Kornelis' Kunsthars Producten Industrie BV v WR Grace & Co-Conn
[1994] FCA 111
•15 MARCH 1994
KORNELIS' KUNSTHARS PRODUCTEN INDUSTRIE B.V. v. W.R. GRACE and CO. - CONN.
No. NG118 of 1992
FED No. 111/94
Number of pages - 11
Patents
(1994) AIPC 91-056
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BURCHETT J
CATCHWORDS
Patents - amendment - procedure governing "appeal" from the Commissioner under the transitional provisions of the Patents Act 1990 and reg. 23.4 - effect and application of s. 102 - interpretation of specification and of claims - effect of the context of the specification as a "dictionary" for the understanding of claims - effect of the expression "as is known per se".
Words and Phrases - "as is known per se".
Patents Act 1952, ss. 78 and 84
Patents Act 1990, ss. 40, 84, 102 and 234(2)
Patents Regulations 1991, reg. 23.4
International Business Machines Corporation v. Commissioner of Patents (1991) 33 FCR 218
NV Philips Gloeilampenfabrieken v. Mirabella International Pty Ltd (1993) 117 ALR 79
Decor Corporation Pty Ltd v. Dart Industries Inc (1988) 13 IPR 385
Electric and Musical Industries Ld. v. Lissen Ld. (1938) 56 RPC 23
AMP Incorporated v. Utilux Pty. Limited (1971) 45 ALJR 123
HEARING
SYDNEY, 24-25 June 1993
#DATE 15:3:1994
Counsel for the Applicant: Mr D.K. Catterns QC
Solicitors for the Applicant: Messrs Cutler Hughes and Harris
Counsel for the Respondent: Mr M.R.J Ellicott
Solicitors for the Respondent: Messrs Minter Ellison Morris
Fletcher
ORDER
The Court orders that the applicant bring in, on a date to be fixed, short minutes of orders in conformity with the reasons of the Court.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
BURCHETT J This matter comes before me, under s. 84 of the Patents Act 1952, as what is called an appeal from a decision of the Commissioner of Patents, although in reality it is in the original jurisdiction of the Court. In issue is whether the applicant should have been permitted to amend the complete specification after it had been advertised as accepted. The amendments sought to be made were refused by the Commissioner's delegate. Although by virtue of s. 234(2) of the Patents Act 1990 that Act applies to the patent application in question, the application to the Court has been brought under s. 84 of the 1952 Act because, by reg. 23.4 of the Patents Regulations 1991, the operation of s. 84 of the 1952 Act was preserved for cases such as the present. The substantial provisions governing the right to amend are, all the same, to be found in s. 102 of the Patents Act 1990.
Section 102, which is not significantly different from the old law contained in s. 78 of the 1952 Act, provides several tests to be applied to a proposed amendment of a complete specification. First, the amendment must not result in the specification as amended claiming "matter not in substance disclosed in the specification as filed". Secondly, an amendment made after the specification has been accepted must not have the result that "a claim of the specification would not in substance fall within the scope of the claims of the specification before amendment". Thirdly, such an amendment must not have the result that "the specification would not comply with subsection 40(2) or (3)". For convenience, I set out subss. (2) and (3) of s. 40, so far as relevant, and the whole of s. 102, as follows:
"40. (2) A complete specification must:
(a) describe the invention fully, including the best method known to the applicant of performing the invention; and
(b) where it relates to an application for a standard patent - end with a claim or claims defining the invention; and
. . .
(3) The claim or claims must be clear and succinct and fairly based on the matter described in the specification.
102. (1) An amendment of a complete specification is not allowable if, as a result of the amendment, the specification would claim matter not in substance disclosed in the specification as filed.
(2) An amendment of a complete specification is not allowable after the specification has been accepted if, as a result of the amendment:
(a) a claim of the specification would not in substance fall within the scope of the claims of the specification before amendment; or
(b) the specification would not comply with subsection 40(2) or (3).
(3) This section does not apply to an amendment for the purpose of correcting a clerical error or an obvious mistake made in, or in relation to, a complete specification."
In order to determine whether the proposed amendments can pass these tests, it is necessary to examine the complete specification, as filed, and as accepted. It was filed on 8 February 1985, claiming a convention priority date of 9 February 1984. The patent had originated in the Netherlands. Its concern is with the manufacture of a particular type of plastic cap for bottles and jars and similar objects.
