Public Trustee v the Attorney-General and Anor No. Scgrg-99-76 Judgment No. S420
[1999] SASC 420
•5 October 1999
PUBLIC TRUSTEE V THE ATTORNEY-GENERAL AND ANOR
[1999] SASC 420
1 JUDGE BURLEY. The plaintiff has applied by summons for a determination of questions relating to the interpretation of certain provisions of the Legal Practitioners Act. The summons recites:-
"WHEREAS the plaintiff sought by a claim dated the 4th day of June 1996 made to the second defendant, payment from the Legal Practitioners Guarantee Fund arising from alleged fiduciary or professional default by Michael Stephen Kemp, whilst he was a legal practitioner having the conduct of the administration of the estate of Vincent Stanley Bates deceased, inter alia, amounts equal to interest on money which would have been received by the estate of V S Bates from certain bank deposits had not the said Michael Stephen Kemp withdrawn the funds so deposited (the interest claim)
AND WHEREAS the second defendant has not paid the interest claim from the said fund and the first defendant maintains that his approval is required pursuant to s.57(5) of the Legal Practitioners Act 1981 before the second defendant may make payment from the said fund in respect of the plaintiff's interests claim and costs claim and the first defendant has declined to authorize payment in respect of the interest claim:-
(1) Is the interest claim a valid claim having regard to the provisions of s.60(2)(a) of the said Act?
(2) Is the approval of the first defendant required for the second defendant lawfully to make a payment to the plaintiff in relation to the interest claim?"
2 The summons has been brought pursuant to the provisions of SCR 63.02, which is as follows:-
"63.02 Where any person claims to be entitled to any right, and the question whether he is so entitled depends upon the proper interpretation or validity of a Statute, a statutory instrument or by-law or a Rule made or purporting to have been made under a Statute or statutory instrument, he may apply by summons for the determination of the question, and for a declaration as to the right claimed and consequential relief."
3 At the commencement of the hearing, Mr Quick QC, counsel for the plaintiff, handed up a statement of agreed facts, which is as follows:-
"1. At all material times, prior to August 1995 Michael Stephen Kemp (Kemp) was a 'Legal Practitioner' as defined in section 5(1) of the Legal Practitioners Act 1981 (the LPA).
Between February 1987 and October 1993, Kemp, in the course of his practice as a Legal Practitioner, acted for Rachel Cecilia Thomas, administrator pendente lite of the estate of Vincent Stanley Bates (deceased). In that period and in that capacity Kemp received and managed money which was the property of the estate of the deceased person. In the course of practice acting for the said Rachel Cecilia Thomas, Kemp received money and:-
(a) paid some of it directly into his solicitors trust account for and on behalf of her as administrator of the said estate of the deceased;
(b) paid some of it directly into a National Australia Bank account no. 785 03833 972 5967 in the name of 'Estate of Vincent Stanley Bates (deceased)';
(c) paid some of it directly into National Australia Bank fixed deposit accounts in the name 'Estate of Vincent Stanley Bates Deceased';
(d) transferred money from the said solicitors trust account into the said bank account (2(b) above) and fixed deposit accounts (2(c) above);
(e) transferred money from account (b) above to account (c) above;
(f) transferred money from account (c) above to account (b) above.
The said bank accounts identified in paragraphs 2(b) and (c) were interest bearing accounts. Kemp had no instructions permitting him to withdraw the said deposits or not to rollover the capital and interest on the said interest bearing deposits.
Between May 1988 and October 1993 Kemp wrongfully and without lawful authority withdrew sums totalling $372,059.01 from the said accounts identified in paragraphs 2(a), (b) and (c) and converted it to his own use.
On or about the 5th day of July 1995, Letters of Administration of the estate pendente lite of the said Vincent Stanley Bates deceased were granted by this Honourable Court to Public Trustee.
On 4th June 1996 Public Trustee made a claim against the Legal Practitioners' Guarantee Fund claiming both the said capital sum of $372,059.01 and interest which would have accrued thereon calculated at $95,380.18.
The second Defendant (the Law Society) has admitted the claim and paid the same so far as it concerns the capital sum of $372,059.01 with the authorisation of the Attorney-General but has made no determination with respect to the validity of the claim for the sum of $95,380.18 or any sum in respect of interest which would have accrued to the estate by reason of the said withdrawals of the said capital sum from the accounts identified in paragraphs 2(a), (b) and (c) above.
