely to have been limited – where it was not unreasonable for the summary dismissal application to have been opposed – costs application dismissed Legislation: Fair Work Act 2009 (Cth) s 570
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.04 and 13.05
Cases cited: Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879; (2007) 162 FCR 392
Calderbank v Calderbank [1976] Fam Law 93; [1975] 3 All ER 333
Helm v Sapphireone Pty Ltd [2023] FedCFamC2G 915
Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353
Murphy v Innovior Pty Ltd (No 2) [2021] FCCA 258
Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Ryan v Primesafe [2015] FCA 8; (2015) 323 ALR 107
Sagona v R & C Piccoli Investments Pty Ltd (No 2) [2014] FCCA 2925
Traverse Alpine Operations Pty Ltd v Simpson [2022] FCA 1365
Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190
Number of paragraphs: 44 Date of hearing: 13 December 2023 Place: Sydney Solicitor for the Applicant: Ms P Forster of Kennedys Law Counsel for the Respondents: Mr N Furlan Solicitor for the Respondents: Sasphire Legal ORDERS
SYG 2940 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LINDA MAXINE HELM
Applicant
AND: SAPPHIREONE PTY LTD (ACN 003 419 930)
First Respondent
JOHN WILLIAM ADAMS
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
19 JANUARY 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 26 October 2023 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The substantive application in this matter was dismissed on 6 October 2023 pursuant to rr 13.04(1)(e) and 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCA Rules): Helm v Sapphireone Pty Ltd [2023] FedCFamC2G 915 (Judgment). The respondents in the substantive proceedings (respondents) seek costs from the applicant in the proceedings (applicant), pursuant to s 570(2) of the Fair Work Act 2009 (Cth) (FW Act).
For the following reasons, I am not persuaded that I should depart from the usual position in proceedings under the FW Act, being that each party bears their own costs.
PRINCIPLES
Section 570 of the FW Act provides:
Costs only if proceedings instituted vexatiously etc.
(1)A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A.
Note: The Commonwealth might be ordered to pay costs under section 569. A State or Territory might be ordered to pay costs under section 569A.
(2) The party may be ordered to pay the costs only if:
(a)the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or
(b)the court is satisfied that the party’s unreasonable act or omission caused the other party to incur the costs; or
(c) the court is satisfied of both of the following:
(i)the party unreasonably refused to participate in a matter before the FWC;
(ii) the matter arose from the same facts as the proceedings.
The discretion to award costs under s 570 of the FW Act is to be exercised with caution, recognising its exceptional nature in an otherwise no-costs jurisdiction. In Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190, it was stated at [8]:
8.Section 570 of the FW Act confers discretion on the Court to order costs in Fair Work matters where proceedings were instituted vexatiously or without reasonable cause. Not only must this discretion be exercised judicially according to the terms defining it, it must be exercised with caution because of the exceptional nature of the power in an otherwise no-costs jurisdiction. The case for its exercise should be clearly demonstrated: Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6]. As Mortimer J observed (correctly, in our opinion) in Ryan v Primesafe [2015] FCA 8 at [64]:
The reason for caution is the potential for discouraging parties’ pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. Insofar as it operates to the benefit of respondents, it is designed to ensure respondents feel free to pursue arguable legal and factual responses to the claims made against them.
However, s 570 is not a “a licence to parties to ignore the requirements” of the Court’s case management provisions: see Ryan v Primesafe [2015] FCA 8; (2015) 323 ALR 107 (Ryan) at [66]. The reconciliation between access to justice provisions such as s 570(1) of the Act, and the parties’ obligations to assist the Court with its case management obligations, “occurs through a focus on the reasonableness of parties’ conduct, the appropriateness of the Court processes undertaken by them, the timeliness of their compliance with Court orders or steps in the proceeding, and the existence of a substantive legal and factual basis for the claims made and arguments put”: Ryan at [66].
The Court may only make an order for costs if one of the preconditions under s 570(2) of the FW Act are met. Even where this is the case, the award of costs remains a matter within the discretion of the Court: see Ryan at [68] and Murphy v Innovior Pty Ltd (No 2) [2021] FCCA 258 at [25].
APPLICATION
By an Application in a Proceeding filed on 26 October 2023, the respondents seek orders:
(a)that the applicant pay their costs of the proceedings on an indemnity basis (or alternatively an ordinary basis) from 21 March 2022, or alternatively 22 April 2022, 29 April 2022 or 4 May 2022; or
(b)in the alternative, that the applicant pay their costs of and incidental to the Application in a Proceeding filed on 21 August 2023 (Dismissal Application) on an indemnity basis (or alternatively an ordinary basis).
