Omoregie v Peter Kaiser Simpson and P K Simpson & Co Pty Ltd t/as P K Simpson & Co

[2007] NSWCA 202

New South Wales

Court of Appeal

CITATION:	Omoregie v Peter Kaiser Simpson and P K Simpson & Co Pty Ltd trading as P K Simpson & Co [2007] NSWCA 202
HEARING DATE(S):	18 June 2007
JUDGMENT DATE:	16 August 2007
JUDGMENT OF:	Santow JA at 1; Tobias JA at 2; Handley AJA at 46
DECISION:	(a) Leave to appeal refused; (b) Summons for leave to appeal dated 13 November 2006 dismissed with costs
CATCHWORDS:	LEGAL PRACTITIONERS – Liability for Negligence – Motor Accident – Where there was a successful Workers Compensation claim but solicitor failed to institute proceedings under the Motor Accidents Act for same injury – Where Motor Accidents claim likely to have been successful – Assessment of damages – Whether damages against solicitor should take into account requirement to repay Wokers Compensation out of any damages awarded for the original injury – Where likely award for damages for original injury would be less than Workers Compensation to be repaid – APPEAL AND NEW TRIAL – Where indemnity costs ordered at trial due to rejection of Calderbank offer – Where not possible for notional damages to exceed award requried to avoid further indemnity costs – Where new trial would be futile and contrary to claimant’s interests - Supreme Court Rules 1 970 Pt 51 r 23(1).
LEGISLATION CITED:	Motor Accidents Act 1988 Workers Compensation Act 1987 Supreme Court Rules 1970
CASES CITED:	Kempsey District Hospital v Thackham (1995) 36 NSWLR 492
PARTIES:	Peggy Omoregie Peter Kaiser Simpson P K Simpson & Co Pty Ltd t/as P K Simpson & Co
FILE NUMBER(S):	CA 040507/06
COUNSEL:	Cl: T McKenzie / Beukes Opp: G Curtin
SOLICITORS:	Cl: Matthews Dooley & Gibson, Blacktown Opp: Colin Biggers & Paisley
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3890/04
LOWER COURT JUDICIAL OFFICER:	Hungerford ADCJ
LOWER COURT DATE OF DECISION:	25 July 2006

CA 40507/06
DC 3890/04

SANTOW JA
TOBIAS JA
HANDLEY AJA

Thursday 16 August 2007

PEGGY OMOREGIE v PETER KAISER SIMPSON and P K SIMPSON & CO PTY LTD t/as P K SIMPSON & CO

Judgment

1 SANTOW JA: I agree with Tobias JA.

2 TOBIAS JA: On 13 July 1999 the claimant, Ms Peggy Omoregie, was injured in a motor vehicle accident on her way to work (the 1999 accident) while a passenger in a taxi which was struck by another vehicle in a roundabout in Alexandria. At that time she was a client of P K Simpson & Co Pty Ltd t/as P K Simpson & Co, Solicitors (the Solicitors). They had been acting for her in relation to a workers compensation claim arising out of injuries sustained by her in a journey to work accident on 22 November 1995 (the 1995 accident).

3 Although the Solicitors processed her workers compensation claim in respect of the 1999 accident, they failed to institute proceedings in respect of the third party claim against the taxi driver/owner arising out of the 1999 accident within the statutory three year limitation period which expired on 13 January 2002. An application for leave to commence proceedings out of time against the driver/owner of the taxi was dismissed in September 2003. The claimant therefore consulted new solicitors and instituted proceedings against the Solicitors for the negligent failure to commence proceedings against the taxi driver/owner within the statutory time limit. The claimant failed in those proceedings, a verdict and judgment being entered for the Solicitors. The claimant now seeks leave to appeal that decision of the primary judge, that application and the substantive appeal having been heard concurrently.

4 In his judgment of 25 July 2006 the primary judge held that there was a breach by the Solicitors of their duty of care to the claimant and there is no challenge to that finding. The contested issue before his Honour related first, to the question of contributory negligence and second, the quantum, if any, of the claimant’s loss as a consequence of the Solicitor’s negligence. It was agreed that that loss depended on the amount of damages which the claimant would have recovered if a notional trial had been held on 13 July 2003.

