Phillips v Phillips
[1995] HCATrans 319
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P14 of 1995
B e t w e e n -
ROBERT HARVEY PHILLIPS
Applicant
and
SUZANNE BETTY PHILLIPS
Respondent
Application for special leave to appeal
TOOHEY J
GAUDRON J
GUMMOW J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON THURSDAY, 26 OCTOBER 1995, AT 10.45 AM
Copyright in the High Court of Australia
MR C.A. GRASSO: May it please your Honours, I appear for the applicant husband. (instructed by Millsteed Grasso)
MR P.M. DOWDING: May it please your Honour, I appear for the respondent. (instructed by Dowding Crooks & Hynes Legal Group)
TOOHEY J: Yes, Mr Grasso.
MR GRASSO: This application for special leave would not have been brought and would normally be conceded to be unsuccessful if it were from a State Supreme Court. A special reason of public interest relates to the reasons given by the Full Court and the public interest factor is the issue that the Full Court of the Family Court and the Family Court is an independent tribunal. There is no intermediate court of appeal. Once you go from the trial judge to the Full Court there is no intermediate ground of appeal elsewhere. So, we have a situation where the Full Court, in effect, polices itself and runs its own tribunal completely. It is because of that and what I submit is gross deviation from principles which have been well canvassed by the Full Court as late as 1993 in the case of Devries v Australian National Railways Commission and in the Abalos Case, the principles which, it is submitted, the Full Court did not adhere to or show any conscious or subconscious adherence to. Those principles which are well pronounced and well known simply were not followed.
There is no decision in the Family Court, the Full Court, regarding this particular issue of overturning, which is what happened in this case, a trial judge’s finding based on credibility in circumstances where the reasons for the overturning basically occurred in 11 lines. I refer to the book at page 124 point 40 where their Honours state as the reasons for overturning the finding of credibility, and the finding was did the husband have assets overseas. The husband said, “No, I do not”. The wife said, “Yes, you do”. The trial judge made an exhaustive analysis of the facts, financial documentation, discovered documents, and was able to conclude in his judgment - and I can refer your Honours to it shortly - that all the money was accounted for. The Full Court simply said, “We do not believe him”. At 40, page 124, they say:
Given the state of the evidence to which we have been referred -
the next reason is -
to other evidence drawn to our attention -
it is just a repetition of the first point -
the failure of the husband to make a full and frank disclosure -
The trial judge made that finding that there was a failure to make a disclosure. He did make that finding, and he canvassed that finding in his reasons. He went on to say from there, there was no non‑disclosure of assets. Then the Full Court continued:
his failure to call relevant witnesses -
There were two witnesses which were not called: one was a person by the name of Garvey, who was only relevant to the business of Cortran, which the trial judge considered at length and found that the business of Cortran, the value could not be quantified because of continuing litigation. It was either worth a lot of money or it was worth no money. The witness, Corbett, was overseas, and a statement was prepared, given to my learned friend regarding Corbett. It was an inadmissible statement for reasons canvassed in the trial and that witness was not called. The Full Court then says, for those reasons, namely the state of the evidence, the other evidence, failure to make frank disclosure, failure to call witnesses, the only inference to be drawn is that the husband has got assets which he did not ‑ ‑ ‑
TOOHEY J: Mr Grasso, can you take us to an express finding by the trial judge that there was no failure to disclose assets?
MR GRASSO: Yes. Actually, I have prepared some short references to the evidence. My learned friend has a copy.
TOOHEY J: I was not inviting you to take us to the evidence. I was inviting you to take us to a finding, if there be one, in express terms or, if necessary, by implication, that there had been no failure to disclose assets.
MR GRASSO: Yes, your Honour, there is.
TOOHEY J: Where is that?
MR GRASSO: I will be very short if I go through these points. The issue was money overseas. If I refer to page 9 point 30, the question was did the husband disclose overseas moneys. At point 30 the trial judge found:
As Gundiguy Food Products was a debtor of the Castlereagh Trust it is fairly obvious that funds were sent to Gundiguy Food Products.
That was overseas. At page 9 point 20 it is referred: It says:
Gundiguy Food Products Pte Ltd was incorporated in Singapore.
