OAKLEY & MILLAR - [2018] FamCAFC 47

FAMILY COURT OF AUSTRALIA

OAKLEY & MILLAR

[2018] FamCAFC 47

FAMILY LAW – APPEAL – Appeal from an order dismissing the father’s application for an injunction restraining him from leaving Australia to be lifted – Where the father’s Amended Notice of Appeal is incompetent because it is directed to orders other than the order from which he appeals and fails to disclose any proper grounds of appeal – Where the injunction was properly made – Where the primary judge’s finding that the father did not demonstrate sufficient changed circumstances to have the injunction varied was open on the evidence – Appeal from costs order – Costs order properly made – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where most of the evidence the father seeks to adduce was available to him at the time of the hearing before the primary judge – Where much of the evidence is irrelevant – Application dismissed.

Family Law Act 1975 (Cth) ss 94AA, 114
Family Law Regulations 1984 (Cth) reg 15A

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gilles & Irby (2016) FLC 93-687; [2016] FamCAFC 13
Lenova & Lenova (Costs) [2011] FamCAFC 141
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Millar & Oakley [2016] FCCA 1283
Millar & Oakley [2017] FamCA 415
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Sampson and Hartnett (No 10) (2007) FLC 93-350; [2007] FamCA 1365
Zanda & Zanda (2014) FLC 93-607; [2014] FamCAFC 173

APPELLANT:

Mr Oakley

RESPONDENT:

Ms Millar

INDEPENDENT CHILDREN’S LAWYER:

Taft Lawyers

FILE NUMBER:

MLC

2195

2016

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

9 March 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Alstergren DCJ, Ainslie‑Wallace & Aldridge JJ

HEARING DATE:

9 March 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

4 July 2017

LOWER COURT MNC:

[2017] FamCA 513

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr A Combes

SOLICITOR FOR THE RESPONDENT:

Ebejer & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Did not participate

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Taft Lawyers

Orders

The Application in an Appeal filed 2 March 2018 be dismissed.
The appeal be dismissed.
The appellant pay the respondent’s costs fixed in the sum of $3,388.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Oakley & Millar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 54 of 2017
File Number: MLC 2195 of 2016

Mr Oakley

Appellant

And

Ms Millar

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

ALDRIDGE J

Introduction

Mr Oakley (“the father”) appeals against orders made by Cronin J on 4 July 2017 in parenting proceedings between him and Ms Millar (“the mother”). On that day the primary judge dismissed the father’s application that an injunction first made on 10 May 2016 restraining him from leaving Australia be lifted. His Honour also ordered the father to pay the costs of the mother and the Independent Children’s Lawyer, each in the sum of $920.
As shall shortly emerge, this is the fourth occasion on which the father has unsuccessfully sought to have the injunction lifted. It is important to understand at the outset that the basis for the order made restraining the father from leaving Australia was for the protection of the children. Both Judge Burchardt, who granted the original injunction, and Cronin J, who refused to lift it, considered that if the father were free to leave Australia there was a significant risk he would go to Country B in Africa, where he had previously left the children, to reunite with them and that the children would then never be returned to Australia, in breach of other extant orders.
The parties married in 2010 and separated on 25 September 2014. Their two children were born in 2012 and 2014.
Shortly after separation the father, without notice to the mother, took the two very young children to Country B and left them there with his parents. He returned to Australia by himself.
The mother then went to the Country B and took the children into her care. A court there has restrained her from departing Country with the children. There are proceedings before the court in Country B between the paternal grandparents and the mother as to the care of the children. Interim orders have been made which give the paternal grandparents significant time with the children.
The order that was made restraining the father from leaving Australia was made subsequent to findings that Australia was not an inappropriate forum in which to hear the parenting proceedings and, as I have said, on the basis that if the father left Australia there is a real risk he would reunite himself with the children in Country B and that the children would never be returned to Australia.