It is useful to note at once the drafting plan upon which the complete specification has been constructed. The document commences with a section describing a known process for the making of caps of the general kind the subject of the invention; then draws attention to certain limitations said to be inherent in that process as known; next sets out as objects the provision of a process and a cap overcoming the identified limitations; proceeds to a consistory clause with added amplifying paragraphs, including an embodiment and a preferred embodiment disclosing features of particular relevance to this case; and concludes with a number of claims.
The opening general statement reads as follows:
"The invention relates to a process for making a closure cap provided with a gasket from a polypropylene material for a container, said closure cap comprising an end wall and a circumferential side wall, in which process the gasket is formed in the closure cap via a melting and a cooling operation by applying in the closure cap an amount of plastisol which is shaped therein into a gasket configuration at an elevated temperature adjusted after the plastisol addition; causing the plastisol shaped into the gasket configuration to melt completely by further energy supply and then cooling same to form the gasket. Such process is known from Dutch patent application 80.03371. In this known process a closure cap often made by injection moulding from an olefin polymer, in particular a high-melting polypropylene having a melting point of approximately 165 degrees C, after having been provided with a vinyl chloride resin plastisol, is preheated to a temperature which must be 5-35 degrees C below the melting point of the employed olefin polymer, e.g., polypropylene, preferably 5-15 degrees C, i.e. it must be preheated to a temperature of at least 130 degrees C, preferably 145-160 degrees C, followed by exposure at this temperature in an appropriate oven to microwave energy having a frequency which is not critical from a technical point of view indeed, but is effectively 300-300,000 MHz. Exposure to the microwave energy takes place at the moment when the plastisol shaped into a gasket configuration is completely liquid, i.e. completely molten, which means that the resin has been completely solvated (sic) by the plasticizer.
Preheating can be appropriately carried out in a hot air oven."
As I have indicated, this opening statement is followed by comments about the limitations inherent in the techniques involved. Reference is made to the obvious need to keep the temperature sufficiently below the melting point of the olefin polymer, for example polyethylene, of which the cap may be made, and into which the plastisol gasket must be inserted. One problem identified is that, although "caps can be provided with an unspecified anti-theft means", they "normally have a limited inner diameter of approximately 25-32 mm." Another problem relates to the "anti-theft means" itself, by which expression the author of the complete specification appears to intend to refer to a device for the exposure of tampering. Of these, the common
"type comprising a sealing ring produced in one piece with the closure cap and connected with the side wall of the closure cap via a number of narrow frangible bridges to be broken on the first opening of the container cannot be used within the framework of the known process."
This is because the high temperatures applied to the closure cap during that process soften and deform the frangible bridges.
The objects of the invention which are stated refer to the ability to provide a cap of the kind in question with a sealing ring connected to the cap by a number of narrow bridges, and to provide such a cap for use on a container having a wide mouth with a diameter up to 90 millimetres and more. These objects are stated in language which seems to envisage both a method of producing such a cap, and also the cap itself so produced.
The complete specification then contains a consistory clause, and a series of paragraphs which appear to elaborate upon it and describe embodiments of it. This part of the document is quite lengthy, and I shall not set it all out, but the commencement and the immediately following paragraphs are of particular relevance. They read as follows:
"According to the invention there is provided a process of the type specified in the opening paragraph, which is characterized by starting from an integral combination of the closure cap with a sealing ring which is connected with the closure cap by means of a number of frangible bridges capable of being broken on the first opening of the container, and, to form the gasket, carrying out the melting operation by heating the closure cap after addition of the plastisol to a temperature of 50-110 degrees C and by exposing the resulting plastisol shaped into the gasket configuration subsequently, as is known per se, to microwave energy until the plastisol has been completely molten. The process according to the invention may start from a closure cap of a standard grade polypropylene; it is therefore not necessary to use a high-melting polypropylene material. There can also be used a normal type of plastisol, e.g., that consisting of a microsuspension of a vinyl chloride copolymer resin with 5% vinyl acetate and further comprising conventional constituents, e.g., one or more stabilizers, plasticizers, viscosity-reducing and/or torsion-reducing agents.
