SAWA Pty Ltd v Swift
[2016] WASC 331
•14 OCTOBER 2016
SAWA PTY LTD -v- SWIFT [2016] WASC 331
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 331 | |
| Case No: | SJA:1044/2016 | 5 OCTOBER 2016 | |
| Coram: | MARTINO J | 14/10/16 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeals allowed | ||
| B | |||
| PDF Version |
| Parties: | SAWA PTY LTD NICOLAAS FRANCOIS BOTHA AMANDA ANN SWIFT |
Catchwords: | Criminal law Adequacy of reasons for decision Costs Suitors Fund |
Legislation: | Animal Welfare Act 2002 (WA) Magistrates Court Act 2004 (WA) Official Prosecutions (Accused's Costs) Act 1973 (WA) Suitors Fund Act 1964 (WA) |
Case References: | Barr v Farrell [2013] WASCA 211 Corruption and Crime Commission of Western Australia v Allen [2012] WASCA 242(S) Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 Jones v Dalcon Construction Pty Ltd [2006] WASCA 205(S) Nelson v Moorcraft [2014] WASCA 212(S) Richards v Faulls Pty Ltd [1971] WAR 129 Strahan v Brennan [2014] WASC 190 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- SJA 1062 of 2016
- First Appellant
NICOLAAS FRANCOIS BOTHA
Second Appellant
AND
AMANDA ANN SWIFT
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE K M TAVENER
File No : KR 2136 of 2014, KR 2137 of 2014, KR 2138 of 2014, KR 2139 of 2014, KR 2140 of 2014, KR 2141 of 2014, KR 2142 of 2014, KR 2143 of 2014, KR 2193 of 2014, KR 2194 of 2014, KR 2195 of 2014, KR 2196 of 2014, KR 2197 of 2014, KR 2198 of 2014, KR 2199 of 2014, KR 2200 of 2014
Catchwords:
Criminal law - Adequacy of reasons for decision - Costs - Suitors Fund
Legislation:
Animal Welfare Act 2002 (WA)
Magistrates Court Act 2004 (WA)
Official Prosecutions (Accused's Costs) Act 1973 (WA)
Suitors Fund Act 1964 (WA)
Result:
Appeals allowed
Category: B
Representation:
Counsel:
First Appellant : Mr S Vandongen SC
Second Appellant : Mr S Vandongen SC
Respondent : Mr P D Yovich SC
Solicitors:
First Appellant : Salerno Law
Second Appellant : Salerno Law
Respondent : Minter Ellison Lawyers
Case(s) referred to in judgment(s):
Barr v Farrell [2013] WASCA 211
Corruption and Crime Commission of Western Australia v Allen [2012] WASCA 242(S)
Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61
Jones v Dalcon Construction Pty Ltd [2006] WASCA 205(S)
Nelson v Moorcraft [2014] WASCA 212(S)
Richards v Faulls Pty Ltd [1971] WAR 129
Strahan v Brennan [2014] WASC 190
1 MARTINO J: At the relevant times the first appellant held a pastoral lease on a property in the Kimberley known as Moola Bulla station and ran cattle on that station, the second appellant was the managing director of the first appellant and the respondent was an inspector under the Animal Welfare Act 2002 (WA) who was employed by the Royal Society for the Prevention of Cruelty to Animals, Western Australia (Incorporated).
2 By prosecution notices dated 22 July 2014 the respondent charged each of the appellants with eight offences of being cruel to an animal contrary to s 19(1) of the Animal Welfare Act 2002 (WA)in that, contrary to s 19(3)(j) of the Act, the appellant caused the animal unnecessary harm. Each charge against the second appellant was in similar terms to the corresponding charge against the first appellant. In each case the second appellant was charged as a director of the first appellant. The charges related to conduct when horns were removed from cattle at Moola Bulla station in July 2012.
3 A trial took place over seven days. The first five days of the trial were held at Kununurra from 19 to 23 October 2015. The remaining two days of the trial were held in Perth on 14 and 15 December 2015. By the end of the trial only five charges against each appellant remained for determination, three charges against each appellant having been discontinued. Four of the charges which required determination were charges of being cruel in the manner in which the horns were removed. The cruelty alleged was particularised in each of those charges as being that the animal was dehorned in an unnecessary and inhumane manner. The remaining charge was a charge of being cruel to an animal by striking the animal repeatedly with metal nose tongs.