The following evidence was relied upon by the respondents in support of the application:
(a) an affidavit of Dean George Tolkin (Mr Tolkin) affirmed on 11 May 2023 (Tolkin I);
(b)an affidavit of Mr Tolkin affirmed on 21 August 2023 (Tolkin II);
(c)an affidavit of Mr Tolkin affirmed on 26 October 2023 (Tolkin III);
(d)an affidavit of Mr Tolkin affirmed on 29 November 2023 (Tolkin IV); and
(e)a bundle of documents produced by the applicant in the proceedings.
The respondents’ primary position
The respondents’ primary position is that the applicant ought to be required to pay their costs from various dates in 2022. Those dates coincide with dates around which settlement offers were made by the respondents (Tolkin III at pp. 26-43).
There are difficulties with accepting the respondents’ contention that the applicant behaved unreasonably in not accepting those offers. Firstly, as the applicant submitted, it may be difficult to demonstrate that she unreasonably refused offers forming part of the course of negotiations that resulted in increased settlement offers on the part of the respondents over a relatively confined period, culminating in the parties’ agreement on 9 May 2022 that the 4 May 2022 offer of $100,000 (payable in instalments) was accepted.
Secondly, and more fundamentally, the application in this matter was not decided on the basis of its substantive merits. The application was dismissed for want of prosecution on the basis of the circumstances set out in the Judgment, which culminated shortly before and after the Dismissal Application was filed. It is therefore difficult for the respondents to establish that failure to accept those offers was unreasonable, from the time that they were made or not accepted, more than a year earlier. As was observed in Traverse Alpine Operations Pty Ltd v Simpson [2022] FCA 1365 at [87]:
87.… Where offers of settlement are centrally relevant, the usual inquiry is whether a party acted unreasonably in not accepting one or more offers based on what was known or ought reasonably have been apparent at the time. It is not a retrospective inquiry.
There are cases where costs have been awarded by reference to unreasonable non-acceptance of settlement offers. There are cases in which, in the particular circumstances of those matters, courts have been willing to make costs orders notwithstanding that the matters did not proceed to any final determination on the merits.
Ordinarily, however, where a matter has not been heard on the merits, any costs application is to be determined in accordance with the principles identified by McHugh J in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 at 624-625 (Lai Qin). That is, the Court “cannot try a hypothetical action between the parties”, having been “necessarily deprived of the factor that usually determines whether or how it will make a costs order”. The Court may conclude that a party has acted unreasonably such that the other party should be awarded their costs. However, where this has not been demonstrated “the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings”.
I am not satisfied that the respondents have adequately demonstrated that the applicant’s conduct was unreasonable, at the dates relied upon under their primary position and without requiring the Court to try any hypothetical action between the parties.
The respondents contended that if the applicant had succeeded then her compensation would have ranged from $5,385 (worst case scenario) to $78,653 (best case scenario) in gross terms (not taking into account any taxation obligations on the part of the applicant). Within this context, it was submitted that the applicant’s rejection of the respondents’ settlement offers of $26,666.68 on 21 March 2022, $40,000 on 22 April 2022 and $70,000 on 29 April 2022 was unreasonable. Those offers were rejected, it was submitted, with counter offers being made that far exceeded any reasonable expectation that the applicant had for compensation.
There does seem to be some force to the respondents’ submissions regarding the likely maximum compensation that the applicant may reasonably have expected to have been awarded if she had been successful in the proceedings. However, ultimately, I have not been persuaded that it would be appropriate to make findings on the range of compensation that the applicant would have received for the purposes of the costs application. The matter did not proceed to a final hearing. The Court has therefore not had the benefit of fulsome evidence or arguments on this subject. The respondents further submitted that their willingness to treat the sums as “general damages” is relevant, as there would have been taxation advantages to this. I do not consider that I am in a position to make findings regarding the applicant’s taxation situation.
Even if I had accepted that the applicant’s best case scenario of compensation was $78,653, I would not have been persuaded that the rejection of the $26,666.68 offer on 21 March 2022, or the $40,000 on 22 April 2022, was relevantly unreasonable.