It is very advantageous to start from a closure cap the end wall of which is internally provided with an annular space bounded by two undercuts the outer one of which is substantially bounded by the inner periphery of the side wall of the closure cap, and into which annular space a dosed amount of plastisol is injected in the conventional manner.
Preferably, the starting point of the invention is a closure cap the end wall of which is thinner by 20-50% at the position where the gasket is to be formed, such as at the position of the annular space bounded by the undercuts mentioned before. This promotes the heat transfer to the plastisol in the oven, such as the hot air oven in which the preheating can be performed. Moreover, the higher flexibility of the end wall at the relevant position enhances the self-ventilating action of it when the contents of the container are pasteurized.
According to a further embodiment of the process of the invention the melting operation of the plastisol disposed in situ in the closure cap is carried out by preheating the combination of closure cap and plastisol to 50-110 degrees C and then exposing the resulting gasket configuration to microwave energy having a frequency of 10-200 MHz.
According to a preferred embodiment the melting operation is carried out by heating the closure cap after addition of the plastisol to 100 degrees C within 15-30 sec. and completely melting the plastisol shaped into the gasket configuration by 3-15 sec. exposure to microwave energy having a frequency of 27.10-27.15 MHz. This frequency is permitted for industrial uses in the whole world. In the process according to the invention a closure cap is obtained which comprises a homogeneous gasket, and which is further provided with an undamaged, undeformed sealing ring, and which closure cap may have such an inner diameter that it can be applied to a container having a wide mouth. For instance, according to the invention a closure cap can be obtained having an inner diameter which may be up to 90 mm or more.
The invention is particularly suitable for, although not limited to, the preparation of a closure cap with an integrally connected sealing ring the inner side wall of which is threaded so that this container can be opened or closed by rotation of the closure cap, in conjunction with corresponding provisions made at the neck of the container. The invention also relates to a closure cap made of an olefin polymer comprising an end wall and a circumferential side wall provided with a gasket formed from a plastisol material, for a container said closure cap being provided with a sealing ring which is integrally connected with the side wall of the closure cap via bridges capable of being broken on the first opening of the container, and said end wall having a wall thickness decreased by 20-50% at the gasket, the inner diameter of the closure cap very advantageously being up to 100 mm."
When the complete specification was filed, it included the following two claims, which, however, were subsequently deleted, before the complete specification was accepted:
"3. A process ... characterized in that the melting operation is carried out by exposing the resulting plastisol shaped into the gasket configuration, after heating to 50-110 degrees C, to microwave energy having a frequency of 10-200 MHz.
4. A process according to claim 3, characterized in that the melting operation is carried out by heating the closure cap after addition of the plastisol to 100 degrees within 15-30 sec. and completely melting the resulting plastisol shaped into the gasket configuration by 3-15 sec. exposure to microwave energy having a frequency of 27.10-27.15 MHz."
What, in substance, the applicant seeks to do is reinstate these claims by amendment.
The difficulty which stands in the applicant's way may now be stated. Microwave heating, of materials of the type with which the specification is concerned, occurs by virtue of electromagnetic waves causing an oscillatory movement of molecules, containing an electric field known as a dipole moment, in the material to be heated. The process is also known as dielectric heating. While polyolefins do not possess a sizeable dipole moment, and accordingly do not respond to this method of heating, polyvinyl chlorides do. Hence the possibility of differential heating of the closure cap on the one hand, and the gasket on the other, by this means. But the expression "microwave energy" does not, in the normal language of science or technology, refer to electromagnetic radiation having a frequency of less than 30 MHz (megahertz), nor (except in rare instances) has the expression been used in respect of electromagnetic radiation having a frequency of less than 300 MHz. Frequencies of from 10 to 200 MHz would usually be described as radio frequencies. The microwave band is, in general, understood as ranging from 300 to 300,000 MHz. It is therefore urged against the applicant that the reference in the complete specification to "microwave energy having a frequency of 10-200 MHz", and the reference to "microwave energy having a frequency of 27.10 - 27.15 MHz", contain contradictions in terms. It follows, the argument runs, that they are ambiguous and confusing: cf. Minerals Separation North American Corporation v. Noranda Mines Ld. (1952) 69 RPC 81 at 92-93. Further, the respondent says, these expressions cannot reflect back upon the meaning of "microwave energy", as those words are used at the end of the first paragraph of the portion of the complete specification firstly set out above. There, the parenthetical observation, "as is known per se", is said to indicate that only the range of frequencies ordinarily known as microwave frequencies is intended to be mentioned.
