Hodge and Hodge (No 2) - [2010] FamCAFC 241

FAMILY COURT OF AUSTRALIA

HODGE & HODGE (NO. 2)

[2010] FamCAFC 241

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – application for an extension of time to file a Notice of Appeal – where there is no adequate reason explaining the delay – where there is no substantial issue to be raised on appeal – consideration of the hardship or injustice to the parties – where the relevant factors and the justice of the case require the application to be dismissed.

FAMILY LAW - APPEAL – COSTS – where the applicant consents to an order for costs being made – where it is appropriate for the amount sought by the respondent to be reduced on account of the circumstances of a previous hearing.

Family Law Act 1975 (Cth)

Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr Hodge

RESPONDENT:

Ms Hodge

FILE NUMBER:

MLC

8545

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

23 September 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

23 September 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

4 June 2010

LOWER COURT MNC:

[2010] FMCAfam 551

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Hoult

SOLICITOR FOR THE RESPONDENT:

Kordell Lawyers

Orders

That the Application in an Appeal filed by the husband on 10 August 2010 be dismissed.
That the husband pay to the trust account of the wife’s solicitors the sum of THREE THOUSAND TWO HUNDRED DOLLARS [$3,200.00] by way of costs, such sum to be paid from the proceeds of sale due to be received by the husband pursuant to paragraph 2(ii) of the orders made by Reithmuller FM on 4 June 2010.

IT IS NOTED that publication of this judgment under the pseudonym Hodge & Hodge (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 54 of 2010
File Number: MLC 8545 of 2008

