O'Neill v Australian Broadcasting Corporation
[2005] TASSC 75
•10 August 2005
[2005] TASSC 75
CITATION: O'Neill v Australian Broadcasting Corporation & Ors [2005] TASSC 75
PARTIES: O'NEILL, James Ryan
v
AUSTRALIAN BROADCASTING CORPORATION
ROAR FILM PTY LTD
GORDON DAVIE
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 135/2005
DELIVERED ON: 10 August 2005
DELIVERED AT: Burnie
HEARING DATE: 14 and 20 June 2005
JUDGMENT OF: Tennent J
CATCHWORDS:
Criminal Law – General Matters – Other general matters – Disabilities and disqualifications of convicted persons – Other cases – Right of long term prisoner to institute civil proceedings – Application for leave - Retrospective leave.
Prisoners (Removal of Civil Disabilities) Act1991 (Tas), s4(1).
The Commonwealth of Australia v Verwayen (1990) 170 CLR 394; Fitzpatrick v Jackson (1998) 33 A Crim R 382; Smith v Coleman A38/1996, referred to.
Aust Dig Criminal Law [101]
REPRESENTATION:
Counsel:
Plaintiff: J E Green
First defendant : P G J Zeeman
Second and Third defendants: D J Gunson SC
Solicitors:
Plaintiff: Hobart Community Legal Service
First defendant : Murdoch Clarke
Second and Third defendants: Hunt & Hunt
Judgment Number: [2005] TASSC 75
Number of paragraphs: 49
Serial No 75/2005
File No 135/2005
JAMES RYAN O'NEILL v AUSTRALIAN BROADCASTING
CORPORATION, ROAR FILM PTY LTD and GORDON DAVIE
REASONS FOR JUDGMENT TENNENT J
10 August 2005
Nature of Application
This is an interlocutory application in proceedings in which the applicant is a plaintiff seeking damages for defamation against three defendants, the Australian Broadcasting Corporation ("the first defendant"), Roar Film Pty Ltd ("the second defendant") and Gordon Davie ("the third defendant").
The applicant seeks an order pursuant to the Prisoners (Removal of Civil Disabilities) Act 1991, s4, ("the Act") that he have leave retrospectively to issue the writ he issued on 15 April 2005. The application is opposed by only the second and third defendants. That opposition is on the basis that there is no power to make such an order retrospectively. It is contended that the absence of leave renders the proceedings initiated by the writ a nullity.
There are therefore two issues to be determined:
1Does the Court have the power to grant leave retrospectively to the applicant? If so,
2Should the applicant have leave?
History of substantive proceedings
On 15 April 2005, the applicant filed a writ. He also filed an interlocutory application with a supporting affidavit. By that application he sought an injunction restraining all defendants from, in effect, proceeding with the showing of a television program in which he alleged there was defamatory material. Affidavits were filed and, after argument before Crawford J, an injunction was granted on 22 April 2005. It was conceded for the purpose of those proceedings only that certain imputations could be drawn from the material.
There is no dispute that at the time the applicant's writ was filed and his application for an injunction dealt with, he had not sought leave pursuant to the Act to institute any proceedings. There is also no dispute that that point was not raised by any of the defendants on the hearing of the application for the injunction.
A statement of claim was filed on 2 May 2005. A defence was filed on behalf of the first defendant on 24 May 2005. On 8 June 2005, a defence was filed on behalf of the second and third defendants. By par11 of that defence, those defendants pleaded that the applicant's action was barred by virtue of the fact that he did not seek leave pursuant to the Act, s4(2), prior to the issue of his writ.
There are proceedings pending by way of an appeal by the first defendant against the order of Crawford J made on 22 April 2005. The second and third defendants are not parties to that appeal.
The Act
The Act is very short, having only six sections. Section 4 provides:
"(1) Subject to subsection (2), a prisoner may ¾
(a)sue and be sued; and
(b)enter into contracts.
(2) A long term prisoner may not sue except by leave of the court before which it is intended to bring the proceedings.
(3) A court shall not give leave for the purpose of subsection (2) unless it is satisfied that ¾
(a)the proceedings are not an abuse of process; and
(b)there is a prima facie ground for the proceedings."