Background

In order to understand the disposition of this appeal, it is necessary to place the proceedings in some context. The matter was commenced in the Federal Circuit Court of Australia where a number of interim hearings took place before Judge Burchardt. It was transferred to the Family Court on 21 March 2017 where there were hearings before Cronin J.
The following chronology is largely taken from the primary judge’s reasons given on 9 June 2017 (Millar & Oakley [2017] FamCA 415). His Honour described the issues before him as being:
·Is Australia the clearly inappropriate forum for the determination of parenting orders relating to the two children?
·Should a court order preventing the children’s father from leaving Australia to go to Country B be discharged?
The answer to each question was “no”.
The proceedings were commenced in the Federal Circuit Court of Australia. On 10 May 2016, at a time when the father was represented by counsel, Judge Burchardt made the following order:
That until further order each party … be and are hereby restrained by injunction from departing or attempting to depart the Commonwealth of Australia.
On 16 May 2016, when again the father was represented by counsel, Judge Burchardt, after giving extensive reasons, made the following orders:
(2)Each of the father and the mother shall forthwith do all things, sign all documents and give all consents and authorities necessary to enable, permit and cause the children to be delivered into the Commonwealth of Australia no later than 30 May 2016.
(3)Upon the children’s return to Australia the children live with the father at his residence in [Suburb D], Melbourne, Victoria.
In the course of his reasons Judge Burchardt found that it was in the best interests of the children for them to be with their parents, whether in the primary care of the father or the mother, in Australia. Importantly, in the course of those reasons, his Honour found that there was a very real risk that it was the father’s intention to leave the children in Country B “on a more permanent basis” (Millar & Oakley [2016] FCCA 1283 at [25]).
No appeal was brought against any of the orders made by Judge Burchardt on either 10 or 16 May 2016.
On 10 June 2016 an order was made permitting the mother to leave the Commonwealth of Australia. The evident purpose of that order was to permit her to travel to Country B, collect the children and return with them to Australia.
The father then made an application that he be permitted to leave Australia. On 14 November 2016, Judge Burchardt refused that application and made the following orders in relation to the children:
2.Until further order the children live with the Mother.
3.The [mother] be permitted to travel with the children … from [Country B] to Australia.
…
5.The Mother shall cause the children to be returned to the Commonwealth of Australia as soon as is practicable.
…
9.The mother is to have sole parental responsibility for the children until further order.
Again, the father did not appeal against those orders.
The matter was again before Judge Burchardt on 31 January 2017 when, evidently, there was a further application by the father that he be permitted to leave Australia. At [13] his Honour found that:
I am not at all persuaded that it is appropriate to lift the travel restriction that I put in place earlier … Nothing has changed since then, in my view, and I do not propose to lift that restriction.
The primary judge, Cronin J, noted in his reasons of 9 June 2017 that he was perplexed as to how the parties could have been permitted to agitate the same issues yet again (at [40]). Nonetheless his Honour went on to consider the two issues set out earlier (at [11] above). After finding that Australia remained a not inappropriate forum in which to hear the parenting proceedings his Honour turned to the second issue, saying:
58.The second issue for the Court is whether on my analysis of the evidence, it supports the fears of the mother and the Independent Children’s Lawyer that the father would not return with the children if allowed to leave even if it is now asserted that he needs to attend the overseas court to participate in the proceedings. The dilemma with the father’s argument is that there is a finding that he would not return and if that occurred, it would render the proceedings here nugatory. Nothing in the father’s evidence would suggest that things have changed and I am not acting as judge of appeal in respect of the Federal Circuit Court orders.
His Honour then concluded:
64.Returning to the father’s various applications, I make the following findings:
·There is no evidentiary basis to “urgently” lift the travel ban as the orders of the Federal Circuit Court stand and the father should (as already ordered) co-operate with the return of the children;
·There is no basis to “close the case” because of Country B hearings on the extant finding that Australia is not the clearly inappropriate forum.
·There is no basis to make a “full custody” order when there are extant interim orders about which there are no apparent changes of circumstances;