Mr Hodge

Applicant

And

Ms Hodge

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

This is a matter where the husband filed an application in an appeal on 10 August 2010 seeking that he be granted an extension of time to file a Notice of Appeal against orders made by Riethmuller FM on 29 April 2010 and 4 June 2010. There was an affidavit filed in support of that application. It is an affidavit of the husband’s then solicitor, Mr Stephen Canals, and I will come back to that.
The wife opposes the application and has filed a Response on 23 August 2010 together with an affidavit in support of that response.
The application initially came before me on 20 August 2010. Up to that time, Mr Hodge, the applicant, had been represented by Mr Canals and, indeed, counsel had been briefed to appear on that day. I do not need to repeat what happened on that day in that regard, that is set out in my reasons for judgment delivered at the time.
In the end result, I granted an adjournment to Mr Hodge for him to look at obtaining alternative legal representation and I also gave him leave to file any further affidavit that he was advised to.
Today Mr Hodge is still appearing in person, and Mr Hoult appears as counsel for the wife. The husband did take up though the leave that I granted in terms of filing an affidavit and that affidavit was filed on 14 September 2010. It is a lengthy affidavit which I have read and which Mr Hodge has taken me through today as well.
Now, just some further background facts. The proceedings in the court below were commenced in October 2008 and they were proceedings in relation to property settlement. The final hearing in relation to those proceedings took place before Riethmuller FM on 27, 28 and 29 April 2010. The wife was represented at that hearing but the husband was not. I will come back to the history of the husband’s legal representation in a moment.
At the conclusion of the evidence and the submissions on 29 April 2010 the federal magistrate made certain interim orders which provided as follows:
Orders 29 April 2010
1.      That within 7 days hereof the husband sign all documents and do all things necessary to transfer to the wife the real properties situate at and known as [Property P] in the State of Victoria Certificate of Title Volume […] Folio […] and [Property S] in the State of Victoria Certificate of Title Volume […] Folio […] ("the real properties") to be held on trust for sale and the real properties be forthwith sold altogether out of Court (“the sale”) and the proceeds of the sale be applied:-
(a)firstly to pay all costs, commissions and expenses of the said trust transfer and the sale;
(b)secondly to discharge any other encumbrance affecting the real properties;
(c)thirdly to pay the balance then remaining to the Solicitor's appointed to act in relation to the sale to be held in trust for the parties until further Order.
2.      That pending the completion of the sale:-
(a)the wife have the sole right to occupy the real properties and that during such right of occupation the wife pay all instalments pursuant to all rates and taxes and like apportionable outgoings of the real properties as they fall due;
(b)the parties hold their respective interests in the real properties upon trust pursuant to these Orders; and
(c)neither party encumber the real properties without the consent in writing of the other party.
3.      That as soon as practicable the wife obtain written recommendations from the Estate Agent or Agents appointed by her to act in relation to the proposed sales of the said properties, as to the most beneficial arrangements for the sale of such properties and to forthwith forward copies thereof to the husband and [A Hodge] at their current addresses or any new address notified in writing to the wife's Solicitors.
4.      That the wife be restrained from offering either or both of the said properties for sale for a period of 14 days from compliance with Order 3 AND that liberty be reserved to either party to apply to the Court for Orders with respect to or in relation to the said recommendations, provided any such Application be filed and served on the wife's solicitors within the said 14 day period and that if such Application is filed the restraint in this Order continue until further Orders of this Court.
5.      That the wife make available to the husband (by his agent, [A Hodge]) and that :-
(a)The husband cause to be removed the items numbered 1 to 19, 21 to 52, 54 to 104, 115, 116, 118 to 120 in Exhibit "DK.1" to the Affidavit of [Mr K] filed 18th March 2010 as amended, a copy of which is annexed hereto and marked with the letter "A", he be entitled to ownership and possession of such items and to the table and chairs formerly owned by his father and/or his parents together with all collectables in boxes or loose stored otherwise within a shed or sheds situated at [Property P] and that the wife be entitled to ownership and possession of the remaining items numbered 20, 53, 105, 110, 111, 112, 113, 114, 117, 121 to 130 in the said Exhibit together with the Pianola and Pianola rolls previously owned by the wife's mother and to the remaining contents furniture and chattels within the said property together with the one damaged figure forming part of item 97.
(b)That the husband cause to be removed from the said property the motor vehicles referred to the in the Affidavit of [Mr F] filed herein save for the motor vehicle acquired by the husband after 25th October 2005 which is not on the said property and which is to remain the property of the husband.
6.      That the removal of the items referred to in the preceding Order be effected on or prior to 5.00 pm on 27th June 2010 at the expense of the husband and be undertaken by the parties' daughter [A], her partner, her son, [M].
7.      In the event any of the items referred to in the two preceding Orders have not been removed from the said property by 5.00 pm on 27th June 2010 the wife shall be entitled to ownership and possession of all such items as remain on the said property and that she be entitled to sell or otherwise dispose of such items as she may determine from time to time, and that the husband forthwith sign all documents reasonably required to transfer to the wife the whole of his right, title and interest in any such motor vehicle remaining on the said property.
8.      That the wife forthwith do all necessary acts and things and sign all necessary documents to assign to the husband at the expense of the husband all her right title and interest (if any) in the 1927 Cowley Steamroller.
9. The Registrar or Deputy Registrar of the Federal Magistrates' Court of Australia at Melbourne is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute all deeds and/or instruments in the name of the husband and do all acts and things to give validity and operation to the deeds and/or instruments as are necessary for these Orders.
10.    That the question of costs be reserved.
His Honour then published his reasons for judgment on 4 June 2010 and made final orders. At that time, Mr Hodge was still unrepresented and he appeared by telephone. The wife was represented. The final orders that his Honour made were as follows:
Orders 4 June 2010
(1)    That the interim orders of 29 April 2010 take effect as final orders.
(2)    That the proceeds of the sales of the real property pursuant to Order 1 of the interim orders of 29 April 2010 be distributed as follow:
(i)Payment of the sum of $31790.20 to the wife;
(ii)Payment of 40% of the balance of the proceeds (after payment pursuant to suborder (a)) to the husband;
(iii)Payment of the balance of the proceeds to the wife.
(3)    That unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:-
(i)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and the like chattels at the real properties being deemed to be in the possession of the wife).
(ii)Monies standing to the credit of the parties in any joint bank account are to become the property of the wife.
(iii)Each party forgo any claims they may have to any superannuation or work related benefits belonging to or earned by the other.
(iv)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
The husband had 28 days under the Rules of Court to file an appeal against the orders made by the federal magistrate. He did not take advantage of that time period and as a result for him to pursue any appeal he needed to file an application seeking an extension of time and, as I referred to earlier, that is what he did. He filed an application on 10 August 2010.
The history of this matter between 4 June and 10 August is apparent in terms of the husband’s position from the affidavit of Mr Stephen Canals, to which I have referred to earlier. What Mr Canals tells me in that affidavit is that on 29 June 2010 he received a telephone call from the husband who was then an inmate at T Prison. Mr Canals had previously had general discussions with Mr Hodge’s daughter, A Hodge, shortly prior to and again subsequent to the hearing before the federal magistrate, namely the hearing at the end of April. At that time, namely on 29 June, Mr Canals says that the husband instructed him that he wished to appeal the decision of the federal magistrate and Mr Canals asked to be provided with further information and documents and the husband’s further instructions in writing.
Mr Hodge apparently sent the relevant documents and written instructions to Mr Canals and Mr Canals says on 13 July he had, what he describes, as a further lengthy telephone conversation with Mr Hodge regarding an appeal, and he provided the husband with certain advice. Mr Canals raised the issue of needing funds to be put into his trust account to be able to pursue the appeal and on 27 July he was provided with those funds and also further written instructions in relation to the proposed appeal. It was then that Mr Canals prepared documents in relation to the proposed appeal.
I assume what he is referring to there is the Application in an Appeal and the affidavit which were both filed on 10 August 2010. In addition, annexed to Mr Canals’ affidavit is a Draft Notice of Appeal, obviously drawn on instructions from Mr Hodge as well.