The 29 April 2022 offer occurred within the context of a disclosure dispute between the parties that led to adjournment of the trial in early May 2022 shortly thereafter. It was sent on the Friday of the week before the trial and was expressed to have only been open until 10:00 am the following day (a Saturday). It was swiftly overtaken by the 4 May 2022 offer of $100,000 that was made three business days after the 29 April 2022 offer. The 4 May 2022 offer of $100,000 was purportedly accepted by the applicant by email on 9 May 2022, subject to the matters identified by the applicant. Whilst the respondents contended this acceptance was ineffective, they also submitted that a settlement agreement was later reached on that date on the basis of the 4 May 2022 letter.
Having regard to the above, I am not persuaded that the applicant’s conduct up to 9 May 2022 warrants a finding that s 570(2)(b) of the FW Act is enlivened or, even if it were enlivened, an exercise of discretion resulting in the award of costs sought.
Contended unreasonableness following the settlement agreement
As I have observed, the respondents’ evidence indicates that on 9 May 2022, the applicant advised that the 4 May 2022 offer of $100,000 (payable in instalments) was “accepted subject to terms, releases and indemnities set out in the Deed being mutually agreed” (Tolkin III at p. 52).
The respondents submitted that this was not an effective acceptance due to, inter alia, its qualification. However, the respondents also submitted that the parties subsequently made a binding settlement agreement on 9 May 2022 of the kind referred to under either the first or the second category in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353.
In support of the latter contention, the respondents relied upon how the settlement agreement was represented to Judge Driver on 9 May 2022 (Tolkin III at pp. 56-57). The respondents’ Counsel informed Judge Driver that rather than an in-principle settlement, the parties had reached an “actual settlement” that was to be documented in a more formal document. This was agreed at the time by the applicant’s Counsel.
The respondents contended that this binding agreement was repudiated by the applicant. This was in circumstances where they had sent the applicant a proposed settlement deed on 20 May 2022, to which the applicant had not replied. The applicant had also not replied for some time to the respondents’ subsequent correspondence on 25 July 2022, in which the respondents had asserted that her lack of response was a repudiation of the settlement agreement, which was accepted, bringing the settlement agreement to an end (Tolkin III at pp. 60-73 and Tolkin I at p. 145). In correspondence sent to the respondents’ solicitors on 6 October 2022, the applicant’s solicitors had indicated that their client regarded the settlement as binding (Tolkin III at p. 84). However, at the subsequent directions hearing on 28 October 2022, the applicant’s representative had stated that the applicant did not intend to challenge that the settlement agreement had “fallen over” and that the matter should progress to a hearing (Tolkin III at pp. 107 to 108).
There appears to be some force to the respondents’ contentions that the settlement agreement was binding. However, I do not consider it necessary or desirable to determine for the purposes of the present application whether or not the parties entered into a binding settlement agreement in May 2022 or whether this agreement was repudiated by the applicant. These appear to be questions more suited to final determination of proceedings, rather than a costs application in which the Court is not to “try a hypothetical action” between the parties: Lai Qin at 624-625. In any event, for reasons that follow, I am not satisfied that their determination will result in any different outcome for the purposes of this application.
The respondents submitted that the applicant’s conduct was unreasonable by reference to the following chronology of events:
(a)the applicant at first rejected the 4 May 2023 offer on 6 May 2022 (by making a counteroffer);
(b)the applicant then purported to accept the offer on 9 May 2022 (by email sent prior to Court that day) but sought to qualify that acceptance in the same communication;
(c)the applicant and the respondents then agreed and told the Court that a settlement had been reached, an order to that effect was made and the trial was accordingly vacated;
(d) the applicant indicated to the Court on 9 May 2022 that it might take a bit of time to finalise the deed of settlement, possibly until 26 May 2022;
(e)the respondents performed the settlement agreement by sending the applicant’s solicitors a deed of release on 20 May 2022;
(f)the applicant then ignored the respondents’ settlement deed and in so doing conveyed a lack of intent to pursue settlement on the terms agreed;
(g)the applicant then ignored the respondents’ communication of 25 July 2022 suggesting that she had repudiated the settlement agreement;
(h)then, months later on 6 October 2022, the applicant’s solicitors indicated to the respondents’ solicitors that their client regarded the settlement as binding;
(i)the applicant then changed her position again at the 28 October 2022 directions hearing, and the Court was informed on that occasion that the case should proceed to trial; and
(j)the proceedings were ultimately dismissed in October 2023, in the circumstances detailed in the Judgment, following the applicant’s failure to prosecute them over a lengthy period.
The respondents submitted that the conduct of the applicant was unreasonable and caused the respondents to incur costs. They submitted that the applicant, in effect, threw away a settlement that would have resulted in her receiving more than her case was worth and that this behaviour was properly described as reckless.