·There is no basis to order that the mother return the children to their grandmother, as Judge Burchardt ordered that in Australia, the children on return, should live with their father. I interpolate here that the father’s obfuscation and non-compliance which will no doubt be again tested by the orders to which I return below. His approach would make me doubt as to whether that order in his favour could any longer be justified;
·Consistent with the position of the Federal Circuit Court orders, there is no evidence that would enable me to “cancel the temporary travel documents;” even if there was such a power;
·As discussed, there is no basis for this Court to investigate the “lawyers misconduct”;
·Nothing was drawn to my attention that would enable this Court to exercise a jurisdiction that would enable an order to be made for compensation in the sums of damages pursued for the way the case was handled; and
·As there is no evidence of a change of circumstances, there is no justification for the Court to “cancel all previous orders”.
65. The father’s application must fail.
It is again important to note that there was no appeal from that decision.
Just a fortnight later, on 20 June 2017 the father filed an Application in a Case, which was determined by Cronin J on 4 July 2017, seeking the following orders:
1.Cancel the temporary travel documents that were issued, as the children are on the [Country B] watch list they cannot travel through the legal safe departure points. These documents are encouraging the biological mother to attempt to smuggle the children through a very dangerous border notorious for human slavery, organ harvesting and explosives. The court is responsible of any harm that will happen to my children.
2.Lift the travel ban off me and my children
3.
4.Cancel all the previous orders made in the case
5.Close the case.
(As per the original)
Included in the father’s limited evidence was what the primary judge understood to be a translation into English of a letter from the lawyers acting for the paternal grandparents in Country B to the father. The letter makes reference to case number 610/2017, which it is necessary to appreciate is a reference to the proceedings in Country B between a person called Ms F (who appears from other documents in the appeal books to be the paternal grandmother) and the mother. Seemingly the father is not a party to those proceedings.
There also appears to be a further set of proceedings referred to in that letter between the paternal grandparents and the mother. Ms F is described as “the former children guardian”. The letter records that in those proceedings the plaintiffs were allowed “to continuously visit [the children] in the future, on the Friday and Saturday of every week from 10 am to 6 pm”.
The lawyer’s letter included the following:
An attempt was made to file a request from the [mother] in case No 610/2017 to cancel the case and lift the ban, but the court did not accept this request as it considers the reasons unconvincing and does not confines with the rules of justice and good conscience, as the children of the case of concern are [Country B nationals] and of [Country B] parents and the guardian [Ms F] is [a national of Country B] and all the family of the concerned children from the father and the mother sides are [nationals of Country B], thus it is in the jurisdiction of the [Country B] courts, in addition to that the marriage contract was conducted in [Country B] and there is no legal reason for residing for courts outside [Country B].
(As per the original)
The primary judge commenced his reasons given on 4 July 2017 by saying:
All of the evidence that I had at that stage [on 7 June 2017] indicated that the children were Australian citizens and that they were effectively being held against their will and their mother’s will in Country B. No appeal was lodged by Mr Oakley against those orders.
His Honour then concluded:
3.On the occasion when I last heard this matter, I was conscious that there was a pending hearing in Country B. That related to the children, but the plaintiffs, as they were called, were people other than just Mr Oakley. Mr Oakley says that the Court in Country B, after I made the orders that I did, disagrees with my judgment and says that Country B is the appropriate forum for the future of the children to be determined.
4.The Country B judgment, which has been translated and filed with his affidavit of 19 June, does not say that forum has been so determined. It is simply a form of order in relation to where the children are to spend time with various people, including Mr Oakley’s relatives. This issue, therefore, has already been decided by the Australian court, and the fact that the judiciary in Country B may or may not have taken my judgment into account seems to me to be irrelevant. I made orders and they were not appealed. The findings I made indicated that Australia was the appropriate forum for this matter to be determined, and, on that basis, the current application cannot succeed.
5.The matter ventilated by Mr Oakley has already been decided. The material provided by Mr Oakley is not new material. It does nothing to advance the case for a variation of the orders. On that basis, the application in a case filed 20 June 2017 is dismissed.