So, at 30 the trial judge made a finding funds were sent to Singapore. We go to page 11 point 35 where the trial judge makes a specific finding that:
The husband has made no secret of transferring funds to Gundiguy Food Products. The minutes that the wife refers to in paragraph 42 of her affidavit were obtained from the husband’s discovery -
they were in the discoverable documents -
and a perusal of the accounts of the Castlereagh Trust which are annexed to the husband’s principal affidavit -
that is the affidavit‑in‑chief -
disclose that advances were made to Gundiguy Food Products. What is undeniable is that the husband was able to move funds out of Australia to the account of Gundiguy Food Products.
At page 39 point 20 the trial judge was able to make a finding that the money which went to Gundiguy Food Products ended up in the hands of another company which was Respite. He states:
The logic of it is that moneys that were sent overseas ostensibly for business ventures with Gundiguy Food Products Pte Ltd ended up in the hands of Respite Ltd.
Then at page 39 point 35 the ‑ ‑ ‑
GAUDRON J: That was the company which your client denied any association with or any beneficial association with?
MR GRASSO: That is correct, your Honour, and the trial judge made a finding that was wrong; that was incorrect.
GUMMOW J: He disbelieved your client.
MR GRASSO: On that point, yes, your Honour. That is correct. He went further at page 39 point 35 and stated:
I am satisfied that there were funds in Respite that belonged to the husband having come via the moneys that were sent overseas when Gundiguy Foodstuffs was established, but the husband had to get those moneys back to Australia in order to meet his taxation liabilities and pay off the loan of $200,000 to the National Bank
So, the trial judge was able to trace those moneys. If we go, again, to page 11 point ‑ ‑ ‑
GAUDRON J: There is a little bit further: “None of this shows up in the accounts above-mentioned.”
MR GRASSO: They were the accounts of Respite.
GAUDRON J: Yes, which the trial judge found was owned by your client.
MR GRASSO: That is correct, your Honour.
GAUDRON J: And which had been concealed.
MR GRASSO: What the trial judge found had been concealed was the husband saying, “I do not know anything about Respite” - - -
GAUDRON J: Yes, his beneficial ownership of it.
MR GRASSO: The trial judge said, “Yes, you do, and in fact, the moneys that came from Respite which you say are a loan, are, in fact, those moneys that went overseas and they came back into Australia”. The submission I make there, your Honour, is that the trial judge considered the serious nature of the non‑disclosure made there, and despite that was able to analyse the evidence and conclude that all the money had been accounted for. The husband was cross‑examined over a period of several days by my learned friend ‑ ‑ ‑
GUMMOW J: It is not a case where your client emerged with his credit intact at the trial.
MR GRASSO: He did, your Honour, only when it came to the issue of whether there were assets ‑ ‑ ‑
GUMMOW J: No, he did not. You could not have had the findings at 39. You could not have had the findings at 39. It is quite a serious matter, really. It is a lot of money.
MR GRASSO: Yes, I take the point, your Honour. Then it becomes a question of how is that causally related to whether there are overseas assets.
GAUDRON J: You have this problem, have you not? The accounts of Respite were inadequate, insufficient.
MR GRASSO: That is correct.
GAUDRON J: The husband had lied about his beneficial association with the company; about the moneys. How could you be satisfied on any basis that all the money was spent; that all the money had come back to Australia, when the accounts were deficient?
MR GRASSO: That is a valid question, your Honour. It was only the accounts of Respite which were deficient. His Honour the trial judge at page ‑ ‑ ‑
GAUDRON J: But it is the accounts of Respite that would have to be examined before any firm conclusion could be reached.
MR GRASSO: Unless, as the trial judge did in this case, he looked at what money they had here in Australia - this was in 1984 before they went on sojourn to England - then he looked at what money was taken overseas, and he looked at what money came back. It all tallied. That is the analysis the trial judge made at pages ‑ ‑ ‑
GAUDRON J: It still leaves unanswered whether there were other moneys in Respite.
MR GRASSO: Respite, your Honour, was only set up during the sojourn to England in 1984 to 1986 which means that as a starting point the husband had all the assets here in Australia at the beginning before they went to England. The overseas transfers, as the trial judge found, commenced when they went on sojourn to England. The trial judge traced what they had here in Australia, and he starts doing that at page 22 of the book through to page 24, and he is then able to come to the conclusion that all the money is accounted for; because there was a finding made by the trial judge the husband did not work in England at all. There were no funds generated while they were overseas. All the funds were generated shortly before or just after the marriage started. They had already been generated. There were findings made by the trial judge in that regard. The husband said in his evidence‑in‑chief that he told the wife - in fact, the wife said that upon marriage he told the wife and the wife said that her husband said “I have about just over $1,000,000 in assets”.
