Smiles, James John v Inspector General in Bankruptcy

[1998] FCA 655

FEDERAL COURT OF AUSTRALIA

BANKRUPTCY - Composition - special resolution of creditors accepting composition - proxies of certain creditors excluded by controlling trustee - instruments of proxy in question lodged with controlling trustee between date of commencement of meeting and date to which meeting adjourned - proxies excluded because instruments appointing them not received before announcement about appointment of proxies made by controlling trustee under s 64M of Bankruptcy Act 1966 (Cth) in first part of meeting - Bankruptcy Rule 85A - whether provisions of Division 5 of Part IV of Act (applicable to meetings of creditors of a bankrupt convened by trustee of bankrupt’s estate) “capable of being applied to” holding and conduct of a meeting of creditors of a debtor under Division 2 of Part X of Act, called by solicitor or registered trustee.

Bankruptcy Act 1966 ss 64M, 64ZB, 196, 198, 200
Bankruptcy Rules r 85A

JAMES JOHN SMILES v INSPECTOR GENERAL IN BANKRUPTCY & ORS

NG 611 OF 1997

EINFELD, LINDGREN, EMMETT JJ
SYDNEY
30 MARCH 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 611  of   1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JAMES JOHN SMILES
APPELLANT

AND

INSPECTOR GENERAL IN BANKRUPTCY
FIRST RESPONDENT

GEOFFREY DAVID McDONALD
SECOND RESPONDENT

GILES GEOFFREY WOODGATE
THIRD RESPONDENT

JUDGES:

EINFELD, LINDGREN, EMMETT JJ

DATE:

30 MARCH 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed with costs.

1. The orders made on 9 July 1997 in proceeding NX 33 of 1996 be set aside.

1. In lieu thereof the following orders be substituted:

   (a)the preliminary question posed for determination of the Court be answered “Yes”;

   (b)       the proceedings be dismissed;
              (c)       the applicant pay the respondents’ costs of the proceedings.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 611  of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JAMES JOHN SMILES
APPELLANT

AND

INSPECTOR GENERAL IN BANKRUPTCY
FIRST RESPONDENT

GEOFFREY DAVID McDONALD
SECOND RESPONDENT

GILES GEOFFREY WOODGATE
THIRD RESPONDENT

JUDGES:

EINFELD, LINDGREN, EMMETT JJ

DATE:

30 MARCH 1998

WHERE MADE:

SYDNEY

REASONS FOR JUDGMENT OF THE COURT

FACTUAL BACKGROUND
On 27 February 1996 the appellant, James John Smiles (“the Debtor”) signed an authority under s 188 of the Bankruptcy Act 1966 (Cth) (“the Act”) authorising Giles Geoffrey Woodgate (“the Controlling Trustee”) to call a meeting of his creditors and to take over the control of his property. The Controlling Trustee, having consented to exercise the powers conferred on him by the authority, proceeded to call a meeting of the Debtor’s creditors in accordance with Division 2 of Part X of the Act. The meeting was called for 1 April 1996.

A meeting took place on that day and, after the conduct of some business, it was adjourned to 1 May 1996. At the adjourned meeting, a special resolution was put to the meeting and carried, to the effect that the Debtor make a composition pursuant to the provisions of Part X of the Act subject to terms and conditions that were specified in the resolution. It was also resolved that the second respondent, Geoffrey David McDonald, be appointed trustee for the purpose of administering the composition. The Controlling Trustee presided at the meeting. In that capacity, he rejected proxies which had been received by him after 1 April 1996 from National Mutual Trustees Limited, Trigamist Holdings Pty Limited, Ironaid Pty Limited and John Nicolo Cosco.

An application was then made by the Inspector-General in Bankruptcy for a declaration that the Controlling Trustee had wrongfully excluded those four creditors from voting, a declaration that the composition of the Debtor was not validly passed by a special resolution of creditors in accordance with Part X of the Act, and an order that the composition be declared void. The respondents to the application were the Debtor, Mr McDonald and the Controlling Trustee. Pursuant to Order 29 of the Federal Court Rules, an order was made that there be determined separately and prior to the determination of all other questions in the proceedings, the question of whether or not the Controlling Trustee was entitled to exclude the proxies for the four creditors (assuming they were creditors) from voting at the adjourned meeting on 1 May 1996.

That question came before a Judge of the Court who answered the question “No”.  That answer would have left other questions in the proceedings to be determined. However, leave was granted to appeal from that determination. The issue on the appeal concerns the extent to which the provisions of Division 5 of Part IV of the Act were applicable to the conduct of the meeting convened for 1 April and adjourned to 1 May 1996. It is necessary, therefore, to examine the provisions of the Act relating to the conduct of meetings under Part X, as those provisions existed on and between 27 February 1996 and 1 May 1996. Since that time, some of the provisions with which the present case is concerned have been amended by, in particular, the Bankruptcy Legislation Amendment Act 1996 (Act No 44 of 1996). Accordingly, we shall use the past tense in giving an account of the provisions of the Act.