Application to adduce further evidence

By an Application in an Appeal filed on 2 March 2018 the father seeks to adduce evidence in the appeal.
The ability of this Court to receive further evidence on appeal is constrained (CDJ v VAJ (1998) 197 CLR 172 (“CDJ”)). Whilst in some circumstances evidence may be adduced so as to identify error on the part of the primary judge, it will not normally be admitted where that evidence is controversial (CDJ at [114)). Further, the Court may be reluctant to permit a party to adduce evidence in the appeal that they could have, but did not, seek to place before the primary judge, particularly where that evidence is deliberately withheld (CDJ at [116]). Finally, of course, the proposed evidence must meet the ordinary requirements of admissibility.
The father seeks to place four groups of documents before the Court, some of which are annexed to his affidavit filed 2 March 2018 and some of which are contained in a supplementary appeal book.
The father gave no explanation as to why this material was not placed before the primary judge, noting that most, but not all, consists of documents bearing dates prior to 4 July 2017.
The first group of documents is said to be relevant to Ground 3. That ground is a general complaint that the Court dismissed his application without considering the wellbeing of the children.
The proposed evidence consists of four letters of support written between 24 June 2014 and 2 February 2017 and two translations of conversations.
The letters were written by a Maternal and Child Health Nurse, the father’s manager at work and his general practitioner.
The letters from the last two bear a notation that suggests they were before the Court on 16 May 2016 and 7 June 2017 respectively.
It is difficult to see the relevance of those letters to the issues that were before the Court on 4 July 2017. In any event, if they had any relevance the father should have sought to rely on them before the primary judge.
The remaining two documents appear to be translations of excerpts of two conversations, which are very difficult to follow and understand. It also appears that they had been placed before Judge Burchardt on 16 May 2016.
I can see no basis on which those documents could be received in evidence in this appeal.
The second group of documents, which have been translated into English, suggest that there were proceedings in a Children’s Court in Country B between Mr G Oakley and the mother on 21 February 2018.
The evidence does not readily disclose the nature of those proceedings.
A further undated document, said to be signed by a “First Child Prosecutor” on behalf of the Ministry of Justice requests the “Head of Lists and Control Administration” to ban the children from travelling by air, land or sea.
There is also an arrest request dated 29 September 2016 and a document that suggests the children attended a preschool in 2016–2017.
Again, it is difficult to see the relevance of these documents to the issues that were before the primary judge.
The third group of documents is a set of translations of various court orders. All save two were made before 4 July 2017 and could have been placed before the primary judge.
It appears that on 10 December 2017 an order was made directed to any police officer ordering them to “hand over” the children “to their grandmother (their father’s mother) / [Ms F]”.
A further document records that on 3 August 2017 two judges of a Personal Status Court in Country B said:
This Court certifies that the execution of the above number and parties is recorded in this Court and is related to the children … since the parties are [Country B] nationals and the defendant is resident in [Country B] and the children are [Country B] nationals, this Court shall be the solely and exclusively Court of jurisdiction within [Country B] and abroad, to consider this lawsuit and all other lawsuit that may arise between them.

The father is not a party in either of those proceedings. They appear to be between the paternal grandmother, “others” and the mother.
They therefore do not deal with the issue as to the appropriate forum for the resolution of the parenting issues between the parties.
Importantly, the basis for the application determined on 4 July 2017 was a letter dated 15 June 2017, which provided essentially the same information. Thus the new document does not take the evidence any further. It merely confirms the evidence before the primary judge.
There is therefore no basis for receiving this evidence.
The last group of documents establish that a complaint has been made to the Personal Status Court that the mother and her brother have forged a letter on the letterhead of her former advocate in Country B. It is difficult to see that these allegations have any relevance to this appeal.
I would dismiss the application insofar as it relates to the documents annexed to the father’s affidavit.
The supplementary appeal book contains two affidavits of the father which were filed in the Federal Circuit Court of Australia on 30 January 2017 and 20 March 2017. As best as I can understand it, these documents were not placed before the primary judge. No explanation has been proffered as to why they were not. In any event, I do not see the relevance of these affidavits to the limited issues that were before the primary judge on 4 July 2017.
I would dismiss the Application in an Appeal.