The law

In terms of the law that applies to this application, it is well settled. The relevant principles are conveniently set out in the High Court decision of Gallo v Dawson (1990) 93 ALR 479 and I particularly refer to what McHugh J said at 480:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
Those principles have been followed in a number of Full Court decisions of this court including, for example, Tormsen and Tormsen (1993) FLC 92-392. In addition, there have been other factors not specifically mentioned by McHugh J but impliedly included in the matters that he did touch upon and which have been amplified in other Full Court decisions of this Court. I refer, for example, to a Full Court decision of McMahon and McMahon (1976) FLC 90-038.
In summary, taking what I can from the High Court decision and the Full Court decisions of this Court, the relevant factors that need to be addressed would appear to be as follows:
§the history of the proceedings;
§the conduct of the parties;
§the nature of the litigation;
§the extent of any delays;
§whether there are adequate reasons which explain any delay;
§the prospects of the applicant succeeding in an appeal;
§if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise; and
§the consequences for the parties of the grant or refusal of the application.
However, as the Full Court in Tormsen observed, and as is apparent from what McHugh J said in Gallo v Dawson, these factors are to be considered in the context of determining what the justice of the case requires.

Discussion

I have already referred to the sequence of events in terms of husband’s position following the delivery of judgment, and perhaps I can address the issues of the extent of the delay and the reasons for the delay first. The extent of the delay is obvious from the chronology to which I have referred.
There are in fact two delays. One is that the right to appeal commenced upon delivery of judgment and that making of the orders on 4 June 2010. As I understand it from the documents in the file, and I will come to that if necessary, the husband, of course, attended by telephone when his Honour delivered his reasons and made the orders but, from the husband’s own material, he received copies of those reasons and the orders on or about 7 June. Now, the 28 days that he has to appeal would have expired in early July. He did not file a Notice of Appeal in that period of time. Thus that is the first delay that I need to look at.
In terms of any explanation for not filing the Notice of Appeal within time, there is none. There is nothing in the affidavit of Mr Canals, and there is nothing in the further affidavit of Mr Hodge filed on 14 September 2010. All I know from Mr Canals’ affidavit is that, both before the hearing and immediately after the hearing, the husband’s daughter spoke with Mr Canals. I imply from that, spoke with him about the question of an appeal but it was not until 29 June 2010, that Mr Canals received a telephone call from the husband raising the question of an appeal.
There is no explanation in any document that Mr Hodge has put before me to explain the delay between receiving the documents and contacting Mr Canals. I should also mention that the wife, in her affidavit filed on 23 August 2010, tells me, in paragraph 24, that “at the conclusion of the phone mention on the 4^th of June 2010 the Applicant/Husband again”, and I will come back to that, “stated to the court that he intended to appeal.” The federal magistrate “then indicated to the Applicant Husband that he would make arrangements for his Associate to give the husband the appropriate Forms regarding the appeal.” The federal magistrate also “went into detail seeking to ensure that the Applicant Husband understood that the Appeal time was limited.”
Now, what the wife is referring to in terms of saying that again the husband stated to the court that he intended to appeal refers back, for example, to paragraph 22 where the wife deposes:
At the Hearing on the 29^th April I was present when the Applicant/Husband indicated to the Court that he would not comply with any Orders made and that intended to appeal Orders that were made.
Thus it is quite apparent to me that the husband well understood the time limits that applied to an appeal and the federal magistrate went to some lengths to explain all that to him and to indicate that he would be provided with the relevant documents to enable him to pursue an appeal. In my view that is quite significant.
After the first contact with the lawyer by Mr Hodge on 29 June, it then took until 10 August for anything to be filed. Obviously, the balance of the time left to file a Notice of Appeal went quite quickly, but between early July and 10 August nothing was filed. Again, there is no explanation for that in any document filed on behalf of Mr Hodge. What I imply though, obviously from Mr Canals’ affidavit, is that he, not unnaturally, needed information and documentation from Mr Hodge, he needed his specific instructions, he needed them in writing and he needed funds. Perfectly understandable but, of course, the situation is that as each day went by, that added to the delay. There was though no explanation as to why, for example, an Application in an Appeal could not have been lodged initially with a view then to filing further affidavit material subsequently.