Section 5 provides:
"(1) An application may be made to the Court for the appointment of an administrator of the property of a long term prisoner by ¾
(a)the prisoner; or
(b)a relative of the prisoner; or
(c)a person with an interest in the care and management of the prisoner's property.
(2) The Court shall, after considering the merits of an application made to it in accordance with subsection (1), either ¾
(a)refuse the appointment of an administrator; or
(b)appoint a person to be the administrator of the prisoner's property on such terms and conditions as it considers to be the most appropriate in the circumstances."
That the applicant was a prisoner and a long term prisoner within the meaning of the Act was not in dispute. There was no evidence before me to the effect that any application had been made in respect of the applicant's property pursuant to s5.
This application for leave
On 2 June 2005, that is six days before the second and third defendants filed a defence, but several weeks after the applicant's writ was filed, the applicant filed the present interlocutory application supported by an affidavit of one Benedict Bartl, his legal practitioner. By that application the applicant sought retrospectively that he have leave pursuant to the Act, s4(2).
The affidavit in support filed on behalf of the applicant was very short. No material was filed on behalf of any defendant. Counsel for the first defendant indicated her client would simply abide by the decision of the Court.
Counsel for the applicant sought to read into evidence the affidavit of Mr Bartl. Counsel for the second and third defendants objected to pars6 and 8 of that affidavit. The objection to par8 was conceded and an order made striking it out. The objection to par6 was maintained on the basis the material in it was not relevant to the issue to be determined. Because the argument was inextricably bound up with the substantive argument, it was agreed the paragraph would be taken de bene esse and the issue of its relevance dealt with as part of the overall matter.
Issue 1 – Does the Court have power to grant leave retrospectively?
The Arguments
Counsel for the applicant argued that the Court had power to grant leave as now sought. He argued that because, to obtain an injunction, the applicant had satisfied Crawford J that he had an arguable case, it followed, in effect automatically, that the substantive proceedings were not an abuse of process and that there were prima facie grounds for the proceedings. He argued that had Crawford J believed the proceedings were an abuse of process or that there was no prima facie case, he would not have granted the injunction. Hence the applicant was entitled to leave. It was a simplistic argument which, on the face of it, had merit.
Counsel for the applicant referred to Smith v Coleman, an unreported decision of Cox CJ, 21 June 1996 A38/1996. That was a case which dealt with an application of a long term prisoner for leave to bring various court actions. His Honour said at 2:
"… it should be borne in mind that the Act is entitled 'An Act to remove certain civil disabilities of prisoners' and is ameliorative in character."
However, while that case addressed the various criteria to which a court should have regard in an application for leave, it did not address the issue raised by the defendants' counsel, which was that the Court had no power to grant leave retrospectively.
As to the question of retrospectivity, counsel for the applicant argued that the Act, s4(2), was a bar similar to that in the Limitation Act 1974 in that the lack of leave could be pleaded by way of a defence, but it did not make a writ a nullity or destroy the cause of action. He referred to that Act, s5, which provided that certain proceedings may not be brought after the expiration of a time limit, but allowed a court to extend that time period either before or after its expiration. He submitted that the present case was akin to an application under that Act and that the cause of action remained, even if a plaintiff were out of time. He referred to Robertson v The Hobart Police and Citizens Youth Club Inc [1982] Tas R 102 at 106 where Nettlefold J said:
"In taking that view his Honour overlooked the rule that, in personal actions, the cause of action may remain even though the period prescribed by the appropriate Statute of Limitation has expired … ."
Counsel for the defendants pointed out that no explanation had at any stage been proffered to explain why leave had not been sought before proceedings were instituted.
Counsel for the applicant also argued that the question of whether the writ was a nullity was not relevant to the issue because there would be nothing to stop the applicant applying for leave and, if it were granted, issuing a fresh writ. Technically he is correct; the applicant could seek leave and then issue a fresh writ. However, that is not the factual situation the Court is presently dealing with.
Counsel for the applicant also submitted that the defendants were estopped from now raising the lack of leave issue because they had not raised it in the course of the hearing of the application for an injunction. He argued that had the defendants wished to raise this issue, they should have done so on the hearing of the injunctive application and, if unhappy with the result, then by way of appeal. They should not be allowed to raise it now in the context of opposing an interlocutory application for leave.