4 On 30 March 2016 the learned Magistrate delivered written reasons for his decision. He convicted each of the appellants of one charge and dismissed four charges against each appellant. The charge on which each appellant was convicted was a charge of being cruel to an animal in that it was dehorned in an unnecessary and inhumane manner. It was the second charge that each appellant faced and was referred to in his Honour's reasons as 'Count Two', a charge which related to an animal particularised in the charges as amended as 'Bovine 1'.
5 On 25 July 2016 the Magistrate ordered that the appellants be awarded costs of $27,000 and delivered oral reasons for his decision.
6 The appellants appeal against their convictions and the costs orders. The appeal against the cost order was lodged three days outside of the time limited to appeal. The delay is small and adequately explained. It is appropriate to grant the appellants an extension of time to appeal and I do so.
Relevant provisions of the Animal Welfare Act, the Animal Welfare (General) Regulations and the Model Code of Practice
7 Section 19(1) of the Animal Welfare Act provides that a person must not be cruel to an animal. Section 19(3)(j) of the Animal Welfare Act provides that without limiting subsection (1) a person in charge of an animal is cruel to an animal if the animal is, in any way other than specified in s 19(3)(a) to s 19(3)(i), caused unnecessary harm. The word 'harm' is defined in s 5(1) as including injury, pain and distress evidenced by severe, abnormal physiological or behavioural reactions.
8 Section 80(1) of the Act provides that if a body corporate commits an offence under the Act every person who was an officer of the body at the time the offence was committed also commits the offence. Section 80(2) provides that it is a defence to a charge arising by operation of s 80(1) for an officer to prove that the offence was committed without the officer's consent or connivance and that the officer exercised all such due diligence to prevent the commission of the offence as the officer ought to have exercised having regard to the officer's functions and to all the circumstances.
9 Section 23 of the Animal Welfare Act provides that it is a defence to a charge under s 19(1) for a person to prove that the act alleged to constitute the offence was done in accordance with a generally accepted animal husbandry practice, other than a prescribed practice, that is used, inter alia, in farming or grazing activities and in a humane manner.
10 Section 25 of the Animal Welfare Act provides that it is a defence to a charge under s 19(1) for a person to prove that the person was acting in accordance with a relevant code of practice. A code of practice is defined in s 5 of the Act as meaning a code of practice adopted under s 94(2)(d) of the Act. The relevant code of practice in this case was the Model Code of Practice for the Welfare of Animals Cattle (2nd Ed), which had been adopted under s 94(2)(d) by the Animal Welfare (General) Regulations 2003 (WA).
11 Paragraph 5.8 of the Model Code of Practice provides that to minimise pain and injury all horned cattle should be dehorned as young as possible, preferably prior to weaning. The dehorning of domesticated cattle without local analgesics should be confined to the first muster and preferably when the cattle are under six months old. Older animals may be tipped, by which the ends of horns are removed without cutting into sensitive horn tissue, without anaesthetic. Paragraph 8.3 of the Code provides that where the domestication of feral animals is to be attempted the dehorning of adult cattle outside the normal guidelines is undertaken to minimise stress and injury to the domesticated group into which they are introduced. Only under exceptional circumstances, for example the range management of older, previously unmustered cattle in extensive operations, should the dehorning of cattle be undertaken without analgesics on animals older than six months.
12 Section 84 provides that where a person is charged with an offence under pt 3 the fact that the person has failed to act in accordance with a relevant code of practice must be taken into consideration by the court, but is not sufficient, on its own, to prove that the person committed the offence. Section 19 appears in pt 3 of the Act.
13 Section 58(1) provides that a court hearing proceedings for an offence under the Act or dealing with any other application under the Act may make such order as to costs as it thinks fit.
The issues at trial
14 The activity the subject of the charges had been filmed by Hendrick Fowler, an employee of the first appellant. Mr Fowler was called as a witness and the film was tendered in evidence at the trial. The film showed the activity the subject of the charges.