The husband tracked down what he did have before the marriage, or at the time of marriage, and it was that much. Then, having made the analysis of what he had at the end, it was all accounted for. It concludes at page 23 of the book where the trial judge says, having considered all the assets in the companies before the sojourn to England when no money was earned after that time:
The net worth of the companies and trusts after ignoring the debts to the two boys is -
and it comes out to $1,046,000.
Be that as it may, your Honours, I take your Honour’s points about have we got the truth. The trial judge thought he did after 12 days of evidence, after four months of consideration and that will be a point for the appeal. But the point of public interest, your Honours, is that the Full Court, in their judgment, take a very cursory line of reasoning when they come to give their reasons and overturn issues of credibility.
TOOHEY J: I did not think that was the basis of the application for special leave to appeal but it is certainly the basis upon which you are now arguing it. I thought, reading the papers and the grounds of appeal, that what was being suggested was that the Full Court erred in taking into account the existence of assets, the precise identity or amount of which could not be ascertained by reason of the failure of one party to make an adequate disclosure and that this Court was being asked to cast some doubt upon the earlier decision of the Family Court in Weir v Weir.
MR GRASSO: That was the second ground, your Honour. The first ground was a failure to give reasons and it is to that ground that I have addressed most of my oral submissions.
TOOHEY J: But this is an application for special leave to appeal. The Court would ordinarily be looking for some question of general principle or some other basis that would warrant a grant of special leave; not to become involved in a detailed consideration of the fact finding by the primary judge and the approach taken to the fact finding by the appellant court.
MR GRASSO: The issue I was taking was not the fact finding decision but the point of principle being that the Full Court of the Family Court which in a judgment which we say overturns an issue on credibility gives no reference, conscious or unconscious, whatsoever, to the well-known lines of authority that apply in mainstream law and which the Full Court has over and over again from time to time restated and the point of issue is that we have a tribunal which - the legislature cannot correct that problem. It is only open to the High Court to put the Full Court back on the rails in that regard. The submission I make is that the precedent set by this judgment where it simply says, “Because of the evidence, we think the husband is not credible” is completely unsatisfactory.
The public interest factor is that we have a case where one in three marriages end up in divorce. The Full Court is the court which most Australians would come into contact with and it cannot be allowed that findings overturned on credibility without giving reasons. The court does not even make any detailed reasons why. It does not consider the trial judge’s thorough analysis. That is why, your Honours, at the inception I said if this was an appeal from a State court we would not have attempted to seek special leave. It is because it is from the Full Court of the Family Court.
I have not been able to find any decision where this particular issue has been canvassed by the Full Court. There are many cases in the Family Court dealing with discretion and the circumstances in which a Full Court should overrule discretions by a trial judge such as the case of Gronow and many others. One can appreciate that in a trial situation it is fair and reasonable for the trial judge to be perhaps somewhat loose in exercising his discretion on issues of custody and property settlement but that looseness of principle should not creep into the appellate process. There is no one else who can correct this. It is not for the legislature to tell the Family Court reasons - - -
GAUDRON J: What is it exactly that you want corrected?
MR GRASSO: What we say should have happened, your Honour, is that the Full Court should have said why the husband was found to be not credible.
GAUDRON J: It was not why the husband was found to be not credible. He was already found to be not credible by the trial judge in relation to the most material matter to this issue, namely, his control of a company in the Channel Islands, Respite. He had already been found unreliable in that and given the evidence as to the movement of moneys and given the absence of any accounts from Respite which your client had undoubtedly concealed, this assertion that he had no connection with Respite, the Court of Appeal said, “No, the only inference was not the one that the trial judge drew. The trial judge was wrong in that inference. The only inference is that there are assets overseas”. That is explained why they have changed the - - -
MR GRASSO: But Respite was the company which came into existence several years after marriage and only for a short time was it utilised. The assets which existed were found to be known before marriage. They were tallied up after the parties returned and they equalled. The submission we make is that the Full Court should have - - -
GAUDRON J: The difficulty is this: if there were moneys in Respite, if they could be accounted for, why did your client lie about it? That is what the Full Court was saying, “There is only one explanation for his lying about this which the trial judge found he did, namely, that there are moneys there”.