The Court was referred to The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 and in particular to the principles relating to estoppel canvassed in it. I do not propose to deal in any detail with that authority, save to say that I am satisfied the principles espoused have no real bearing on the present case. At the time the application for an injunction was heard, the only substantive pleading was an endorsed writ. There was no statement of claim and no defences. All parties were keen to have resolved the issue of whether or not there was to be an injunction. There were apparently some concessions made to avoid any delay but none about the issue currently being litigated, I suspect simply because no one had even thought about it. After the injunction was granted, a statement of claim was prepared and the defendants pleaded the lack of leave. There can be no suggestion that the applicant acted under any misapprehension or has relied on some course of conduct to his detriment. In fact he has obtained a benefit which is ongoing, namely an injunction.
Counsel for the applicant referred to the decision of Crawford J on the application for the injunction delivered on 22 April 2005. Very generally, again he submitted that simply because the application was granted, it must follow that his Honour held the view the applicant's substantive case had merit and the proceedings were not an abuse of process. In response, counsel for the defendants pointed out that the decision of Crawford J was silent as to the question of abuse of process. Indeed it was. However, I note that at 7 his Honour said, referring to the applicant:
"He has demonstrated a prima facie case that the publication of the imputations will amount to actionable defamation ... ."
The principal submission made by counsel for the defendants was made in reliance on a decision of Fitzpatrick v Jackson (1998) 33 A Crim R 382. That was a decision of the Full Court of the Supreme Court of Queensland. In that case a prisoner issued a writ for damages for personal injury suffered prior to his incarceration. However, at the time he did so he was a prisoner within the meaning of the Public Trustee Act 1978 (Qld). By virtue of that Act and his status, the Public Trustee became the manager of the prisoner's estate and that Act, s95, provided in summary that the prisoner, while the Public Trustee was manager of his estate, "shall be incapable, except with the consent in writing of the Public Trustee ... of bringing or defending any action of a property nature …".
The plaintiff had not sought the consent of the Public Trustee before issuing his proceedings. Over three years after the writ was issued, counsel for the defendant in that case raised the lack of consent as a defence. The Public Trustee advised that had consent been sought, it would have supplied it. The prisoner had advice that the particular section did not apply to him and hence he did not need consent. Out of an abundance of caution however, he applied for an order that the proceedings were validly commenced despite the lack of consent. A judge at first instance found against him and held the issue of the writ was a nullity. The prisoner appealed. For reasons not relevant to the present argument, the appellate court found that the proceedings instituted by the prisoner were ones in respect of which he should have sought the consent of the Public Trustee before he began them and upheld the decision at first instance to the effect that the requirement for consent was a mandatory requirement and absent consent, proceedings issued were a nullity.
Counsel for the defendants submitted that the same reasoning applied in the present case.
Counsel for the defendants read extensively from the judgments of Kelly SPJ, Macrossan and Derrington JJ in Fitzpatrick v Jackson (supra). In particular he read a lengthy passage from Kelly SPJ at 386 - 387. His Honour referred to the decision of Jacobs J in Hatton v Beaumont (1978) 52 ALJR 589 where, at 591, he referred with approval to passages from the text Maxwell on The Interpretation of Statutes (11th ed, 1962). At 386, Kelly SPJ went on to say:
"The real question then is whether the granting of consent by the Public Trustee was a condition precedent to the taking of proceedings of the kind referred to in s 95 so that any proceedings commenced without such consent were a nullity, or whether the failure to secure the granting of consent prior to the commencement of the proceedings was one which could be remedied retrospectively so that if such retrospective consent were to be granted a prisoner would not then be precluded by the section from continuing an action which had already been commenced."