15 The prosecution called two veterinary surgeons as witnesses, Dr Enoch Bergman and Dr Katherine Lindsay. Dr Lindsay practices as a veterinary behaviourist.
16 The second appellant gave evidence in the appellants' defence at trial and the appellants called evidence from two veterinary surgeons, Dr David Morrell and Dr Peter Trembath, and an animal behaviourist, Dr Carol Petherick. The second appellant was not present when the activities filmed by Mr Fowler took place. He gave evidence as to the nature of the station, the type of cattle on the station and the first appellant's practices. He also gave evidence as to how those matters bore on the activities filmed by Mr Fowler.
17 At the trial the first appellant accepted that it was a person in charge of the animal referred to in each charge. The second appellant accepted that he was an officer of the first appellant. The second appellant raised a defence under s 80(2) of the Act to the charge against him of being cruel to an animal by striking it with metal nose tongs, but not in respect of the charges of being cruel by dehorning. The live issues for determination by the learned Magistrate on each of the charges the subject of the appeal against conviction were:
1. Whether the prosecution had proved beyond reasonable doubt that the animal had suffered unnecessary harm.
18 If so, whether the appellants had proved on the balance of probabilities:
1. that the dehorning of the animal was done in a humane manner in accordance with generally accepted animal husbandry practice; or
2. that the first appellant was acting in accordance with the Model Code of Practice.
The learned Magistrates' reasons for his decision on the prosecutions
19 At the commencement of his reasons the learned Magistrate recorded that the first appellant holds the pastoral lease at Moola Bulla, that the second appellant is a director of the first appellant and that on 18 and 19 July 2012 Mr Fowler filmed the dehorning of cattle at Moola Bulla.
20 The learned Magistrate then explained the distinction between dehorning cattle, which involves cutting through both living and dead tissue, and tipping horns, which endeavours to cut through dead tissue only, although there is a potential to cut through live tissue. His Honour explained that dehorning can cause pain, infection, bleeding, flystrike and even death because it involves the cutting of live tissue.
21 His Honour then summarised the charges he was to determine, the defences available under s 23 and s 25 of the Act and relevant provisions of the Model Code of Practice.
22 In [12] of his reasons his Honour said:
The prime evidence in the hearing came from the recording augmented by opinions provided by experts in the veterinary field. The experts had differing opinions, but not such that their opinions could not be reconciled; the differences arose from competing perspectives as to how cattle are to be practically managed in a challenging environment. Mr Fowler and Mr Botha also testified and their evidence was not seen to be either not credible or unreliable.
23 In [13] to [63] of his reasons his Honour summarised the evidence of each witness, without analysing any of the evidence or making any findings. In [64] to [97] his Honour summarised the submissions of the parties, again without any analysis or drawing any conclusions.
24 His Honour's reasons concluded with his findings, in [98] to [108], which were as follows:
Findings
98. The main charges under live consideration relate to the practice of dehorning of cattle, over the age of 12 months. The feral cattle, as shown on the footage, are clearly distressed by the process however the handling of animals, in all such circumstances, will cause such an effect.
99. The question is whether the animals were caused unnecessary harm. The experts had differing opinions as to the level of pain and best practice. It is accepted that dehorning can be done in accordance with the Animal Welfare Act following the relevant Code of practice.
100. Here, under the defined exceptional circumstances, dehorning is permitted when dealing with feral cattle. The Animal Welfare Act allows, so far as it is impacted by the Code, for a person in charge to dehorn cattle. The justification is found, amongst other reasons, in not requiring the cattle to be subject to the same stressful procedure twice.
101. Dr Bergman said the footage was consistent with the generally-accepted animal husbandry practice used in grazing activities in the north of Western Australia.
102. However, on one charge (Count Two), an animal is dehorned when it is being passed through for shipping. According to Mr Botha, a decision was made to tip the horn and ship the animal, or dehorn it and put it back in the paddock. Mr Botha, or the head stockman, made that decision in consultation with buyer's agents. The subject animal, however, was being shipped yet it was, at best, aggressively cut, causing unnecessary harm. It should have been tipped to minimise harm; the decision to do otherwise indicated an indifference to the animal's welfare.
103. The Animal Welfare Act acknowledges exceptional circumstances by which an older animal can be dehorned. Those conditions must be present for the exception to be activated.