MR GRASSO: With respect, we would say that that is not an inference which is open as to - - -
GAUDRON J: It would be the only inference I should think that was open.
MR GRASSO: I understand what your Honour is saying but the question is there is no reason given by the Full Court as to what was the evidence and the reason why. Your Honour is doing the job of the Full Court now.
GAUDRON J: I would have thought that that is exactly what they were saying.
MR GRASSO: They have not said that. They have just said, “Given the state of the evidence, to the other evidence, the plaintiff” - and those are issues, your Honour, which the trial judge did find. He did find those points and he, nevertheless, was able to conclude after 12 days of evidence, that the assets were properly accounted for. The concern is was the Full Court jumping to conclusions by simply saying, “Well, the only reason he could have hidden about Respite is because there must be something else there”. Perhaps there was another reason. The trial judge considered all the evidence. What we say is the point of public interest is that we do not have the usual line of authorities which the Full Courts normally give when they come to set aside issues on credibility and the authorities of the High Court on issues of credibility are well set out as to the principles to be followed.
We do not have the line of authority. We do not have any oblique reference to the fact that the trial judge’s finding on credibility, the trial judge who observed the demeanour of the husband - that should be
uninterfered with in extreme cases of palpable glaring obvious improbability of the findings made by the trial judge. We do not have that. That is the point of public interest. There are only 11 lines at page 125 where they overturn all the extensive analysis made by the trial judge as to the assets before and the assets after.
We do not resolve from the adverse findings made against the husband. We accept those. The trial judge made them. Why did the trial judge, having made those findings, still find, after 12 days of evidence, several days of cross-examination, that all was accounted for? We say that we should have had more extensive reasons rather than just simply a bland statement saying, “We are not going to believe it. We think there are more assets”. My time is concluded.
TOOHEY J: Yes, thank you, Mr Grasso. We need not trouble you, Mr Dowding.
The Full Court of the Family Court held that the primary judge erred in not having regard to the existence of assets which the respondent failed to disclose and that therefore the appeal should be allowed. However, the actual orders made by the Full Court in relation to property settlement and maintenance were made by reference to the assets which had been disclosed. In those circumstances, this is not an appropriate case for examination of the approach taken by the Family Court in Weir v Weir (1993) FLC 92-338.
In consequence, the other questions which the appellant wishes to agitate on appeal do not truly arise. In any event, they are not such as to attract a grant of special leave to appeal. Accordingly, the application is refused.
MR DOWDING: My application is for costs, your Honour.
GAUDRON J: What does the Act say about that?
MR DOWDING: The Family Law Act, under section 117 provides that, in the ordinary course, costs are to be borne by each party. But that is not the case that follows from an appeal and, in any event - - -
TOOHEY J: I thought the section itself dealt only with costs as ordered by the court, which I take to be the Family Court.
MR DOWDING: The Family Court, your Honours.
TOOHEY J: Once you move beyond the Family Court to this Court, are costs simply governed by ordinary principles and, in particular, is there any restriction arising from the Family Law Act as to the way in which costs should be awarded or not awarded?
MR DOWDING: I would submit there is none. It is only within the Family Court that 117C is appropriate and even then, I must say as a matter of application of section 117C, it is regarded as being a matter for the determination by the primary judge of the issues and not applicable to the appeal process. But my submission to your Honours is that there is no reason to depart in the High Court from the ordinary principles applicable to litigants in the High Court. Indeed, even if that were not accepted under the ordinary principles of 117C of the Family Law Act, costs, in my submission, ought to be awarded in a case having regard to the various factors. But, in my submission, that issue does not arise.
GAUDRON J: My recollection of earlier applications for special leave from the Family Court is that costs questions have been determined on the basis that there should be some special reason to depart from the policy inherent in the Family Law Act.
MR DOWDING: Your Honour, may I say that that is not an issue that I was able to examine because your Honours do not publish your Honours’ reasons for special leave in a form where I could examine it. I would submit that there is not authority for that proposition but if there were a policy issue that your Honour refers to then, in my submission, in a case like this, the policy issues, one might look at section 117(2) as an indication of what that policy might be and in those circumstances, section 117, in my submission, in this case, the policy would be that the costs ought to follow the event.