In these proceedings the Plaintiff claims that:-
(a) The claim for loss arising from the unlawful withdrawals from the said accounts in the nature of interest, is a valid claim against the said Legal Practitioners' Guarantee Fund, for the purposes of section 63 of the LPA.
(b) The authorisation of the First Defendant, is not required by the LPA, before the Law Society can satisfy the Plaintiff's said claim for interest, by payment out of the said Fund.
The First Defendant maintains, in response to the said claims, that:-
(a) The provisions of the LPA and section 57(5) in particular, preclude the Law Society from making a payment in satisfaction of a claim against the said Guarantee Fund in respect of loss as a result of a fiduciary or professional default, without the Society first having obtained the consent of the Attorney-General; and
(b) the claim for compensation pursuant to section 60(1) of the LPA in respect of loss of interest arising from the withdrawal of the said capital sum from is not a valid claim against the Fund."
4 Mr Quick also tendered the plaintiff's affidavit affirmed on 15 January 1999 to which was exhibited a copy of the affidavit of Michael Stephen Kemp sworn on 26 February 1996 in Action No 633 of 1987 in this Court. In addition, the affidavit of Raymond Gordon Frost sworn on 19 May 1999 was tendered by Mr Quick. Towards the end of the hearing, Ms Powell QC, counsel for the Law Society, tendered, with the consent of the other parties, copy charge sheets relating to the prosecution of Mr Kemp.
5 It is apparent from paragraph 2 of the statement of agreed facts that Mr Kemp received monies belonging to the estate of Vincent Stanley Bates (the estate) and paid some of those monies into his trust account, some into a bank account in the name of the estate and some of the money into fixed deposit accounts in the name of the estate. He also transferred money between the bank account and the fixed deposit accounts. He wrongfully withdrew sums totalling $372,059.01 and converted those monies to his own use. Public Trustee, on behalf of the estate, made a claim against the Legal Practitioners Guarantee Fund which was maintained pursuant to the provisions of the Legal Practitioners Act 1981 (the Act). The claim made was for the capital sum of $372,059.01 together with interest amounting to $95,380.18. The Law Society, with the consent of the Attorney-General, has admitted and paid out the claim for the capital sum. The Society is unsure whether interest may be properly claimed by the plaintiff and whether, even if interest is properly claimable, the authorisation of the Attorney-General ought to be obtained before payment of that aspect of the plaintiff's claim.
6 The plaintiff is not seeking a determination of the amount of interest payable because, if interest is payable, agreement has not yet been reached as to the amount so payable.
7 Part 5 of the Act deals with claims against the Guarantee Fund. Section 60 of the Act provides:-
"60.(1) Subject to this Part, where-
(a) a person suffers loss as a result of a fiduciary or professional default; and
(b) there is no reasonable prospect of recovering the full amount of that loss (otherwise than under this Part),
the person may, by instrument in writing served on the Society, claim compensation under this Part.
(2) The amount of a claim cannot exceed-
(a) the actual pecuniary loss suffered by the claimant in consequence of the fiduciary or professional default (including the reasonable costs of making the claim); less
(b) any amount that the claimant has received, or may reasonably be expected to recover (otherwise than under this Part) in reduction of that loss."
8 Mr Quick argued that the expression "the actual pecuniary loss" included, in the circumstances of this case, interest on the amount wrongfully appropriated by Mr Kemp.
9 In Section 5 of the Act the following definition appears:-
" 'fiduciary or professional default' in relation to a legal practitioner means-
(a) any defalcation, misappropriation or misapplication of trust money received in the course of legal practice by the legal practitioner or a firm of which the legal practitioner is a member; or
(b) any wrongful or negligent act or omission occurring in the course of the practice of the legal practitioner, or a firm of which the legal practitioner is a member,
whether committed by the legal practitioner, an employee of the legal practitioner or any other person;"
10 It is not in dispute that the estate suffered loss as a result of a fiduciary or professional default on the part of Mr Kemp.
11 Paragraph (a) of the definition refers to wrongful conversion of trust monies by a legal practitioner. Paragraph (b) refers to any other wrongful or negligent act or omission on the part of a practitioner. It may include dealings with trust monies but is not limited to such dealings. Consequently, as was argued by Mr Quick, the second part of the definition includes acts or omissions which may give rise to a claim in damages as opposed to a claim for a liquidated amount.