To take the last point first, I do not think the expression, "as is known per se", refers to the wavelength of the electromagnetic radiation involved. In the immediate context of the expression, what is different about the process described from the known process, at least at first sight, is the considerably lower temperature (50-110 degrees C) to which the cap is initially heated before the exposure of the plastisol to further heating by electromagnetic radiation. Having stated that new feature of the process, the draftsman goes on to require the second heating operation, while noting in passing that this, in itself, is a known procedure - apart from its combination with a very much lower level of pre-heating, it is not in itself new or inventive. I do not think the expression, "as is known per se", is intended to indicate that the process must be confined to the accepted microwave wavelength of electromagnetic radiation.
However, the use of the word "microwave" does, without more, so confine the scope of the specification, unless the later references to particular frequencies compel the adoption of a different construction. This raises the real question in the case. Putting that question in the precise terms of s. 102(1) of the Patents Act 1990, is a claim to an invention, involving the use of electromagnetic radiation at frequencies other than those normally described by the use of the word "microwave", a claim "in substance disclosed in the specification as filed"? It seems to me that it will be if: (1) the expression "microwave energy" should be read in the light of the later statements in the specification as including a reference to electromagnetic radiation having the lower frequencies there stated; or (2) those later statements should themselves be read as disclosures which can properly be translated into claims in accordance with the amendments sought.
The applicant submits that the complete specification provides its own dictionary, making plain the meaning of "microwave" as embracing electromagnetic or dielectric heating which utilizes frequencies not normally described by that word. The problem is whether the principles upon which a specification should be construed permit of the approach required by the applicant's argument. The respondent urged that the proposed amendment involves claims, and that claims which are not inherently ambiguous cannot be wrested from the meaning appearing upon their face by resort to the body of the specification. This argument can have only a limited place in respect of the present question. For s. 102(1) asks whether, as a result of the amendment, the specification would claim matter not in substance disclosed in the specification as filed. The primary issue, therefore, is not one of construction of a claim, but of construction of the specification as filed to determine what matter is in substance disclosed in it. From that point of view, there can be no ground for excluding the assistance of context from the task of ascertaining what in substance the specification discloses. But, of course, any special problem that there may be in relation to the construction of a claim will be relevant to the ascertainment of what the specification would claim if amended as proposed.
I have discussed the approach which the Court should take to the construction of claims in a specification in International Business Machines Corporation v. Commissioner of Patents (1991) 33 FCR 218 at 222-223 and in NV Philips Gloeilampenfabrieken v. Mirabella International Pty Ltd (1993) 117 ALR 79 at 124-125. See also Decor Corporation Pty Ltd v. Dart Industries Inc (1988) 13 IPR 385 at 400, where Sheppard J set out a number of rules derived from the authorities. In NV Philips (at 125), I referred to the insistence upon the primacy of context in the interpretation of instruments generally which is to be found in the judgment of Mason J in K and S Lake City Freighters Pty Ltd v. Gordon and Gotch Ltd (1985) 157 CLR 309 at 315. In International Business Machines (at 222), I said: "One should not pick one's way through a claim wearing blinkers that exclude from sight the context in which the claim is set." In my opinion, as Taylor J urged in Martin v. Scribal Proprietary Limited (1954) 92 CLR 17 at 103, "it is the duty of the court to endeavour to ascertain from the language used the true meaning of any claim or claims". When doing that, as in reading any instrument, the Court should regard the context as all-important. Lord Atkin's expression in Electric and Musical Industries Ld. v. Lissen Ld. (1938) 56 RPC 23 at 38, though uttered in the course of a dissenting speech, represents the law: "... when the claims are read, as they ought to be read, in the light of the body of the Specification ...". At the same time, in giving effect to the context as well as in every other aspect of construction, the Court will remember that it is construing a claim, not some other clause of the specification. The nature of a claim may, in itself, have a bearing on the right interpretation to give to its language. That is the point of the well-known passage in the speech of Lord Russell of Killowen in the case just cited (at 39). But he acknowledged Lord Atkin's principle (at 41) when he referred to the possibility of words in a claim bearing a "special or unusual meaning by reason ... of a dictionary found elsewhere in the Specification".