Thus, although it is suggested that the delay was not lengthy and, indeed, Mr Hoult in his submissions conceded that, comparatively speaking, the delay was not lengthy, as Mr Hoult has rightly pointed out, there are rules setting time limits and they are there for a reason and any delay is still a delay and cannot just be swept under the carpet. What concerns me in this case is the lack of adequate explanation as to the reasons, firstly, for not filing a Notice of Appeal in time and, secondly, not filing an application for an extension of time within a reasonable period of time.
The nature of the litigation. There is nothing that I need to dwell upon in relation to that factor. As I said, the litigation involved property settlement and there is nothing that I take from that which would impact upon whether I should or should not grant an extension of time.
With the history of the proceedings and the conduct of the parties, that is set out in some detail in the wife’s affidavit filed on 23 August 2010. That reveals a history of orders being made, non-compliance with these orders by the husband, and consequent delays in listing the final hearing.
I observe, significantly that from 5 November 2008, when the wife filed her application in the matter, Mr Hodge was represented by Mr Michael Reid, solicitor.
He was represented by Mr Reid up until March 2010 and indeed on 12 March 2010 there was a phone mention, when Mr Reid appeared on behalf of the husband, and reading from the wife’s affidavit, paragraph 15:
Orders were made on that day providing that should the Applicant/Husband continue to fail to comply with Directions that the matter would proceed undefended. A further Notation was made that Mr. Michael Reid intended to serve a Notice of Intent to Withdraw, he further advised the Court that the husband had been psychiatrically assessed and that he was deemed capable of giving instructions.
In fact on 25 March 2010 Mr Reid served a Notice of Ceasing to Act and a Notice of Intention to Withdraw as a lawyer.
Now, bearing in mind that the hearing was set to commence on 27 April the wife’s affidavit further tells me that on 14 April a letter was sent to the associate of the federal magistrate by the husband’s daughter, in effect seeking an adjournment indicating that another solicitor had been spoken to, and that was Mr Canals, seeking that he represent the husband.
On 23 April there was a telephone mention before the federal magistrate in which the husband sought to adjourn the final hearing. That application was denied, and it was noted that the husband had had considerable time to file material, but had failed to do so. Then the matter proceeded to a final hearing on 27, 28 and 29 April.
It seems to me that that history as contained in that affidavit is relevant to consider in terms of the husband now coming to this Court and seeking an indulgence in his favour.
I next turn to the prospects of the applicant succeeding in an appeal. Mr Hoult has submitted that there is nothing that the husband has put before this Court, either in any document or any submission which would indicate that there is a substantial issue to be raised on appeal, and Mr Hoult has rightly pointed out that the judgment delivered is a discretionary judgment and there are many authorities which indicate what needs to be established to succeed on an appeal against a discretionary judgment. Mr Hoult has also referred me to the obvious circumstance that the trial judge, in this case, the federal magistrate, is in a unique position of being able to assess the parties, because he has them before him and that is an advantage that this court does not have.
In the Draft Notice of Appeal annexed to Mr Canals’ affidavit, there are a number of grounds of appeal set out, namely:
1. As to the Order 29 April 2010:
a.The applicant’s request for an adjournment of the proceeding to obtain legal representation was denied.
b.The Presiding Federal Magistrate was in error in accepting and relying upon oral and affidavit evidence of the respondent which was contradicted by the applicant resulting in incorrect findings of fact including but not limited to valuation evidence.
c.The Presiding Federal Magistrate made findings of fact which could not be supported by the evidence.
d.The Presiding Federal Magistrate exercised his discretion to arrive at an incorrect decision.
e.The delay in filing Notice of Appeal is not excessive and will not caused prejudice to the respondent.
f.The applicant respectfully reserves the right to file further grounds after review of the transcript.
2. As to the Order 4 June 2010:
a.The distribution of property in paragraph (2) thereof is not a just and equitable distribution of property between the parties and cannot be supported by the evidence.
I am somewhat perplexed by those grounds of appeal, because one of the primary issues that the husband brings to this matter today is his claim that the wife has committed perjury. And indeed, in a letter which is annexure MH12 to the affidavit of the wife, which is a letter from the husband to the wife dated 26 July 2010, wherein he advises the wife that he has instructed his lawyer to institute an appeal, he confines it to, and I will read from it:
… to appeal F.M. Reithmuller’s [sic] final report, on the grounds of admission of perjury by [the wife].