He said further at 387:
"Although there does not appear to be any decision of an appellate court on the subject, the weight of authority is that leave nunc pro tunc to commence and proceed with an action may be granted where grounds are shown which would have justified leave in the first instance. It is trite to say that the question is one of interpretation of the particular statutory language in the context of the legislation being considered. As Sholl J pointed out in Re Testro Bros Consolidated Ltd; Ex parte Attorney-General [1965] VR 18 at 35, sections analogous to s 371(2) of the Companies (Queensland) Code are concerned with the granting of leave under legislation aimed at preserving the control of the court over the administration of a company's affairs. To my mind that is a somewhat different case from the granting of consent to the bringing of an action by a prisoner which is required by legislation providing for the management by a statutory corporation sole of the estate of that prisoner. It is relevant to note in this regard that the effect of the legislation is that the Public Trustee as manager of the estate has the option of instituting proceedings in his corporate name or in the name of the prisoner or of permitting the prisoner himself to bring the action. Having regard to those matters I am of the opinion that the granting of consent to the bringing of the action is a condition precedent to doing so with the consequence that proceedings commenced without such consent were a nullity."
Counsel for the applicant argued that the Queensland legislation being considered in that case was in no way similar to the Act and that hence the case was of little or no assistance to the Court in the present matter, save for some statements of what might be described as general principle. He argued that the scheme embodied in the Queensland legislation was similar to that previously embodied in our Criminal Code 1924 ("the Code"), ss435 – 452 inclusive, which sections were repealed by the Act effective 30 May 1991. He argued that the Queensland provision and the sections of the Code now repealed took rights away from prisoners and that all that changed with the introduction of the Act. By the Act, prisoners were enabled to do certain things subject to a bar which could be raised by the Court. This was a bar like that in the Limitation Act which could be raised by a court.
The legislative framework
The Act came into force on 30 May 1991. To understand how it changed the law, it is useful to look at the position of the applicant as it would have been prior to the introduction of the Act. The Limitation Act, s2(2), as it was in force prior to 30 May 1991, provided that a person who was a convict within the meaning of the Code, s435, was deemed to be under a disability. Section 26 then extended the periods of limitation which might otherwise have applied to such person to a date after their disability was lifted.
The Act repealed that part of s2 which deemed a person in the position of the applicant a person under a disability. To all intents and purposes therefore, a person in the position of the applicant was placed, subject to the condition in the Act, s4(2), in the same position as any other civil litigant when it came to limitation periods.
By the Act, the Code, ss435 - 452 were also repealed. Section 437 had provided:
"No proceeding for the recovery of any property, debt, or damage whatsoever shall be brought by any convict against any person; and every convict shall be incapable of alienating or charging any property or of making any contract save as hereinafter provided."
The sections which followed then provided for an administrator of a prisoner's estate to be appointed by the Court on application to manage his affairs and as to what could and could not then be done by that administrator.
Therefore a regime which would have prevented the applicant in the present case from suing at all while he was in prison, there being no provision for the consent of anybody to do so in existence, was replaced by one which allowed him to sue with leave. The Code, s437, used the word "incapable" in the context of what a convict might do as well, which is the same word used in the Queensland legislation dealt with in Fitzpatrick v Jackson. That terminology was not carried through to the provisions in the Act.
Clearly, therefore, the wording of and the scheme embodied in the Act and the Queensland legislation, the subject of the decision in Fitzpatrick v Jackson, is different. Should they, in the circumstances, be interpreted differently?
In interpreting the Act, I have taken the liberty of looking at the Second Reading Speech given by the then Minister for Justice, Mr Patmore, to Parliament on 8 May 1990, and the Law Reform Commission Report No 20 referred to in that speech. Neither of those documents gives any guidance as to Parliament's intention on the issue of the effect of leave not being obtained before the commencement of proceedings. All that can be said is that the Commission's report did not recommend that leave even be a requirement. In the Second Reading Speech, however, Mr Patmore said in relation to the requirement for leave that the Bill was intended to give effect to the Commission's report and said also:
"The bill proposes that the current restrictions on a convict's right to sue should be removed, but that leave of the court should be required so that the court may be satisfied that the proceedings are not an abuse of process and that there is prima facie ground for them.
… an unfettered right to institute action creates an unacceptable risk of unmeritorious civil litigation being instituted. For example, defamation proceedings may be brought as a means of relitigating the matter for which the convict was sentenced."