12 As I understand Mr Quick's argument, the distinction is significant because the wrongdoing of the practitioner could be divided into two categories: the first of which came within paragraph (a) of the definition and the second of which came within paragraph (b) of the definition.
13 Whilst I accept that the nature of the wrongful conduct on the part of the practitioner has a bearing upon the extent of the claim which the estate may pursue against the Guarantee Fund, the statement of agreed facts and the affidavit material tendered at the hearing of the summons, for the reasons set out below, only permit an examination of the question of whether or not the plaintiff has a valid claim for interest that would have been earned on the misappropriated funds had they not been misappropriated.
14 Exhibit C to the affidavit of the plaintiff is a copy of a report from Brett and Watson Pty Ltd, consulting actuaries. That reports sets out the quantification of the plaintiff's claim for interest by reference to interest that would have been earned on amounts withdrawn by the practitioner calculated from the date of the withdrawal to 30 April 1996 when, I infer, the plaintiff made the claim on the Guarantee Fund. I mention that the plaintiff does not claim interest beyond 30 April 1996 because she accepts that the effect of Section 60(3) of the Act does not require interest to be paid for a period of twelve months after the day on which the claim against the fund is lodged with the Law Society and that thereafter interest is payable in accordance with that sub-section.
15 Exhibits MSK4, 5, 6, 7 and 9 to the practitioner's affidavit set out the amounts misappropriated by the practitioner. The payments referred to in those schedules have been set out in chronological order in Appendix 2 to the report of Brett and Watson Pty Ltd. The dates of the payments referred to in Exhibits MSK4, 5, 6, 7 and 9 constitute the dates upon which those funds were respectively converted by the practitioner to his own use. The total of those sums, when combined with the payments referred to in paragraph 6 of the practitioner's affidavit is slightly in excess of the total amount of the plaintiff's claim against the fund for a return of capital. In those circumstances, the factual basis upon which the summons has been pursued by the plaintiff is in respect of a claim for interest which would have been earned on the converted monies after the date of their conversion by the practitioner.
16 After oral argument was completed, further written submissions were, by leave, forwarded by the plaintiff and the Attorney-General. The Law Society also forwarded written submissions to the effect that the plaintiff had changed the basis of her claim for interest. As a result, the plaintiff requested that the matter be re-listed for further submissions. I agreed to this because I thought there was substance to the Law Society's written submissions and, in addition, the written submissions of the Attorney-General seemed to raise the same point.
17 I heard further submissions from all parties on 30 September 1999 and then reserved my decision.
18 It was put by the defendants that the claim for interest as evidenced by the actuary's report was a claim based on fraudulent conversion. Mr Quick submitted to the contrary. He said that the claim for interest was based on the wrongful omission on the part of the practitioner to invest the trust monies. He argued that the omission to invest arose from a withdrawal of the monies by the practitioner from his trust account and from the investment accounts. With the former, there was a duty to invest, with the latter there was a duty to maintain the investment. This was common ground.
19 The factual basis for these submissions is to be found in the agreed statement of facts and the evidential material admitted at the hearing. Essentially, the factual basis is that on given dates the practitioner withdrew given amounts either from his trust account or from the investment accounts. On each of those occasions there was a fraudulent misappropriation of the estate's funds by the practitioner. Such a default, in my view, clearly comes within paragraph (a) of the definition of "fiduciary or professional default". The capital sum which was misappropriated has been recovered by the plaintiff from the Guarantee Fund.
20 As to interest, Mr Quick submitted that the failure to invest was brought about by the misappropriation of the capital sum. Whilst the practitioner had the money, it was not invested on behalf of the estate. That misappropriation, in my view, took place on the day of the withdrawal. The claim for interest from the date of withdrawal is consistent with that characterisation of the relevant events.
21 It was submitted by the plaintiff that the practitioner's conduct had two aspects: the positive act of misappropriation and the omission to invest. The former came within paragraph (a) of the relevant definition, whereas the latter came within paragraph (b) because the failure to invest was a wrongful omission. Mr Quick drew this distinction because, he submitted, the "actual pecuniary loss" arising from the fraudulent misappropriation was the capital sum whereas the "actual pecuniary loss" from the failure to invest was the interest that would have been earned. To that extent, it was argued that the decision in Schofield v Consolidated Interest Fund (1988) 49 SASR 546 should be distinguished in case it would otherwise be against the plaintiff's case. I shall return to that decision later in these reasons.