However, as Mr Hoult has identified, there are other matters that the husband now complains of, apart from this issue of perjury, which I will come back to in a moment, and that includes a complaint as to how the federal magistrate dealt with the husband’s mental health issues. The husband complains that the federal magistrate has made a number of factual errors, but again the primary focus of the husband, both in his written material and in his submissions today is this issue of perjury by the wife. Indeed, as he put to me on the 26 August and again today, what he really wants to happen is that this matter be adjourned until there is an outcome from his complaint to the police seeking that the wife be charged with perjury. Now, I can say at this point that there is no basis whatsoever to adjourn this application for that reason or any other but it gives an indication of the agenda that Mr Hodge has and that is also highlighted by the affidavit that he has recently filed. It is a lengthy and prolix affidavit annexing all sorts of material, but not addressing the particular factors directly that I have to take into account, save and except that he has taken the federal magistrate’s reasons for judgment and highlighted and pointed out where he says the federal magistrate has made a factual error. What Mr Hodge perhaps does not appreciate though is that I am not in any position today to make any finding as to whether the federal magistrate made a factual error or not.
For my part, and doing the best I can from where I sit, namely looking at the grounds of appeal in the proposed Notice of Appeal, reading the affidavit material, reading the judgment of the federal magistrate, although I cannot be definitive as to the success or otherwise of an appeal, there is certainly no substantial issue to be raised on appeal, and I have serious doubts as to whether there is any issue to be raised on appeal at all. The issue of perjury and alleged corruption are simply red herrings.
Turning to the next factor, namely, is there any hardship or injustice to the respondent which cannot be compensated for by orders for costs or otherwise. And in this context can I also bring in the consequences for the parties of the grant or refusal of the application. The situation is that if I grant the extension of time then Mr Hodge would be able to pursue his appeal. There would be further documentation from Mr Hodge. The wife would need to respond to that appeal in the sense of joining issue. There would be further hearings, and there would be the need for documents to be prepared by both parties in the lead up to the appeal and the appeal would be heard some time next year.
The wife of course has the benefit of what I consider to be a well reasoned judgment of the federal magistrate. And as was said by McHugh J it is necessary to bear in mind that the wife in this case has a vested right to retain the judgment. She is entitled to the fruits of that judgment. And bearing in mind this is not in the context of hearing an appeal against that judgment, it is in the context of the husband seeking that I exercise my discretion to allow him to proceed with an appeal when he is out of time, and when there is no adequate explanation for why he is out of time and where there is no substantial issue that I can find to be raised on appeal.
Thus there is significant prejudice, if you like, to the respondent if I grant the application, and in my view that is not a prejudice which can be compensated for by orders for costs. There is also an extra element here, which is touched upon in the wife’s affidavit, and that is the circumstances surrounding where she lives at the moment, the prospect of the husband being released from prison in 2011 and the wife not wanting the husband to know where she is, for reasons which relate to the offence in respect of which Mr Hodge is currently serving an extensive term in prison. In my view that issue is a relevant one as well. It is not in any sense a definitive issue, but it is one of a number of factors which are relevant to my decision in this case.
I need to also address the consequences for the husband of not granting the application. If I do not give an extension of time then Mr Hodge cannot appeal against the federal magistrate’s orders. Equally, there is no appeal from the decision I make. He would be entitled to seek special leave to appeal to the High Court, but that it is not an easy process. That is a significant consequence, and one that I need to take into account and balance in the exercise of weighing up the competing factors.
As I said earlier, any consideration of the factors that I have mentioned has to be looked at in the context of determining what the justice of the case requires. Thus there is an overarching principle, obviously informed by the factors to which I must have regard. In my view not only do the factors all point towards a dismissal of the husband’s application, but that is also what the justice of this case requires. Thus in all the circumstances, I propose to dismiss the application.
Now I have before me an application by the wife for costs. The amount sought is $5000 comprising two appearances by counsel, each in the sum of $1800 and $1400 for solicitor’s fees.
Mr Hodge was initially prepared to consent to an order in the terms sought to get the matter over with. In further discussion though, I have indicated that I would be receptive to reducing the costs sought to take into account the circumstances of the previous hearing. On that basis, Mr Hoult indicated that he would only seek the amount of $3200. It seems to me that that is an appropriate course to take.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 23 September 2010.

Associate:

Date: 3 December 2010