5 At the time of the 1999 accident the claimant had removed her seatbelt with the consequence that when the taxi was hit, she was thrown around the rear of the cab and sustained numerous injuries. The primary judge held that she was guilty of contributory negligence by reason of the removal of the seatbelt and assessed her responsibility at 35%. That figure was halfway between a discount of 50% contended for by the Solicitors and 20% by the claimant. Although the claimant seeks leave to appeal against the primary judge’s finding of 35% contributory negligence on her part, nothing has been put to the Court that would justify the granting of leave with respect to that issue. In my view the discount of 35% adopted by the primary judge was in the circumstances well within the range applicable to the claimant’s responsibility for her injuries. It should not be disturbed.

6 It was common ground that on 4 March 1998 the Compensation Court of New South Wales made consent orders in relation to the claimant’s workers compensation claim with respect to the 1995 accident. She was awarded lump sum compensation in respect of 15% loss of use of the right leg at or above the knee ($14,883.75) and 5% permanent impairment to her back ($3,969) plus $11,147.25 for pain and suffering together with medical expenses - a total of approximately $40,000.

7 After the 1999 accident the claimant made a workers compensation claim which was the subject of consent orders made on 15 January 2002 and which included a lump sum redemption or commutation as and from 12 August 1991 in the amount of $82,274.78 in addition to payments already made. An issue arose before the primary judge as to the extent to which, when assessing the damages which the claimant would otherwise have obtained had proceedings against the taxi owner/driver proceeded to trial but for the Solicitor’s negligence, the redeemed sum of $82,274.78 should be attributed to the 1995 accident. The total amount of workers compensation received by the claimant was agreed at the sum of $158,913.13 of which the amount of $82,274.78 formed part.

8 It was submitted by the claimant that either the whole, or at least a substantial part (up to 50%) of the $82,274.78 was attributable to the 1995 accident and, therefore, was not relevant to the assessment of the notional damages which the claimant was entitled to recover as against the taxi driver/owner. On the basis of the claimant’s submission that the relevant deduction should be reduced by 50% of the redeemed amount ($41,138), the total amount of workers compensation benefits to be deducted from the notional damages would be $117,775 ($158,913 less $41,138): Kempsey District Hospital v Thackham (1995) 36 NSWLR 492.

9 In my opinion, that would be a generous reduction given that in March 1998 the Compensation Court awarded lump sum compensation to the claimant in respect of the 1995 accident. However, I am prepared to give the claimant the benefit of the doubt and will, for the purpose of this judgment, adopt the figure of $117,775. I should add that the primary judge was not required to determine this issue for reasons I shall explain.

10 Nevertheless, what it means is that unless the claimant was entitled to recover notional damages against the taxi driver/owner exceeding $117,775, she would not have suffered any loss as a consequence of the Solicitors’ negligence and would fail in her claim against them. That is in fact what occurred.

11 It should be made clear at the outset that the primary judge made a number of adverse credibility findings with respect to the claimant’s evidence concerning her complaints including the extent to which she was able to engage in gainful employment. The issue of her credibility was accepted by the parties at trial as being critical as the claimant’s relevant loss was the value of her lost opportunity to take proceedings for personal injury damages against the taxi driver/owner. The assessment of that loss necessarily involved an assessment of the likely damages that she would have received had proceedings been instituted within the limitation period.

12 In the 1995 accident, the claimant suffered injuries to her right ankle and knee as well as to her lumbar spine and, to a lesser extent, her left knee. By the time of the 1999 accident the injury to her right ankle had resolved itself. However, generally speaking in the 1999 accident she aggravated the injuries to her knees, lumbar spine and neck as well as sustaining an injury to her shoulders. However, apart from 8 weeks off work from 13 January 1999 to 10 March 1999, she returned to part-time work for four hours per day for 13 weeks and then six hours per day for 20 weeks. On 29 October 1999 her employment with Central Sydney Area Health Service was terminated as there was said to be no more part-time work available for her. In 2002 she commenced to operate a child-care facility at her home looking after five young children between the ages of 0-5 years, five days per week.

13 The primary judge found that by the end of October 1999 the claimant was fit to perform her pre-injury employment of a clerical nature (she had been employed at Royal Prince Alfred Hospital since 1991 as a Data Entry Clerk) or similar duties such as a ward clerk subject only to a continuing need for travel assistance to and from work due to the knee problems sustained in the 1995 accident.