This is an application for special leave which your Honours have refused without hearing from the other party. Patently, in my submission, the Full Court was right. The conduct of bringing this application is a diminution of what are, for the wife, very scarce resources. The evidence before the Full Court was that at least $500,000 went overseas in 1987‑1988, which has never been accounted for and the inference that the Court might draw as to the various facts and circumstances would be that the husband has a pool of assets of at least $500,000. So when one compares that with the matter of the respective means of the parties which is 117(2A)(a), “the financial circumstances of each of the parties of the proceedings”, it would be appropriate, in my submission, for costs to follow.
GAUDRON J: What, we are taking account of $500,000 assets available to the husband, are we, or more?
MR DOWDING: I am saying to your Honours that on the Full Court’s findings - - -
GAUDRON J: What are the assets that go to the wife pursuant to the court’s order?
MR DOWDING: She gets 80 per cent of something under $800,000.
GAUDRON J: So, we have got on one side approximately $600,000, have we, and $500,000? Is that what we take into account?
MR DOWDING: I am sorry, I did not hear your Honour?
GAUDRON J: Well, is that how we do it when we have regard to the means of the parties: $500,000 and $600,000?
MR DOWDING: Well, yes, plus, your Honour, all of those things that adverse inferences ought to be drawn against the husband because as you see - - -
GAUDRON J: There were adverse inferences drawn against the wife too at first instance.
MR DOWDING: But none in relation to her means, your Honour. I mean, that was one of the criticisms of the Full Court of his Honour’s judgment. She was really a women where each of the issues that his Honour focused on being critical of her had no relevance to any of the factual matters that ought to have influenced his Honour’s judgment. In fact, an indication of the proper orders that should be made is that the Full Court gave the wife the costs of the appeal.
If that is an indication of some of those policy issues, your Honours will see that the Full Court went further than simply giving the wife the costs of the appeal. They actually gave her three-quarters of the costs of the lower court hearing plus the costs of the appeal. Paragraph 6 on page 135 indicates that the Full Court thought it appropriate, having reviewed all of the facts and circumstances, for there to be an order for costs against the husband. Your Honours, if one looks at the financial position of the husband - I mean, if I am right in following this line that 117 provides some policy indication which the High Court might wish to follow on the question of costs, the first issue is the financial circumstances and in that respect the Full Court really made the finding that, firstly, there was $535,000 sent overseas between 1987 and 1988 which has never been accounted for.
TOOHEY J: But you do not get to financial circumstances, or do you, under (2A) unless you first move through subsection (2)?
MR DOWDING: Yes.
TOOHEY J: And the Court must be of the opinion that there are circumstances that justify departing from the principle that is to be found in subsection (1).
MR DOWDING: That is so, your Honour, but subsection (2A) is, in a sense, a list of those issues which the Court would apply in determining that issue. I would submit the strongest basis before your Honours is that the court which did have the role of supervising this matter made an order for costs and, secondly, that this is an application which sprung from the issue of whether their determination ought to be the subject of leave to appeal and that issue has failed and the wife, of course, has incurred very considerable costs.
My submission would be that your Honours would look to the matters set out in section 117(2A) to determine whether your Honours would depart. If an analysis of just simply the matter of this special leave application being unsuccessful and in circumstances where the respondent is not called upon, then my submission is your Honours would go to (2A) and look at those issues and if your Honours felt it appropriate I would run through those issues as it eventuates here. I think the important policy issue that may influence an examination of the question of costs is the effect of that on the parties. It is not from a policy perspective, it is not the wife who has sought in any way, shape or form to engage in further litigation. It is the correction of a serious error by the trial judge which motivated the Full Court to give the wife, notwithstanding section 117(2), three-quarters of the costs of the trial and the costs of the appeal which, in my submission, would justify the High Court simply applying its ordinary rules.
My concern though is to address some of those policy issues that are set out in the Act if your Honours felt that was necessary.
TOOHEY J: Mr Dowding, I think you should make all the submissions that you wish to make on the question of costs.
MR DOWDING: Thank you, your Honour. May I just say that the obvious - - -
TOOHEY J: That is not inviting you to speak at length. I think we want to avoid a situation in which the argument is, as it were, broken into two sections.
MR DOWDING: Yes, if it please your Honours. The first and most obvious issue applying the general principles in relation to costs is success. The second is that any litigation of this sort has a huge cost to it. The wife, in her financial circumstances, has two small children to support on a supporting parents’ benefit without the assistance of child support from the husband. It is true that she has leave to apply for maintenance for herself but, really, the outcome of this issue was an important matter to resolve.