104. It is accepted with the other animals the exception applied, as permitted under the code, allowing the animals to be dehorned.
105. The behaviour of the young stockman demonstrated a callous attitude towards the animals which reflected a poor culture. Mr Botha and SAWA are responsible for the station's working culture and concomitantly the behaviour. Striking animals with poles and pushing horns into cattle's mouths is unnecessary. There was training and industry certificates but they are of limited value if recipient's behaviour is such a manner.
106. The prosecuting agency should have acted with more haste; its failure to do so cannot be shifted onto the defendants. Mr Botha was not provided with a contemporaneous opportunity to deal with the recorded behaviour.
107. As to count three Mr Botha said there was no justification for such an act. However, the animal was suffering a high degree of stress from the handling process such that it cannot be said it registered additional pain as a result of being struck by the nose prongs.
108. I find each of the defendants guilty of an offence under section 19(3)(j) of the Act, as it relates to the animal described as Bovine 1.
The grounds of appeal against conviction
25 The grounds of appeal against conviction, as amended at the hearing of the appeal are:
1. The learned Magistrate erred in law in failing to give adequate reasons for finding each of the appellants guilty of an offence contrary to s 19(1) of the Animal Welfare Act 2002 (WA) (Act)
Particulars
The Magistrate’s reasons for decision:
(a) do not disclose whether he applied the relevant principles relating to the burden and standard of proof; and
(b) do not disclose the reasoning process that was adopted to reach the conclusion that the appellants had failed to establish the defences that were raised pursuant to ss 23 and/or 25 of the Act.
2. The learned Magistrate erred in law and in fact in finding (at [102] of the reasons for decision) that the animal the subject of the charge had suffered unnecessary harm because a decision had been made to tip the horn and ship the animal, as opposed to putting it back in the paddock.
Particulars
(a) The Magistrate’s finding was based on the evidence of the second appellant, but he was not present at the time the animal the subject of the charge was dehorned.
(b) There was no evidence that a decision had in fact been made to tip the horn and ship the animal, as opposed to putting it back in the paddock.
(c) There was no evidence that the animal the subject of the charge had in fact been shipped, as opposed to being put back in the paddock.
(d) If there was reasonable doubt about whether the animal had in fact been put back in the paddock then, based on the Magistrate’s own reasoning, it did not suffer unnecessary harm.
3. The learned Magistrate erred in law, or there was a miscarriage of justice, by failing to determine whether the appellants should be acquitted on the basis that they had proved that they had a defence to the charge for which they were found guilty pursuant to s23 of the Animal Welfare Act 2002 (WA).
4. The learned Magistrate erred in law, or there was a miscarriage of justice occasioned, by failing to determine whether the appellants should be acquitted on the basis that they had proved that they had a defence to the charge for which they were found guilty pursuant to s25 of the Animal Welfare Act 2002 (WA).
26 The respondent concedes grounds 1 and 3 of the appeal.
Ground 1 -the content of the learned Magistrate's obligation to provide reasons
27 Section 31 of the Magistrates Court Act 2004 (WA) sets out the requirements of the contents of reasons for a judgment in the Magistrates Court in the following terms:
Judgments, content of
(1) The Court’s reasons for a judgment in a case -
(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c) need not canvass all the evidence given in the case; and
(d) need not canvass all the factual and legal arguments or issues arising in the case.
(2) The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
28 The content of the duty of a Magistrate to give reasons was explained by Martin CJ in Strahan v Brennan [2014] WASC 190 [88] - [92]. Magistrates must give adequate reasons for their decision. The content of that obligation and whether that obligation has been satisfied in a particular case depends on considerations elucidated in the Magistrates Court Act and the relevant case law. Magistrates Courts are summary courts and Magistrates are to conduct their work with expedition and a degree of informality appropriate to the disposition of the large volume of cases brought before the Magistrates Court. It is not appropriate to scrutinise a Magistrate's reasons for decision with a fine tooth comb or with an eye keenly attuned to the identification of error, or to infer error from infelicity of language. Nevertheless a Magistrate's reasons must disclose the underlying intellectual process which has given rise to the conclusions. The adequacy of those reasons is to be assessed by looking at the reasons as a whole, including findings expressly made and findings to be inferred from findings expressly made and in the context of the particular case in which the reasons have been given.