14 As far as the claimant’s credibility was concerned, the primary judge came to the following conclusion:

“Consistent with the findings made on the medical evidence thus far, I consider that the plaintiff’s continued complaints of pain and disability in the various parts of her body referred to as being, at the least, grossly exaggerated and, at the most, a simple resistance to the return to work she was capable of performing. Certainly, the rehabilitation reports demonstrated difficulty in the provider obtaining the plaintiff’s full participation. The plaintiff’s conduct of a childcare business, in my view, is confirmatory of her fitness and physical ability to work in a suitable occupation such as a sedentary clerical position.”

15 When assessing her notional damages arising out of the 1999 accident, the primary judge, after accepting that the accident was traumatic for the claimant, nevertheless concluded that in that accident she only

“suffered minor injuries of a soft tissue nature to the neck, shoulder blades and upper torso; she hit her head and knees. She received conservative treatment and physiotherapy. Symptoms from the injuries undoubtedly existed causing two months absence from work but then with an ability to return to work for half the normal hours for three months and then three quarters of the normal hours for a further four months. She was then fully fit to resume her pre-injury duties on a full-time basis as injuries caused by the subject accident had resolved. Any difficulty she thereafter experienced, such as her knees, shoulder and back, pre-dated in a causal sense the January 1999 accident as being related to the 1995 fall and degenerative changes. In any event, the extent of symptoms and disabilities experienced were grossly exaggerated by the plaintiff.”

16 Accordingly, his Honour assessed non-economic loss at 15% of the most extreme case, which resulted in her damages under this head being assessed at $3,000 pursuant to s 79A of the Motor Accidents Act. In the light of his findings as to her condition and work capacity he assessed her past economic loss for a closed period from 13 January 1999 to 29 October 1999 but not thereafter as the latter date was

“the date by which any injury or disability causally related to the subject accident had been found to have ceased.”

17 His Honour therefore assessed past economic loss in the sum of $7,624 together with past loss of superannuation in the sum of $609.96. Past out of pocket expenses were agreed at $25,301.65. Given that his Honour had found that she was not suffering from any incapacity post-October 1999, he allowed nothing for future economic loss or future out of pocket expenses. After allowing $5,206.62 in respect of the Fox v Wood component of her damages, the primary judge assessed the total damages she would have recovered had an action been brought within time in the sum of $41,742.73 which, after being reduced by 35% on account of her contributory negligence, resulted in a net assessment of her notional damages in the sum of $27,132.78.

18 As any deduction for the workers compensation benefits (whether as contended for by the claimant or by the Solicitors) far exceeded the notional damages as assessed, it was unnecessary for his Honour to determine the issue to which I have referred in [7] above or to deal with her further submission that the amount of the workers compensation deduction should be reduced by 35%, that being the discount for her contributory negligence. It followed that as the claimant had not sustained any loss by virtue of the Solicitors’ negligence, his Honour entered a verdict for the Solicitors.

19 As an offer of compromise had been made by the Solicitors to the claimant on 12 April 2005 of $50,000 in settlement of her action together with costs to be agreed or assessed, a question then arose with respect to costs. This offer was increased on 15 August 2005 to $70,000 plus costs. On 15 September 2005 the claimant counter-offered with $325,000 plus costs and on 18 October 2005 this was reduced to $230,000 plus costs. Since the action against the Solicitors was not covered by s 151Z of the Workers Compensation Act 1987, the workers compensation benefits received by the claimant were not repayable from the damages, but the damages had to be reduced by the amount of those benefits to prevent over compensation. This meant that the claimant would not be entitled to a verdict unless her notional damages exceeded $117,775. It also meant that the solicitor’s offer of compromise of $70,000 presupposed a notional assessment of her damages at $187,775.

20 As the claimant did not recover anything she was ordered to pay the Solicitors’ costs of the proceedings on a party/party basis up to 12 April 2005 and thereafter on an indemnity basis. The relevance of these offers is that upon the assumption that the claimant establishes error on the part of the primary judge which impacts upon his assessment of her notional damages for the 1999 accident, it would be incumbent upon her on any retrial on the issue of damages to establish a notional entitlement to damages against the taxi owner/driver of at least $187,775 after taking into account the discount of 35% for her contributory negligence.