Secondly, any costs - she is not legally aided - that she must incur will necessarily come out of that relatively small pool of assets that are left behind. That is to be contrasted with the husband’s financial position, which is not only a man who took out of Australia without explanation in 1987/88 over $500,000, he is a successful businessman. It has been found by the trial judge that he was so and that he was engaged in a current business in respect of which he had chosen not to take an equity because of these proceedings, and that that was in the context of having established an elaborate off‑shore structure hanging off Respite, involving the no‑name trust and other entities of which we have no knowledge as to their value.
So, if one is looking at the husband’s financial position, it is appropriate, in my submission, for the Full Court and for your Honours to draw the adverse inference on the material that not only does he have a pool of $500,000, because of his non‑disclosure and his setting up of this elaborate off‑shore, and his involvement with Garvey in the manufacture of Cortran and Sart, and his non‑disclosure of anything in relation to the value of that, that his assets are considerable and we can take it no more, but being not less than $500,000, and that he is a man with no other responsibilities, including no responsibility to pay child support because there is no demonstrated income in Australia upon which an assessment of child support can be made. 2A(b) is the availability of legal aid ‑ ‑ ‑
TOOHEY J: I would hope that you are not going to take us through each one devoting as much time. It is not an application for special leave to appeal in itself.
MR DOWDING: No, I was not, your Honour. I do apologise; it is a matter of some importance and I may overstate the issues.
GUMMOW J: But do you accept that section 118 of its own force does not apply here?
MR DOWDING: Yes, your Honour. Section 117 I think your Honour is referring to. Yes, I say that is undoubtedly so. Your Honour, she is not eligible, nor does she have legal aid, and 2A(c) is the conduct of parties in relation to the proceedings. This issue arose from a fundamental case of perjury on the part of the husband; you cannot put it any higher than that.
GUMMOW J: We are seized of that.
MR DOWDING: And I just rely on that issue as to why we are here and have gone through this tortuous exercise on what ought to have been a relatively simple division of family assets.
GUMMOW J: But it arose also - your client was disbelieved as well; neither party came out of the trial with of credit.
MR DOWDING: But your Honour, the issue about that, if I could just respond to that, his Honour took a dislike to her ‑ ‑ ‑
GUMMOW J: Well, he may or may not have. We cannot reinvestigate that, Mr Dowding, at this stage.
MR DOWDING: But your Honour, with great respect to the criticism of my client, it was not on a single material issue and it was in respect of issues in which she was ultimately proved right. She was disbelieved about the setting up of Respite and castigated by his Honour, but we proved it. I do not want to lengthen the argument, but with great respect, your Honour, the criticisms of the wife, in my submission, were totally unfounded by his Honour.
TOOHEY J: Thank you, Mr Dowding. Yes, Mr Grasso.
MR GRASSO: Your Honour, my learned friend says the wife is on social security benefits.
TOOHEY J: Well, perhaps we had better ask you to state the obvious. I assume that you are opposed to the application.
MR GRASSO: Yes I do oppose the application most strenuously. The wife has really had paid to her the sum of $425,000, and it is passing strange that she is still on social security benefits having received that sum of money. There is no evidence, and it is grossly misleading to suggest there is
a finding that her husband has $500,000 overseas. The Full Court was quite adamant in their findings. They said they thought the husband had more assets but they had no idea how much more. As a result of the Full Court’s decision the husband was made to pay all outgoings on this $800,000 property from July 1994 continuing it to a date of sale. So he is paying all the mortgage repayments on it, the wife has lived there during that time rent free. The value of Cortran, the trial judge said, and there is no evidence to controvert that issue, is either worth a lot or it is worth absolutely nothing, depending upon pending litigation. They being the circumstances, and it being conceded by my learned friend that the application is not vexatious, it is submitted that costs should be borne by both parties or fall where they lie and the matter allowed to rest at that.
TOOHEY J: Thank you, Mr Grasso. Anything by way of reply, Mr Dowding?
MR DOWDING: It is just in respect of the costs fall where they lie, there is almost a gross penalty on my client in relation to the matter, which I think would be unjust. I do not say further than that.
TOOHEY J: The application is refused with costs.
AT 11.27 AM THE MATTER WAS CONCLUDED
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