The appeal

The Amended Notice of Appeal filed on 24 November 2017 is discursive and contains no proper grounds of appeal. Essentially it is a litany of complaints against the findings made in the judgment given on 9 June 2017, against which no appeal was taken.
The grounds of appeal do not readily disclose what errors the primary judge is said to have made. In Bahonko v Sterjov (2008) 166 FCR 415 at [3], the Full Court of the Federal Court of Australia said:
Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
(Citations omitted)
The only relevant matter that I can find relating to his Honour’s reasons is the following ground of appeal:
The decision of his Honour on 4 July 2017, totally disregarded the risk the children are in and the fact that despite the conceded and misleading views of the judicial system in [Country B] which the mothers lawyer has tried to convince the Court, her client will not be able to leave [Country B].
That complaint refers in large part to the judgment of 9 June 2017.
As to whether the injunction was properly made against the father, it is clear that the Court has the power under s 114(3) of the Family Law Act 1975 (Cth) (“the Act”) to make an order restraining a person from leaving Australia: Sampson and Hartnett (No 10) (2007) FLC 93-350 (“Sampson”); Zanda & Zanda (2014) FLC 93-607 at [135]; Gilles & Irby (2016) FLC 93-687 (“Gilles”) at [44]–[48].
The Court has recognised, however, that there are considerable restraints on the exercise of that power, having regard to a party’s general freedom of movement. The Court in Gilles said:
45.The Court went on to examine the foundation for that power, ultimately concluding that it lay in s 114(3) of the Act and not