Before attempting to apply these principles to the construction of the complete specification, the Court needs to be informed of matters which would constitute the background information of the skilled persons to whom the specification is addressed. According to the evidence, the various electromagnetic waves all have a common physical basis, so that they differ only in their wavelength. The classification of them according to their wavelength (or frequency) does not have very sharp boundaries. Although I am satisfied on the evidence that the range generally referred to when the word "microwave" is used is from 300-300,000 MHz, counsel for the applicant was able to demonstrate that there are a few published references, including in dictionaries, to show that the word has been used to refer to frequencies greater than 30 MHz.
But the applicant's real point is that no one can read the references in the specification to "microwave energy having a frequency of 10-200 MHz" and "microwave energy having a frequency of 27.10-27.15 MHz" without appreciating that the author of the document is not confining the meaning to energy produced by electromagnetic radiation from 300-300,000 MHz. If anything were needed to ram this point home, the specification, after referring to the frequency of 27.10-27.15 MHz, comments: "This frequency is permitted for industrial uses in the whole world." That is a comment about dielectric heating employing a frequency normally described as a radio frequency. It is also a comment that makes it plain the invention is alleged to have the utility of taking advantage of a readily available frequency. It is not made in a part of the specification labelled "consistory clause", but this is of no consequence; such a clause is not required in a modern specification: Welch Perrin and Company Proprietary Limited v. Worrel (1961) 106 CLR 588 at 612. Nor, of course, is the author of the specification bound to identify the inventive step in what is claimed by it: AMP Incorporated v. Utilux Pty. Limited (1971) 45 ALJR 123 at 133. When the frequencies themselves are stated explicitly, while being described by the word "microwave", and bearing in mind that the only difference between electromagnetic waves, described by that word, and electromagnetic waves, described as radio waves, is represented by the wavelength that is translated into frequency by the figures given, it seems to me to be plain beyond further argument that the author of the specification is using the word "microwave" so as to include radio wave frequencies. As it is admitted there is no sharp boundary between the frequencies described as microwave and those described as radio wave frequencies, the solecism is not a particularly surprising one, and does not seem to me to be one which could at all confuse a knowledgeable person. All the expert witnesses agreed there was no difficulty in understanding the word "microwave" in the paragraphs where the frequencies in megahertz are actually stated. I think it would be perverse to deny that the same word, when used in other paragraphs concerned with the same subject, in the same document, which is plainly drafted as a unity, has the same broad meaning. To recognize that meaning is not "to import into (the) claim features of the preferred embodiment" (Rehm Pty Ltd v. Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79 at 89), but to heed the authentic language of the claim itself.
It is interesting to note that early in the complete specification, when describing the state of the art, the author refers to microwave energy, and adds: "having a frequency which is not critical from a technical point of view indeed, but is effectively 300-300,000 MHz." It is not said that microwave energy has by definition a frequency within these limits, but that effectively these are the frequencies currently employed.
Accordingly, I hold that the proposed amendment passes the test of s. 102(1). It would not result in the specification claiming matter not in substance disclosed in the specification as filed.
The next question is whether the proposed amendment also passes the test in s. 102(2)(a), which looks to the specification as accepted; the amendment must not have the result that a claim of the specification would not in substance fall within the scope of the claims of the specification before amendment. To put it in the language of Jacobs J in AMP Incorporated v. Commissioner of Patents (1974) 3 ALR 283 at 289:
"(A)s a result of the amendment, nothing should become an infringement of the patent which would not have been an infringement of the patent before the amendment."
It is necessary to note, first, how the specification as accepted differed from the specification as filed. There were some minor deletions, not presently relevant. What is materially different about the specification as accepted is the deletion of claims three and four. Relevantly, the claim now made is as follows:
"1. A closure cap for a container made from an olefin polymer comprising an end wall, a circumferential side wall and a sealing ring with which the container can be sealably closed in conjunction with a locking collar disposed around the neck of the container, which sealing ring is integrally connected with the side wall of the closure cap via frangible bridges capable of being broken on the first opening of the container, characterized in that the end wall is internally provided with an annular space bounded by two undercuts, said annular space is provided with a gasket made from a plastisol material and said gasket is sealing on the edge of the container neck, said end wall having a wall thickness decreased by 20-50% at the gasket while the closure cap is obtained starting from an integral combination of the closure cap with the sealing ring, adding an amount of the plastisol material to the annular space and, to form the gasket, carrying out the melting operation by heating the closure cap after addition of the plastisol to a temperature of 50-110 degrees C and by exposing the resulting plastisol shaped into the gasket configuration subsequently to microwave energy until the plastisol has been completely molten."