The applicant submitted that the Court should not find that her conduct was unreasonable. She relied upon my finding in the Judgment at [31] that she had not technically breached orders made on 7 November 2022 and 18 May 2023, granting her leave to file and serve evidence and progress the disclosure application she had submitted would be necessary in order for her case to progress to a hearing. This is because those orders were expressed in permissive terms.
However, my reasoning at [31] of the Judgment was immediately followed by the following reasoning at [32]-[33]:
32.Of greater concern is the applicant’s failure to take meaningful steps to prosecute these proceedings. This is in circumstances after a hearing listed in 2022 was twice adjourned and then vacated in circumstances where a settlement agreement was indicated, which the applicant does not appear to have taken steps to follow through on. The further hearing scheduled in July 2023 similarly had to be vacated, in circumstances where the applicant had not downloaded material she had previously been provided, had not filed evidence in accordance with the timetable that had subsequently been sought, and had foreshadowed prosecuting a disclosure application that she submitted was necessary in order for her to prepare her case for hearing. The applicant then did not follow through on this and, instead, ceased engaging with the respondents and providing instructions to her legal representatives regarding further conduct of the matter.
33.A timetable was then set for the respondents’ proposed Dismissal Application. That timetable afforded ample opportunity for the parties to correspond regarding the future conduct of the matter, had the applicant have wished to prosecute it. Correspondence was also sent to the applicant by the respondents prior to the Dismissal Application being filed, observing that if the applicant did not respond then the respondents would have no option but to commence preparing the application in accordance with the timeframes that had been ordered. Costs would therefore be incurred, which may be sought from the applicant. The applicant nonetheless appears to have provided no response to this communication prior to today.
It is difficult to avoid a conclusion that the applicant’s conduct following the settlement agreement, as set out above, involved some level of unreasonableness. After not following through on taking steps to finalise a settlement the applicant informed the Court had been reached in May 2022, the applicant similarly did not follow through on the steps that she had indicated at listings in 2022 and 2023 were necessary to progress her case to a hearing. Hearing dates in May 2022 and July 2023 had been vacated in order to allow such steps to be taken. Due to the applicant ceasing to engage with the respondents and/or her legal representatives, the respondents were left with limited options other than to pursue the Dismissal Application. Whilst it may not have been unreasonable for the applicant to have ultimately opposed that application, she did so belatedly and in such limited terms that the Court was left with no confidence that she would meaningfully advance her case in any timely fashion if the matter were allowed to proceed. No clear proposal in this regard was provided to the Court, even in propositional terms, at the hearing of the Dismissal Application.
To the extent that the applicant relied upon her affidavit made on 6 October 2023 as addressing these issues, for the reasons given at [21] of the Judgment, that affidavit was incapable of adequately explaining the applicant’s approach to these proceedings. Although the affidavit stated that the applicant had ongoing medical issues following pelvic fractures sustained in February 2023, no independent medical evidence was provided in support of this. The affidavit did not explain how the medical and financial issues that she claimed had followed had prevented her from instructing her solicitors and/or responding to the respondents’ correspondence and Dismissal Application. This was also not explained by the balance of the affidavit, which referred generally to strain that had been placed upon the applicant’s mental health and wellbeing due to her medical issues as well as a further termination of full-time employment that she experienced in August 2023, following which she had only been able to secure part-time employment 3 days per week.
Having regard to the above, I am satisfied that the power to award costs in accordance with s 570(2)(b) of the FW Act is enlivened. The above described conduct of the applicant involved unreasonable acts or omissions which caused the respondents to incur at least some level of costs.
Discretion
The applicant contended that she would be unable to meet a costs order if it were made. The evidence relied upon in this regard was limited. She relied upon an affidavit made on 6 October 2023, by which she referred in general terms to having incurred costs associated with her medical difficulties. The affidavit referred to the applicant having difficulties in obtaining work from 26 September 2020 to 6 November 2021 and to her ability to obtain only part time work (3 days a week) after her redundancy in August 2023. The applicant also sought to rely upon a short affidavit made by her solicitor, Persephone Forster, on 17 November 2023 asserting that she had been informed and “verily believe[d]” that the applicant had not secured full-time employment since 6 October 2023.
The respondents put on evidence in response of title searches indicating that the applicant is the registered owner of two properties (albeit that appear to be subject to some level of mortgage).
I am not satisfied that I have sufficient evidence regarding the applicant’s financial circumstances to find that she would be unable to satisfy a costs order. In any event, I accept the respondents’ submission that impecuniosity is not usually regarded as a sufficient basis for not making a costs order.