22 The argument advanced by the plaintiff depends upon whether the conduct of the practitioner has the duality attributed to it by Mr Quick. I think it does because of the two obligations the practitioner had: first, he could not convert the money to his own use; and, second, he was required to invest it. But the argument then runs into the barrier set by Section 60(4)(b) of the Act. That provision is as follows:-
"60.(4) No claim can be made under this Part -
...
(b) in respect of a liability to which indemnity is provided under a scheme of professional indemnity insurance under Division 13 of Part 3."
23 Mr Quick argued that the failure to invest arose from the practitioner's fraud. It was common ground that the Professional Indemnity Insurance Scheme did not cover fraudulent acts on the part of a practitioner. It followed, he argued, that the claim for interest was for monies which could not be the subject of an indemnity under the Professional Indemnity Insurance Scheme.
24 I cannot accept that submission. The failure to invest was not, of itself, fraudulent. It occurred because of a fraudulent act, but that does not make the failure to invest fraudulent. The fraud consisted of a positive act of misappropriation not the omission to invest.
25 For these reasons, I do not think that the plaintiff may recover interest from the Guarantee Fund either by -
(i) Characterising the default as being both a fraudulent misappropriation of capital and a failure to invest, or by
(ii) Asserting that there were two defaults, the first being fraudulent misappropriation coming within paragraph (a) of the definition of "fiduciary or professional default", and the second being a failure to invest coming within paragraph (b) of that definition.
For both (i) and (ii) the failure to invest is not fraudulent and thus Section 60(4)(b) of the Act applies.
26 I turn to a consideration of the additional argument advanced by Mr Quick which was that the "actual pecuniary loss", sustained by the estate is a result of the practitioner's default, was the equitable debt that arose from such default. Mr Quick submitted that it is necessary to examine what a beneficiary to a trust could, in equity, claim in respect of the trustee's default where the default consists of a conversion of monies. In that regard, he referred me to Jacobs' Law of Trust, 6th Edition, at 665-667. The learned authors state that a beneficiary can always obtain an account against a trustee where there has been default. A trustee is chargeable with interest in addition to the principal sum. Where the trustee has misapplied the trust funds, the practice has been to grant interest at the current mercantile rate and in certain circumstances compound interest may be recovered.
27 I was referred to Wickstead v Browne (1992) 30 NSWLR 1, a decision of the Court of Appeal. Handley JA and Cripps JA in their joint judgment said (at 14):-
"The remedy for breach of trust is not an action for debt. Uninstructed by authority one might think that the remedy was a suit for equitable compensation akin to an action for damages: see Davidson, 'The Equitable Remedy of Compensation' (1982) 13 MULR 349 and The Honourable Mr Justice Gummow, 'Compensation for Breach of Fiduciary Duty' in Equity, Fiduciaries and Trusts, Ed Youdan (1989) at 57f. The beneficiary's remedy has sometimes been described in this way when precision of language has not been important ...
However the authorities establish that the amount which a defaulting trustee is bound to pay to make good a breach of trust is an equitable debt. In Ex Parte Adamson; Re Collie (1878) 8 Ch D 807 at 819, James LJ and Baggallay JJ [sic] said:
'... The Court of Chancery never entertained a suit for damages ... for breach of trust. The suit was always for an equitable debt or liability in the nature of debt. It was a suit for the restitution of the actual money or thing, or value of the thing, ...'
Similarly, in Webb v Stenton (1883) 11 QBD 518 at 530, Fry LJ said:
'... A trustee is not ... an equitable debtor to the cestui que trust until there is money in his hands which he ought to pay to his cestui que trust, or until he has made himself personally liable to pay money to his cestui que trust by reason of some breach of trust or default in the performance of his duties as trustee.' "
28 It was submitted that the equitable debt payable by the practitioner in respect of his default constituted the capital sum together with interest.
29 Mr Quick next turned to the meaning of the words "actual pecuniary loss" in Section 60(2) of the Act. Three cases in particular were referred to. They are Dobcol Pty Ltd v Law Institute of Victoria [1979] VR 393, Schofield v Consolidated Interest Fund (1988) 49 SASR 546 and Re Queensland Law Society Incorporated [1995] 1 QdR 381. The words "actual pecuniary loss" were the subject of a consideration in each of those cases.