s 68B, and went on to hold that “perhaps obviously in a parenting case, the justice or convenience of an injunction is likely to be closely connected with the parenting orders made and the findings that underpin those orders”.
46.Important to the instant issues, this Court in Sampson also held that statements by the High Court in AMS (above) “…seem to recognize the rarity of an order crafted outside the proposals of the parties, but not to exclude the possibility of such an order” before concluding that s 114(3) of the Act does give power to “enjoin a parent from relocating or to relocate”. However the power is caveated; the injunction must be “…no more than is necessary to secure the best interests of a child” noting that “[t]he proper exercise of such a power is likely to be rare…”.
(Footnotes omitted)
As emerges clearly from the above chronology, the order was made in the best interests of the children because of the real risk that if the father were to leave Australia, the children would never be returned to this country.
It is also well established that repetitive applications cannot be made for the same order unless there is a relevant change of circumstances. In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 178 the majority said:
A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust: cf. Woods v. Sheriff of Queensland; Hutchinson v. Nominal Defendant; Chanel Ltd. v. F. W. Woolworth & Co. Ltd. Of course, the changed circumstances must be established by evidence: Cutler v. Wandsworth Stadium Ltd.
(Footnotes omitted)
It can be seen from the above chronology that the application filed by the father on 20 June 2017 is the fifth occasion since 10 May 2016 on which the father’s travel to Country B has been considered by a Court and the fourth occasion on which he has applied to set aside the orders restraining him from leaving.
There may be a doubt as to whether the injunction against the father is a parenting order, given the purpose for which it was made. However, in relation to parenting orders the harm of repeated litigation in relation to children is well known (Rice and Asplund (1979) FLC 90-725; Marsden v Winch (2009) 42 Fam LR 1). In such a case, a person seeking to alter parenting orders must show that there has been a sufficient change in circumstances so as to warrant reconsideration of the parenting orders.
It is not necessary finally to determine whether the injunction against the father is a parenting order or not. Essentially the same principle applies to interlocutory or parenting orders, which is that the court will only reconsider such an order if changed circumstances have been established.
For the same reason leave to appeal may be required – see s 94AA(1) of the Act and reg 15A of the Family Law Regulations 1984 (Cth). I shall return to this matter later.
To the extent that it is said that the children are at risk in Country B – which presumably the father asserts can be ameliorated by him being permitted to travel there – there was no evidence, let alone new evidence, before primary judge on 4 July 2017 of such a risk. This aspect of the challenge must, in my opinion, fail.
The evidence relied on by the father demonstrates, assuming it to be accepted as reliable record of the proceedings in Country B, at best, that a court in Country B has declined to halt proceedings there between a person described as “the guardian [Ms F] and the mother of the children the present Respondent”. Given the careful canvassing of the issues in the judgment of 9 June 2017, in which his Honour was well aware of the proceedings that were to take place in Country B on 15 June 2017, the proposed evidence does not have a sufficient relevance to justify reconsideration of the orders already made.
The proceedings in Country B do not involve the father. That, of itself, in my opinion, greatly diminishes the weight to be given to any decision of that court.
The letter does not annex the reasons or orders of the court and does not identify the material that was before it. This too diminishes the weight to be given to the stated outcome of the proceedings. Importantly, it is not known whether the court in Country B had the history of the proceedings in Australia before it. Certainly the matters considered by the court, as recorded in the letter, do not include that history.
Ultimately, the issue is whether the letter establishes new facts which render the earlier order unjust or would warrant reconsideration of the earlier orders. It is to be recalled that the basis for restraining the father was the risk to the children of them never being returned to Australia. That risk remains, notwithstanding the apparent outcome of the interim (as they appear to be) orders in Country B. Indeed, the risk that the children might not see their mother if the father were free to travel to Country B might be increased and not decreased by those orders.
It is unfortunate that, perhaps, the court in Country B has, at least for the present, decided to maintain the proceedings there as opposed to permitting the mother to return to Australia with the children. That, however, does not oblige a court in Australia now to give up jurisdiction that it has determined it should exercise. I say “perhaps” because of the difficulties I have already noted with the letter.
The course taken by the primary judge was entirely open to him. Indeed, I see no error on his Honour’s part.
If leave to appeal is required I would refuse that leave because I do not consider that there is any reason to doubt the correctness of the primary judge’s decision.
As to the costs that were ordered, the primary judge considered that not only was the father’s application entirely unsuccessful, it was doomed to fail. The primary judge noted that impecuniosity is not, of itself, a reason not to make an order for costs. His Honour, with respect, was undoubtedly correct: Lenova & Lenova (Costs) [2011] FamCAFC 141. His Honour also noted that the father had a history of not complying with other orders including obligations to sign documents.
His Honour’s decision as to costs was, in my opinion, entirely correct.
I would accordingly propose that the appeal be dismissed.

Costs

The respondent seeks an order for costs in the sum of $3,388 calculated at the Legal Aid scale for the preparation of the appeal and the appearance today.
The appellant opposes that order. He informs us that whilst he has an income of some $2,000 per fortnight, he has significant debts that are outstanding, which means effectively that he is impecunious.
Impecuniosity is, of course, not of itself a bar to a costs order, otherwise impecunious litigants could appeal with impunity. Nonetheless, it is a relevant matter to take into account.
The appeal has been wholly unsuccessful. In my opinion, it should not have been brought.
In my opinion, the appellant should pay the respondent’s costs fixed in the sum of $3,388.

AINSLIE-WALLACE J

I agree with the orders proposed by Aldridge J and the reasons given for them.

ALSTERGREN DCJ

I agree with those reasons and the orders proposed by Aldridge J.
The orders will be:
1.The Application in an Appeal filed 2 March 2018 be dismissed.
2.The appeal be dismissed.
3.The appellant pay the respondent’s costs fixed in the sum of $3,388.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren DCJ, Ainslie‑Wallace & Aldridge JJ) delivered on 9 March 2018.

Legal associate:

Date: 13 April 2018