The adequacy of the learned Magistrate's reasons
29 There are fundamental principles of law in a criminal trial that the accused is presumed innocent, that the burden of proving a charge is on the prosecution and that the standard to which it must do so is beyond reasonable doubt. These principles are so fundamental and well known that it is not necessary for a Magistrate to expand upon them and in an appropriate case it is possible to infer from the reasons as a whole that the Magistrate has considered and applied them. In this case the learned Magistrate made no reference to those principles at all and it is not possible to infer from the reasons that he considered and applied them. He did not say that he had considered them. He did not say that he was satisfied of guilt beyond reasonable doubt. His Honour's reasons were inadequate because his Honour did not identify the law he applied in coming to his decision that each accused was guilty of a charge.
30 It is also not possible to determine from the learned Magistrate's reasons how he concluded that the animal had suffered unnecessary harm. On this issue there was a dispute on the evidence that had to be resolved before the learned Magistrate could be satisfied that the prosecution had proved the essential elements of the charge against each appellant. The evidence of the defence witnesses was that the animal was a feral animal that had not previously been mustered, that feral cattle which have not been dehorned can seriously injure and kill people and can cause injury and death to other animals and that unless a feral animal's horns are removed close to its head the risk of injury and death remains. His Honour was not required to accept that evidence. His Honour was not required to conclude that the evidence gave rise to a reasonable doubt as to whether the prosecution had proved the essential elements of the charge beyond reasonable doubt. His Honour was required to consider that evidence in deciding whether the prosecution had proved the charge. His Honour's reasons do not show that he did so. The adequacy of his Honour's reasons is to be assessed by looking at those reasons as a whole, including findings expressly made and findings to be inferred. Looking at those reasons as a whole they do not expose the underlying intellectual process which lead to the conclusion that the animal had suffered unnecessary harm.
31 Further, if the learned Magistrate was satisfied beyond reasonable doubt that the animal had suffered unnecessary harm, it was necessary for his Honour to consider the issues raised by the evidence under s 23 and s 25 of the Animal Welfare Act. The evidence of Dr Morrell was that the dehorning was done in a humane manner that was consistent with the standard procedure in the northern beef cattle industry. The evidence of Dr Trembath was that the dehorning was the standard method used in grazing activities in the north which was carried out humanely, quickly and efficiently. In relation to the defence under s 25 this case concerned the management of previously unmustered cattle in a large grazing operation. It was necessary for his Honour to consider whether, in that context, the appellants had satisfied him on the balance of probabilities that the dehorning was carried out in accordance with par 8.3 of the Model Code of Practice. His Honour's reasons fail to demonstrate how his Honour reached the conclusions that the appellants had not established defences under s 23 and s 25. His Honour's reasons were inadequate because he did not identify the facts that he had accepted or his reasons for doing so.
32 The appellants have made out the first ground of appeal. The respondent's concession is correctly made. I grant leave to appeal on that ground.
33 Section 14(2) of the Criminal Appeals Act 2004 (WA) provides that even if a ground of appeal might be decided in favour of the appellant the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. In view of my conclusions as to the inadequacy of his Honour's reasons I cannot be satisfied that no substantial miscarriage of justice has occurred. I will therefore allow the appeal.
34 It is not necessary to consider the remaining grounds of appeal and, in view of the absence of analysis of the evidence and of conclusions as to that evidence by the learned Magistrate, it would be difficult to do so.
Whether to order a retrial
35 The respondent does not seek a retrial of the charges. Section 14(1) sets out what the Supreme Court may do when deciding an appeal. It is expressed in permissive language. It is in different terms to s 30, which deals with the Court of Appeal's powers on an appeal against a conviction in a superior court. In Daniels v The State of Western Australia [2012] WASCA 213; (2012) 226 A Crim R 61 [126] - [131] Buss JA reviewed authorities on whether a retrial should be ordered when allowing an appeal from a superior court. Ordinarily a decision as to whether there should be a retrial is for the prosecuting authority, but a court can order a judgment of acquittal be entered. Factors which may lead a court to do so include the way in which the prosecution case was conducted, the strength of that case, the seriousness of the charge and delay.