21 As the primary judge pointed out, the claimant has seen some 18 doctors with respect to the injuries sustained by her in both accidents. One party or the other or both tendered all of the medical reports. They filled approximately 1½ lever arch folders. However, the major issue that arose on the assessment of notional damages was whether the claimant’s injuries as sustained by her in the 1995 accident had resolved by October 1999 leaving her without any ongoing injuries or disabilities caused by that accident. In this respect it was accepted that she would still suffer problems with her knees, back and neck both as a consequence of the 1995 accident as well as a result of age-related degenerative changes.

22 Ultimately, the primary judge accepted the Solicitors’ submission that the claimant had suffered relatively minor injuries in the 1999 accident that had resolved by October 1999 and that thereafter she did not suffer from any injuries or disabilities attributable to that accident above.

23 In so finding, his Honour relied upon the opinions expressed by Drs Matheson and Nash and Professors Higgs and Ehrlich. Dr Matheson was a consultant neurosurgeon and in his report of 21 July 2003 opined that the claimant’s complaints were unconvincing with no underlying pathology to support them. He did not believe that she had sustained any serious injuries in the 1999 accident and that she had made a full recovery from any minor bruising she may have sustained therein. In particular he considered that there was no evidence that her right knee was made any less stable by that accident and that there was no relationship between the alleged injuries sustained by her in the 1999 accident and her current condition. He considered her fully fit for work.

24 The primary judge accepted that Dr Matheson’s view was “at the extreme” but that, putting aside the knee problem, in essence it was similar to the views expressed by Dr Nash in his report of 14 July 2003. In that report he opined that the claimant was suffering from minor aggravation of degenerative changes in the cervical spine; a musculo-ligamentous sprain of the lumbosacral spine; Grade IV chondromalacia of the lateral tibial plateau in the right knee and tendonitis of the left shoulder. In his opinion she sustained injury to the cervical spine and shoulders in the 1999 accident. She no doubt suffered from degenerative changes in various areas of her body including the cervical spine, lumbar spine and knees which had been aggravated by the 1999 accident. However, in Dr Nash’s opinion the claimant was fit to work as a childcare carer looking after young children or managing a small shop as she said she would like to do. Her knees would be vulnerable to standing for long periods, squatting, kneeling and climbing stairs. On the basis of general degenerative changes, which were largely constitutional and age-related, she would be unfit for lifting weights in excess of 10kg, frequent bending, twisting or working in confined spaces and her shoulders would be unfit for working at or above shoulder level on a repetitive basis. As far as Dr Nash was concerned her prognosis was confined to continuing disability in the right knee and progression of degenerative changes.

25 Professor Ehrlich expressed similar views. In his report of 16 February 2005 he expressed the opinion that the claimant had sustained some soft-tissue strains and contusions in the 1999 accident. However, she had readily agreed with him that following that accident she was quite capable of doing her work at Prince Alfred Hospital after returning to full-time duty and believed that her eventual dismissal in October 1999 was because there were no light duties available for her. According to the claimant this was a contrivance because of her employer’s reluctance to continue providing her with cabcharge vouchers for travelling to and from work.

26 Professor Ehrlich considered that there might have been some aggravation of her right knee symptoms following the 1999 accident but that the pathology clearly preceded that incident as the MRI scan revealed. He considered that she was fit for work as a clerical assistant being the work she was performing at the time of the accident. He also considered that she was now doing work that was physically much more demanding in running a childcare centre. He therefore considered that there was no evidence of any ongoing physical injuries related to the 1999 accident.

27 Although the claimant submitted that the primary judge erred when finding that Dr Matheson’s opinions, albeit extreme, were not far from those expressed by Dr Nash because the former considered she was fully fit for work whereas Dr Nash considered that she had aggravated degenerative changes that made her unfit for tasks such as lifting weights in excess of 10kg etc., her main attack was concentrated on his Honour’s consideration of the opinions of Professor Higgs in his report of 10 January 2006. Relevantly, his Honour noted that Professor Higgs had recognised the traumas of both the 1995 and 1999 accidents but had also commented that “any aggravation that has previously been suffered has long since ceased”. He noted that Professor Higgs had added that

“all of the clinical and investigatory evidence has caused me to form the conclusion that Mrs Omeregie’s neck and lumbro-sacral spinal systems are causally associated with pre-existing and co-existing, age-caused degenerative cervical and lumbo-sacral spinal pathology.”