It would seem to me that Parliament in enacting the provisions of the Act and in removing legislation which previously existed, was attempting to place a person such as the applicant as far as was possible in the same position as an ordinary citizen, reserving however the right of the courts to prevent what might be perceived as unmeritorious litigation. Given that the Law Reform Commission's report contained no recommendation for leave to be a part of any legislative framework, that Mr Patmore told Parliament it was intended to give effect to the Commission's report, and that there was no express provision for leave to be a mandatory pre-condition, one would have to ask, did Parliament intend that it should be? Is it not more likely that Parliament intended that the courts maintain control over proceedings in these sorts of cases which could as easily be done retrospectively as not.
As Kelly SPJ pointed out in Fitzpatrick v Jackson (supra) in the passage from 387, which I have already quoted at par24, the question is one of interpretation of the particular statutory language in the context of the legislation being considered. He recognised that there were differences for example between sections in the Companies (Queensland) Code aimed at preserving the control of the court over certain matters and sections of the Public Trustee Act 1978 (Qld) aimed at the management of a prisoner's affairs.
I need also to have regard to the section itself. The Act, s4(2), says that a prisoner may not sue except by leave of the court "… before which it is intended to bring…” proceedings. The inference to be drawn from that wording is that leave should be sought first. I have no doubt that was what was intended. The question is, however, did Parliament by that wording also intend that any proceedings brought without leave obtained first be a nullity?
In my opinion it did not. Parliament gave to the Court the power to manage proceedings before it by requiring a prisoner to seek leave. By that method, the Court could ensure that a prisoner did not waste the Court's and anyone else's time, resources and money with potentially frivolous, unmeritorious or perhaps vexatious litigation. Parliament did not adopt the words of earlier statutes or indeed the Queensland statute and say that a prisoner was incapable of taking proceedings. It also did not adopt the regime contained in the Queensland legislation which placed the affairs of certain prisoners under the control of the Public Trustee by virtue of their status and not by virtue of an application to a court. The Act instead simply provided that a prisoner may not sue without leave and provided for the circumstances in which leave could be granted. As I have said, it did not contain a provision that leave was a mandatory pre-condition to the filing of process or that any such process would be a nullity without leave.
I am of the view in all the circumstances that the Court is empowered to grant leave retrospectively.
Issue 2 – Should the applicant have leave?
Counsel for the second and third defendants relied basically on his argument about issue one and did not in any significant way address the merits of the application for leave itself. The most that could be said was he argued there was a paucity of relevant information upon which the application could be considered.
As a starting point, I need to consider the argument about the admissibility or otherwise of par6 of the affidavit of Mr Bartl upon which the applicant sought to rely.
Paragraph 6 of Mr Bartl's affidavit simply recited that on 22 April 2005, Crawford J made an order by way of an injunction and the terms of that order. Counsel for the defendants argued that this information was not relevant to the issue to be determined.
The Act, s4(3), provides the Court shall not give leave unless the applicant satisfies it about two matters: firstly, that the proceedings are not an abuse of process; and secondly, there is a prima facie ground for the proceedings. The question to be addressed is therefore, are the fact of and terms of Crawford J's order relevant to determining either or both of those matters? The applicant is seeking damages for defamation. The fact that a judge of this Court has already issued an injunction, whether correctly or otherwise, and in so doing made a finding that the applicant has demonstrated a prima facie case that the publication of the imputations will amount to actionable defamation, is on its face material which could logically affect the issues to be determined on an application for leave. I am satisfied it is relevant and the paragraph will be admitted into evidence.
The affidavit of Mr Bartl told the Court that a video called "The Fisherman" was published by the defendants in January 2005. As a consequence, a writ was issued on behalf of the applicant seeking damages for defamation. There then appeared par6, to which I have already referred. There were no direct statements at all in the affidavit telling the Court what the video was about, what its connection to the applicant was, the nature of any alleged defamatory material in it and about the applicant's circumstances. In short, there were no direct statements from which the Court could make a determination about the issues it must decide. The affidavit, I would have to say, was badly drawn and did a disservice to the applicant. It seemed to be drawn on an assumption that the Court could and would have regard to all the previous documents filed with the Court without making any specific reference to any of them.