36 In this case I make no criticism of the way that the prosecution case was conducted. The prosecution took a considerable amount of time and, no doubt, involved considerable expense for all parties. The respondent has made an informed decision not to proceed with a prosecution if the appeal is allowed. In my view that is an entirely appropriate decision. In those circumstances I consider it appropriate not to require any further expense or delay in the finalisation of the prosecution and I will not order a retrial.
The appeal against the costs order
37 The grounds of appeal against the learned Magistrate's costs order are:
1. The learned Magistrate erred in the exercise of his discretion when awarding costs to the First and Second Appellants by erroneously awarding costs in accordance with the Official Prosecutions (Accused’s Costs) Act 1973 (WA) and in accordance with, or by reference to, the Legal Profession (Official Prosecutions) (Accused’s Costs) Determination 2014.
Particulars
The Magistrate was required to make such orders as to costs as he thought fit pursuant to s58(1) of the Animal Welfare Act 2002 (WA).
2. The learned Magistrate erred in the exercise of his discretion when awarding costs to the First and Second Appellants by erroneously failing to take into account a relevant consideration, namely whether any disbursements had been incurred by the appellants.
3. The learned Magistrate erred in the exercise of his discretion in awarding costs to the First and Second Appellants that were plainly unreasonable or unjust.
38 Section 58 of the Animal Welfare Act gives a court hearing proceedings for an offence under the Act the power to make such orders as to costs as it thinks fit. His Honour does not appear to have made his decision as to costs pursuant to that power. In his decision as to costs his Honour said, at page 2 of the transcript of 25 July 2016, that the starting point was that all costs should be in accordance with the schedule under the Official Prosecutions (Accused’s Costs) Act 1973 (WA). In starting with that schedule his Honour was in error. The prosecution was not an official prosecution as defined in s 4 of that Act, the appellants were not accused as defined in that section and so the power to award costs under s 5 of the Act did not arise.
39 Ground 1 of the appeal against the costs order has been made out. I grant leave to appeal on that ground and allow the appeal.
40 The learned Magistrate failed to make his decision as to costs in accordance with the discretion which he had under s 58 of the Animal Welfare Act. As his Honour has failed to do so it is necessary to remit the question of costs to him so that, if the costs cannot be agreed, he exercises that discretion. It is not necessary or appropriate to consider the other two grounds of appeal. The costs will now be assessed on the basis that the appellants were entirely successful in their defence.
The respondent's applications for Suitors Fund Certificates
41 In respect of both appeals the respondent applies for certificates under s 10 of the Suitors Fund Act 1964 (WA). Both appeals succeeded on questions of law. I have a discretion to grant an indemnity certificate. The discretion is a discretion to grant, rather than a discretion to refuse, a certificate. There must be an appropriate basis for the exercise of the discretion. The fact that a respondent succeeded at first instance, but lost on appeal on a question of law, is not usually, on its own, sufficient: Richards v Faulls Pty Ltd [1971] WAR 129, 137 - 139; Jones v Dalcon Construction Pty Ltd [2006] WASCA 205(S) [5]; Nelson v Moorcraft [2014] WASCA 212(S) [13]. A relevant consideration is often whether and the extent to which the question of law was of general importance or application: Corruption and Crime Commission of Western Australia v Allen [2012] WASCA 242(S) [3]; Barr v Farrell [2013] WASCA 211 [13], Nelson v Moorcraft [13]. Those appeals did not involve questions of law of general importance or application. It involved the application of well-known principles to the facts of the case. Counsel for the respondent submitted that it was relevant that the Royal Society for the Prevention of Cruelty to Animals, a charitable body of limited means, was the respondent's employer and will effectively be liable for the costs of the appeal and that the prosecution concerned the proper limits of animal husbandry practice in widespread use. He referred to Barr v Farrell in which a certificate was granted to a non profit charitable respondent. I have born those matters in mind. In Barr v Farrell the appeal involved a question of law of some general application. I regard those appeals as being in a different category because they did not involve questions of law of general importance or application. I am not satisfied that it is appropriate to exercise my discretion to grant a certificate under the Suitors Fund Act and I do not do so.
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