His Honour also observed that Professor Higgs considered the claimant “ fit for work … of a clerical and/or supervisory nature ”.

28 There is no doubt that the primary judge was correct in concluding that Professor Higgs had opined that the claimant’s symptoms and impairment of function were substantially to be associated in a causal sense with the normal process of ageing. Further, it is also correct that Professor Higgs had formed the opinion that notwithstanding that the claimant had suffered from aggravation of her lower back and neck conditions in the 1999 accident, that aggravation had long since ceased.

29 In his “Impairment Assessment” Professor Higgs considered that the claimant suffered a 15% permanent impairment to her neck function when that function was considered as a whole and when compared to that of a most extreme case. However, he also concluded that that impairment was entirely associated with the presence of pre-existing and co-existing age related degenerative cervical spinal pathology. The primary judge specifically referred to that opinion.

30 Although not specifically referred to by his Honour, Professor Higgs was of the same view with respect to the impairment of the claimant’s lower back function which he considered to represent a 10% permanent loss of back function compared to that of a most extreme case. He was also of the opinion that the impairment of back function was similarly causally associated.

31 The complaint made by the claimant is that the primary judge failed to appreciate that Professor Higgs had expressed the opinion that she also suffered from the loss of efficient use of her right and left arm associated with the restriction of the right and left gleno-humeral joint motion, with right and left sided acromio-humeral impingent syndromes and with age related degenerative osteoarthritis of the right and left acromio-clavicular joints. He considered that she had sustained a 20% loss of efficient use of her right arm and a 15% loss of efficient use of her left arm.

32 With respect to those losses Professor Higgs concluded that two fifths could be causally associated with the 1999 accident. Translating that two-fifths to the total percentage loss of efficient use of each limb would result in a finding of an 8% permanent loss of efficient use of the right arm and a 6% loss of efficient use of the left arm causally related to the 1999 accident.

33 Similarly, his Honour did not refer to Professor Higgs’ opinion that the claimant was suffering a 20% permanent loss of the efficient use of each leg of which one quarter was causally associated with the consequences of the 1999 accident i.e. 5%. Professor Higgs therefore considered that although any aggravation to her pre-existing cervical and lumbo-sacral spinal pathology had long since ceased, the claimant did continue to suffer from shoulder girdle and knee joint symptoms on both sides partially related to the 1999 accident. He said:

“The injury incident that occurred on 13/01/99 is probably cause for Mrs Omeregie to have suffered injuries to the right and left glenoid labra, and from a tear of the left supraspinatus tendon. This injury incident probably also caused Mrs Omeregie to suffer from aggravation of pre-existing, and co-existing, right and left sided acromio-clavicular joint degeneration. Any aggravation suffered to this degenerative acromio-clavicular joint pathology has, in my opinion, long since ceased. The direct blow suffered to both knee joints did clearly cause Mrs Omeregie to suffer from aggravation of pre-existing, and co-existing patello-femoral joint pathology. It is my opinion that this aggravation does continue.”

34 Notwithstanding the foregoing, Professor Higgs considered that the claimant was fit to work albeit only in a clerical and/or supervisory capacity including the performance of office work. So much was referred to by the primary judge. However, the Professor also opined that the claimant should avoid any working activity known by her to aggravate her symptoms. In particular she should avoid lifting objects weighing more than 10kg and pushing or pulling objects weighing more than 15kg; that she should avoid any activity associated with static neck and spinal postures; should be allowed to frequently change her posture to take short periods of rest when working; she should avoid any work that required repetitive bending, twisting and stooping with the lumbar-sacral spinal region. Because of her knee problems she should not perform any work that required there to be any regular or repetitive negotiation of steps, slopes, stairs or ladders; and to avoid any working activity that required the elevated use of her upper limbs above chest level.

35 Although complaint is made by the claimant that the primary judge failed to acknowledge the strictures referred to by Professor Higgs with respect to her working capacity, most of those were related to avoiding aggravating her neck and lower back symptoms which, insofar as they had been aggravated in the 1999 accident, had long since ceased! Furthermore, the strictures, which were obviously directed to the problems associated with her knees, would not have restricted her ability to perform the type of clerical work that she had performed prior to the accident as well as subsequent to it. For instance, there was nothing in the evidence to suggest that in performing her pre-accident clerical work she would not be able to change her posture from time to time.