By the amendments sought to be made, the applicant would, apart from matters not now material, substitute for the words at the end of the first claim, "by exposing the resulting plastisol ... ", the following:
"by subsequently exposing the resulting plastisol shaped into the gasket configuration to microwave energy of a frequency in the range of 10 to 200 MHz until the plastisol is completely molten."
The applicant would also insert by its amendments a claim 2, as follows:
"2. A closure cap as defined in claim 1 wherein said microwave energy is of a frequency in the range of 27.10 to 27.15 MHz, said exposing of plastisol is for a period of 3 to 15 seconds and said heating of the closure cap is to a temperature of about 100 degrees C within a period of 15 to 30 seconds."
In my opinion, the specification as accepted has not been so varied that it should receive a different construction, so far as the expression "microwave energy" is concerned. It still contains the same passages which demonstrate that the author is using the expression to include energy produced by electromagnetic radiation having a frequency which would ordinarily be described as a radio frequency, although the precise point at which the frequency would cease to be described as microwave and begin to be described as a radio wave frequency is incapable of exact statement. Because the specification, read as a whole, does undoubtedly include the particular frequencies which the applicant desires to mention specifically in the amendments to the claims, and includes them under the name of energy called "microwave", it seems to me that that word, as used in claim 1 of the accepted specification, must have the wider meaning for which the applicant contends. This being so, the amendment narrows the claim; it does not widen it, and it does not have the result that a claim of the specification would not in substance fall within the scope of the claims before amendment.
The final test which the proposed amendments must pass is that provided by s. 102(2)(b); the amendment having been proposed after the specification has been accepted, it must not have the result that the specification would not comply with subs. (2) or (3) of s. 40. In this case, what is important is the reference to subs. (3) - which requires claims to be clear and succinct and fairly based on the matter described in the specification.
The respondent argued that the reference to "microwave energy of a frequency in the range of 10 to 200 MHz", and to "microwave energy ... of a frequency in the range of 27.10 to 27.15 MHz", in each case, is confusing rather than clear and succinct. But s. 102(2) is speaking of the results of an amendment; it is not criticising the original drafting of the specification. Counsel's argument really is that the use of the adjective "microwave" in the original specification was confusing and lacked clarity. Since I have construed it as embracing the particular frequencies in question, a precise statement of those frequencies, although associated with a further use in the same sense of the word "microwave", cannot have the result suggested by counsel. On the contrary, it will tend to clarify the claims by saving the reader from the necessity to construe them in the light of the meaning attached to their language by the body of the specification. If, to any degree, the specification, when amended, does not comply with s. 40(3) because of some lack of clarity or succinctness, it will not be possible, in the words of s. 102(2), to say that this was "as a result of the amendment".
So far as s. 40(3) insists that a claim be fairly based on the matter described in the specification, I do not think the proposed amendments will have the result that this requirement will not be complied with. For substantially the same reasons which led me to conclude that the amended claims would not claim matter not in substance disclosed in the specification as filed, within s. 102(1), I think they would not impair the fair basing of the claims in the specification for the purposes of s. 102(2).
Generally under s. 102, the respondent sought to rely on a number of matters introduced into the specification by earlier amendments. Since the comparison required by s. 102(1) is with the specification as filed, and the comparison required by s. 102(2) is with the specification as accepted, I do not think such an argument is valid. Counsel suggested it could be maintained on the basis that the particular frequencies mentioned in the proposed amendments were to be considered in combination with the earlier amendments, and thus permitted reference to them. But this is not, in my opinion, a correct way of looking at the matter. The comparisons required by the statute are explicit, and they provide the tests which should be applied.
For these reasons, I conclude that the appeal succeeds. The only order I make at this stage is that the applicant bring in, on a date to be fixed, short minutes of orders in conformity with the reasons of the Court.
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