30 In Schofield Olsson J dealt with the provision of the Land and Business Agents Act 1973 which set up a consolidated interest fund against which claims could be made by persons who suffered loss as a result of fiduciary default on the part of various persons including landbrokers. The applicants paid a sum of money into the trust account of a landbroker with specific instructions for its investment. The broker failed to carry out these instructions and misapplied the monies so deposited for his own purposes. The applicants claimed the recovery of the monies deposited in the trust account together with interest that would have been earned had the monies been invested in accordance with their instructions.
31 "Fiduciary default" is defined in the Land and Business Agents Act as meaning "any defalcation, misappropriation or misapplication of trust monies in the charge of an agent or firm of agents, whether permitted by the agent or firm of agents, his or her employee, or any other person". Section 72(1) of that Act provided that the "amount of a claim made pursuant to this part shall not exceed the actual pecuniary loss suffered by the claimant in consequence of the fiduciary default ...".
32 Having set out the relevant legislation and referred to counsels' submissions, Olsson J said (at 552):
"It seems to me that, at first sight, when the draftsman employed the expression 'actual pecuniary loss' he did so advisedly, with the positive intention of identifying only that direct monetary loss which is the subject of the actual defalcation.
I am reinforced in this tentative reaction by the product of my own independent researches. These have thrown up two authorities which, in my opinion, are in fact of direct relevance to the present problems.
The first is the decision of Anderson J in Dobcol Pty Ltd v Law Institute of Victoria [1979] VR 393. That case focused upon provisions of the Legal Profession Practice Act 1958 (Vic), the relevant provisions of which are somewhat similar to those presently under consideration. Section 64(5) of that enactment limited allowable claims against the Solicitors' Guarantee Fund to 'the amount of the actual pecuniary loss suffered' from any defalcation committed by a solicitor."
33 Having cited a lengthy passage from the judgment of Anderson J in Dobcol, Olsson J said (at 555):
"... I am inexorably drawn to the conclusion that the draftsman was deliberately excluding considerations such as the economic loss occasioned by the failure of the broker to put the trust funds to our [sic] intended use, whatever that proposed use may have been. What he clearly had in mind and was at pains to emphasise was that the fund was to be applied - subject only to the limitations of available moneys in it - in the reimbursement of the actual subject matter of the fiduciary default."
34 Dobcol was applied in Re Queensland Law Society. It was held that the expression did not encompass costs and expenses incurred by a solicitor's former partner and clients in defending proceedings brought by the plaintiffs to recover monies which had been fraudulently misappropriated by that solicitor.
35 Mr Quick contended that each of the three cases could be distinguished on a number of grounds. He said that each of them involved a case where there had been a defalcation in respect of trust funds as opposed to a negligent failure to invest trust funds. He was thereby drawing attention to the fact that in Schofield, for example, fiduciary default did not include those acts or omissions which are included in paragraph (b) in the definition of fiduciary or professional default in Section 5 of the Act. Given the approach taken by me earlier in these reasons to the practitioner's failure to invest, the point of distinction cannot be maintained.
36 Mr Quick next submitted that Dobcol and Re Queensland Law Society could be distinguished because the relevant statutory provisions in those cases provided for a separate entitlement to interest and in neither of those cases was the loss claimed in the nature of interest. I do not think these are valid points of distinction. Those cases deal with the expression "actual pecuniary loss" and are helpful in determining what that phrase means in the context of a legislation under consideration on this summons. In addition, the South Australian legislation does provide for interest as referred to earlier in these reasons. The only difference is that interest does not run for the twelve month period referred to.
37 I should also mention that Mr Quick submitted that because there is a reference in the South Australian legislation to the payment of interest at the end of the twelve month period, it is arguable that the legislature intended that interest could be claimed up to the date of the lodgement of the claim against the fund with the Law Society. I think it is equally arguable that the intention of the legislature was that interest would only be payable from the expiration of the relevant twelve month period.
38 The third point of distinction applied to Schofield. In that case there was a failure to make an investment rather than the termination of an existing investment. The former, it was argued, may lead to a loss of a mere anticipated benefit whereas "the actual subject matter of the fiduciary default" (Schofield at 555) includes the latter.