36 Accepting for present purposes that the primary judge erred in failing to take into account the ongoing symptoms causally related to the 1999 accident with respect to the claimant’s knees and shoulders, the question arises as to whether that was an error which should result in the granting of a new trial confined to the issue of damages. A new trial would be futile unless there was a real possibility of it resulting in an assessment of the notional damages recoverable from the taxi driver/owner of $187,775 if the claimant was to avoid having to pay the Solicitors’ costs of a new trial on an indemnity basis. The notional judgment would have to be calculated after reducing the claimant’s notional damages by 35% to reflect her contributory negligence.

37 The difficulty facing the claimant is that although she was still suffering from a 5% permanent loss of efficient use of her upper legs due to the aggravation in the 1999 accident to her right and left knee and 8% permanent loss of the efficient use of her right arm and 6% permanent loss of the efficient use of her left arm above the elbow joint due to the injury to the shoulder girdle, nevertheless Professor Higgs considered that she was fit to work perform work of a clerical and/or supervisory nature and that, accordingly, she was fit to perform office work activities. Certainly there were a number of restrictions but they generally related to the symptoms from the 1995 accident. Furthermore, Professor Higgs did not suggest that any of those restrictions were likely to impede her ability to perform work of a clerical and/or supervisory nature.

38 In these circumstances, at its highest, I do not believe that on a new trial the claimant would be entitled to an amount for future economic loss other than a cushion in a sum not exceeding $50,000.

39 The primary judge assessed the claimant’s non-economic loss at 15% of a most extreme case. The claimant submitted that given those aspects of Professor Higgs opinion which had been overlooked by the primary judge, on a new trial that figure would be increased to 30% resulting in non-economic loss in the sum of $71,000.

40 However, in my opinion and taking into account the matters referred to by Professor Higgs which it was submitted were ignored by the primary judge, an increase in non-economic loss to 30% of an extreme case would, in my view, be beyond the legitimate range which could be adopted. In my view at most the upper end of the range would result in an increase of non-economic loss from 15% to 27% or $32,000 in round figures. When one adds in past economic loss - $7,624; loss of superannuation - $210; past out of pocket expenses - $25,302, a Fox v Wood component of $5,207 and a $50,000 cushion for future economic loss, the resultant total is $120,343 which, after deducting 35% for contributory negligence, nets $78,223, well short of $187,775.

41 Even if one took the figures advanced by the claimant on the appeal, being non-economic loss of $71,000, past economic loss of $15,000, future economic loss of $110,000, past and future superannuation loss (say $10,000), past out of pocket expenses of $25,302, future out of pocket expenses of $9,000 and a Fox v Wood component of $5,200, the total is $245,502 of which 65% is $159,576 which is still significantly less than what the claimant must achieve if she is to avoid the risk of having to pay the Solicitors’ costs of any new trial on an indemnity basis.

42 This Court is mandated not to order a new trial unless it appears that some substantial wrong or miscarriage has been occasioned: Supreme Court Rules Pt 51 r 23(1). In my view, even accepting for present purposes that there has been a relevant error on the part of the primary judge justifying intervention by this Court, it is not possible to find that there is a possibility, let alone a probability, that on a new trial the notional damages to which the claimant would have been entitled as against the taxi driver/owner, after taking into account the claimant’s contributory negligence of 35%, would result in an amount exceeding $187,775 which is necessary to avoid the risk of the claimant being required to pay the costs of the Solicitors of any new trial (as well as the first trial) on an indemnity basis.

43 Accordingly, in my opinion to order a new trial would be futile and contrary to the claimant’s interests. It follows that there has not been a substantial wrong or miscarriage which would justify the making of such an order.

44 Because the Court reserved its decision in this matter, I have set out in greater detail than would normally be the case my reasons for expressing a view which I tentatively held at the outset, namely, that leave to appeal should not be granted in this matter as the prospects of the claimant obtaining a realistic verdict in her favour on any new trial on the issue of damages are remote and do not warrant an order for a trial.

45 Accordingly, I would propose the following orders:

(a) Leave to appeal refused.

(b) Summons for leave to appeal dated 13 November 2006 dismissed with costs.

46 HANDLEY AJA: I agree with Tobias JA.

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