For the above reasons, had the Dismissal Application not ultimately succeeded, I may have been inclined to have awarded the respondents their costs of and incidental to that application. This was the alternative form of orders sought in the present costs application.
However, the Dismissal Application ultimately succeeded. Looking at the circumstances of this case as a whole and from 9 May 2022, it seems that the main person that the applicant has injured through her approach to these proceedings has been herself. Whilst the respondents have undoubtedly incurred some costs in responding to her conduct, that conduct has resulted in the proceedings being concluded in a summary fashion. This has been without the respondents being put to the expense of a fully contested trial and without the respondents paying the applicant the amount that they had agreed to pay her in May 2022. Although the respondents may be expected to have incurred costs subsequent to that time, there is nothing to indicate that such costs exceed or even come close to approaching the amount that they have avoided paying her under the settlement agreement.
The respondents submitted that the fact that they are not necessarily worse off as a result of the applicant’s unreasonable conduct in not following through with the settlement agreement should not mean that they are not awarded their costs. They observed that the policy considerations regarding Calderbank v Calderbank [1976] Fam Law 93; [1975] 3 All ER 333 (Calderbank) offers encourage, as a starting point, a finding that costs should be payable where an offer is unreasonably refused and the refusing party then achieves a less favourable result. These submissions do have some force.
However, this is not a classic Calderbank case. This is not a clear case in which an applicant unreasonably refused an offer of settlement and then achieved a less favourable result. This is a case where a party accepted an offer of settlement and settlement appears to have been achieved, pursuant to which they were to be paid $100,000. Then, because of their conduct in not engaging with the respondents after the agreement (whether or not such a settlement was ultimately binding), the settlement fell over and the proceedings were subsequently dismissed for want of prosecution. The result has been that the respondents have potentially improved their position as a result of the applicant’s impugned conduct subsequent to the settlement agreement, as matters currently stand.
In any event, even if I accepted that the apparent improvement of the respondents’ position should not preclude a costs order being made by reference to the settlement negotiations in 2022, I must consider the steps that have been required in these proceedings on account of the applicant’s impugned conduct. The respondents have prepared a settlement deed, that they described at the hearing as containing nothing “exotic or unusual or out of the ordinary”. It appears to be fairly standard or pro forma in nature and it is not clear that the costs in doing so would have been particularly extensive. There has been some correspondence between the parties and with the Court after the settlement agreement. Again, this does not appear to have been particularly extensive. There have also been some directions hearings, which did not meaningfully progress the matter. Having regard to the limited nature of these developments, I would not have been inclined to have made what would be an exceptional award of costs pursuant to s 570(2) of the FW Act by reference to their occurrence alone. In any event, a costs order of this nature was not sought in the Application in a Proceeding filed on 26 October 2023. Rather, the respondents sought that their costs be payable from the specific dates that accorded with various offers of settlement, or that their costs of and incidental to the Dismissal Application be paid.
The most involved step that appears to have been taken since the May 2022 settlement agreement concerns the Dismissal Application. I accept that conduct on the part of the applicant leading to the making of that application may properly be described as unreasonable. However, the result has been the resolution of the proceedings on a relatively costs efficient basis for the respondents.
The alternative, reasonable, courses that were available to the applicant were continued prosecution of the proceedings or their discontinuance. The first alternative course may be expected to have resulted in greater costs being incurred on the part of the respondents, even if they were successful. I am not persuaded that it was unreasonable, in and of itself, for the applicant not to have pursued the second alternative course.
I am also not persuaded that it was unreasonable for the applicant to have opposed the Dismissal Application. She did not do so in a particularly effective manner, as has been detailed in the Judgment. However, I accept the applicant’s submission that “the pursuit of a contentious, and ultimately unsuccessful, argument is not an unreasonable act”: Australian and International Pilots Association v Qantas Airways Ltd (No 3) [2007] FCA 879; (2007) 162 FCR 392 at [36]; see also Sagona v R & C Piccoli Investments Pty Ltd (No 2) [2014] FCCA 2925 at [10].
Having regard to the above and to the circumstances of this case as a whole, on balance, I am not persuaded that I should exercise the discretion to make a costs order pursuant to s 570(2) of the FW Act.
CONCLUSION
For the above reasons, I am not persuaded that the justice of this case warrants a costs order being made under s 570(2) of the FW Act. The Application in a Proceeding filed on 26 October 2023 will therefore be dismissed.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 19 January 2024
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