Given however the lack of argument against the merits of this application by the defendants and that there was no argument the applicant was a long term prisoner within the meaning of the Act, I am prepared, without anything further, to infer from Mr Bartl's affidavit for the purpose of this application that:
·the applicant was, to some extent or another, the subject of a video called "The Fisherman";
·there were imputations in the video that the applicant was responsible for, or suspected of being, a multiple child killer and/or the disappearance and death of the Beaumont children;
·the imputations amounted to actionable defamation; and
·a judge of this Court found that the applicant had demonstrated a prima facie case that the publication of the imputations would amount to actionable defamation such that he has granted an injunction to restrain the showing of the video.
Smith v Coleman (supra) is the only decision of this Court in relation to the Act to which I have been referred. That case also dealt with an attempt by a long term prisoner to bring proceedings for defamation arising out of the use of words of a sexual nature by a prison warder. In that case, the prisoner was serving a sentence for sexual offences. Cox CJ said at 3 - 4:
"On the face of it, the likelihood of a sexual offender whose crimes have earned him an indefinite sentence of incarceration being able to establish that he has been injured by the coarse and abusive words he claims were uttered by the first named respondent may seem remote. But the principles adverted to by Kirby J in an application to strike out proceedings in the High Court as frivolous or vexatious within the meaning of O26, r18(2) are just as applicable here. In Lindon v The Commonwealth [No 2] (1996) 8 Leg R 11, his Honour said (at 13):
'The approach to be taken by the Court to the Commonwealth's application for summary relief is not in doubt:
1 It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128f; Dyson v Attorney-General [1911] 1 KB 410 at 418);
2 To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action (Munnings v Australian Government Solicitor (1994) 68 ALJR 169 at 171f per Dawson J; 118 ALR 385 at 388f) or is advancing a claim that is clearly frivolous or vexatious (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91);
3 An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination (Coe v The Commonwealth (1979) 53 ALJR 403; 24 ALR 118; Wickstead v Browne (1992) 30 NSWLR 1 at 5-7). Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;"
It is perhaps unfortunate that defamation proceedings are not within the jurisdiction of the Court of Requests (Local Courts Act 1896, s32(1)) for, as counsel for the applicant conceded, any reasonably anticipated award of damages in the circumstances could not exceed the monetary limit of that jurisdiction. But the fact is that until the Magistrates Court (Civil Division) Act 1992 is proclaimed, this Court is the only court having jurisdiction to try the applicant's cause of action and the fact that any award (if indeed any is made) may only be a small one, cannot render proceedings for them an abuse of process. There does not seem to me to be any other basis upon which it could be said that these proceedings are an abuse of process (cf, Hunter v The Chief Constable of the West Midlands Police and Ors [1982] AC 529, Williams v Spautz (1992) 174 CLR 509, Giannarelli & Ors v Wraith & Ors (1988) 165 CLR 543, Mickelberg v Director of the Perth Mint [1986] WAR 365, Saffron v Federal Commissioner of Taxation (1991) 102 ALR 19 and Nicholas v Bantick (1993) 3 Tas R 47). Accordingly, in respect of the applicant's intended proceedings in this Court against the first named respondent for defamation, I am satisfied that they are not an abuse of process and that there is a prima facie ground for the proceedings."
Those statements are clearly relevant in the present case.
I do not have to be satisfied that the applicant will ultimately succeed in his action. To grant leave I must only be satisfied of the matters set out in the Act, s4(3). This is not the type of case sought to be prevented in the courts having regard to Mr Patmore's Second Reading Speech. There is nothing to suggest the applicant's claim is vexatious or unmeritorious, although there are clearly issues of fact and law which the Court will ultimately have to determine and which may be determined against him. There is no material at all before me which could persuade me that these proceedings are an abuse of process.
While the onus is on the applicant to satisfy the Court about the matters in the Act, s4(3), the fact that no material or submissions were put before the Court to suggest the applicant's material, scarce though it was, did not meet the required hurdles is a relevant factor.
In all the circumstances, I am satisfied that the proceedings for defamation initiated by the applicant are not an abuse of process and that the applicant has prima facie grounds for his proceedings. Leave pursuant to the Act, s4(2), will be granted to the applicant.
There will be an order in terms of par1 of the application filed on 2 June 2005. I will hear counsel as to the issue of costs.
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