39 This argument seems to raise the question of whether or not the equitable debt created by the conversion of monies, which in equity includes interest, represents "the actual pecuniary loss" referred to in Section 60(2) of the Act. The contention of the plaintiff that it does seems to be at the heart of the plaintiff's additional argument in respect of the first question to be answered.
40 In my view, the mere fact that an equitable debt arises between the beneficiary and the trustee where there has been default by the trustee, does not mean that "actual pecuniary loss" includes interest where the pecuniary loss in equity permits recovery of the principal amount and interest. The equitable debt which arises has two components: the principal and interest. In other contexts, where damages are awarded as a result of, say, the negligence of a practitioner, damages are commonly divided into at least two broad categories: direct losses and consequential losses. The authorities cited above make it clear, correctly in my respectful view, that the use of the word "actual" has a limiting effect on the compensation that may be paid out of the Guarantee Fund to a claimant in respect of a valid claim. The wrongful conduct of a practitioner which enables a claim to be made on the fund embraces both conduct which constitutes a breach of trust and wrongful conduct which does not constitute a breach of trust. In relation to conduct which does not constitute a breach of trust, it is necessary to ascertain what the actual loss of the claimant is as opposed to all of the losses that might be recoverable in an action at law. There is no reason why the same approach should not be taken when the claimant alleges wrongful conduct which constitutes a breach of trust. There is, in my view, no material difference between the legislation and wrongful conduct considered by Olsson J in Schofield and the legislation and wrongful conduct which is under consideration on this summons.
41 For the above reasons, I have come to the conclusion that where the wrongful conduct giving rise to the claim against the fund constitutes a breach of trust, the claimant is not entitled to a payment of interest out of the fund as might otherwise be the case if a suit in equity were brought against the practitioner by the claimant.
42 My answer to the first question is: no.
43 The second question is whether the approval of the Attorney-General is required before the Law Society may lawfully make a payment of interest. It is not strictly necessary to answer this question in view of the fact that I have answered the first question in the negative. However, in case I am wrong in the views that I have expressed in relation to the first question, I propose to deal with the second question. It requires an examination of Division 3 of Part 4 of the Act and some of the provisions of Part 5 of the Act. Section 57(4) of the Act provides that money in the Guarantee Fund may be applied for a number of purposes, all of which would require payments of money from the Fund by the Society to persons or bodies other than the claimant. Sub-paragraph (g) of that sub-section is as follows:
"The costs of processing claims under Part 5 and of paying out those claims to the extent authorised by that Part;"
44 Section 57(5) provides that no payment may be made from the Guarantee Fund except with the authorisation of the Attorney-General. It was submitted by the plaintiff that sub-section (5) only applied to the payments contemplated by Section 57(4). Mr Walter, counsel for the Attorney-General, submitted that Section 57(5) applied to all payments made out of the Guarantee Fund. He relied upon the provisions of Section 57(4)(g) of the Act. He said that the phrase "and of paying out those claims" referred to the payments made by the Society under the provisions of Part 5 of the Act.
45 Mr Quick referred to Section 64(6) of the Act which provides that the Society "may, with the approval of the Attorney-General", make further specified payments. He argued that if Section 57(4)(g) referred to payments made under Section 64 of the Act, there was no reason to include within sub-section (6) of Section 64 the passage "with the approval of the Attorney-General". He also referred to Section 64(1) which provided that the "Society must satisfy any valid claim under this part". The terms of that sub-section are mandatory and in addition there is an absence of making that provision subject to the provisions of Division 3 of Part 4 of the Act. He also referred to Section 63(4) which provides that a claimant who is aggrieved by a determination of the Society may appeal to the Supreme Court. He argued that it would be unusual for the Attorney-General's consent to be required even where the validity of the claimant's claim had been determined by the Supreme Court.
46 I accept Mr Quick's submission that the Attorney-General's approval or authorisation is not required in respect of payments out of the fund made by the Society pursuant to Part 5 of the Act. I think that "the costs of ... paying out" claims under Part 5 of the Act mean the expenses incurred in so doing as opposed to the payment of the amount determined by the Law Society to be a valid claim. Such a conclusion goes beyond deciding whether or not payment of interest must be authorised by the Attorney-General, but that is a necessary consequence of my analysis of the relevant provisions.
47 For the above reasons, my answer to the second question is: no.
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