LEGISLATIVE BACKGROUND
Part X of the Act relates to arrangements with creditors without sequestration. Division 2 contains, inter alia, provisions relating to meetings of creditors. Section 190(1) required a registered trustee who was authorised by a debtor to do so and who had consented to do so, to proceed to call a meeting of that debtor’s creditors in accordance with Division 2.  In the present case, by reason of s 194(1), the meeting of creditors had to be held not later than 35 days after the authority was signed by him or her and the Controlling Trustee was required to give notice of the meeting to each person who was stated by the Debtor to be a creditor.

Under s 196(1) the majority in number of the creditors present in person, by attorney or by proxy at a meeting called pursuant to s 190 were required to elect a chairman to preside at the meeting. Under s 198(1), every creditor was entitled, subject to s 198, to vote at such a meeting. However, under s 198(4) a creditor was not entitled to vote (otherwise than in respect of the election of a chairman of the meeting) unless the creditor had made known to the chairman particulars of his or her debt.

Section 200(1) of the Act provided that a creditor might vote either in person or by his attorney or by a proxy appointed in writing by the creditor or his or her attorney. However, under s 200(3) a person claiming to be the proxy of a creditor was not entitled to vote as proxy (otherwise than in respect of the election of a chairman of the meeting) unless the instrument by which he or she was appointed had been lodged with the chairman. Similarly, s 200(4) provided that a person claiming to be an attorney of a creditor was not entitled to vote as attorney (otherwise than in respect of the election of a chairman of the meeting) unless the instrument by which he or she was appointed had been produced to the chairman or the chairman was otherwise satisfied that he or she was the duly authorised attorney of the creditor.

Those and other provisions of Division 2 regulated the conduct of meetings under Part X for many years. By the Bankruptcy Amendment Act 1991 (Act No 9 of 1992), the Act was amended by the insertion of Division 5 in Part IV of the Act. Division 5 contained detailed provisions for regulating meetings of creditors of a bankrupt. At the same time, Rule 85A was inserted into the Bankruptcy Rules providing as follows:

The provisions of Division 5 of Part IV of the Act with respect to the holding and conduct of a meeting held under section 64 of the Act apply, so far as they are capable of being applied, to the holding or conduct of a meeting held under Division 2 or Division 3 of Part X of the Act.

The clear intent of Rule 85A was to assimilate as far as possible the conduct of meetings of creditors under Part X with meetings of the creditors of a bankrupt under Part IV. It seems somewhat curious, however, that the amendment of the provisions relating to the holding and conduct of a meeting under Part X of the Act should be effected by a rule rather than by an amendment to the Act itself. The mechanism chosen rather suggests that the applicability of the new Division 5 of Part IV to Division 2 of Part X was an after-thought.

The validity of Rule 85A appears to be authorised supported by s 315(1)(d) of the Act which authorises the Governor-General to make rules, not inconsistent with the Act, prescribing matters for or in relation to the summoning of meetings of creditors and the proceedings at meetings of creditors, including the persons who are entitled to vote at such meetings. Prior to the insertion of Division 5 of Part IV, provisions relating to the holding and conduct of meetings of creditors of bankrupts were contained in the Bankruptcy Rules. In any event, there has been no challenge to the validity of Rule 85A.

To the extent that the provisions of Division 5 of Part IV did apply to the holding or conduct of a meeting under Division 2 of Part X, the changes were not insignificant.  However, the drafting of Rule 85A is not felicitous in that so far as the drafter unfortunately failed to give adequate consideration to the way in which the new provisions would operate in the context of the long standing provisions of Part X. For example, the concept of a controlling trustee which pervades Division 2 of Part X has no counterpart in Division 5 of Part IV. It is at least interesting, but of no immediate relevance, that ss 196 to 203 of the Act and Rule 85A were repealed in 1996 and a new section 196 was inserted in the Act in the following terms:

“Division 5 of Part IV applies, with any modifications prescribed by the regulations, in relation to a meeting called under an authority under section 188 as if:

(a)       the debtor who signed authority were bankrupt; and
           (b)       the controlling trustee were the trustee in the bankruptcy.

It is necessary to consider some of the provisions of Division 5 of Part IV in order to explain the question which has arisen.  Section 64(1) provided that the trustee of the estate of a bankrupt must convene a meeting of the creditors of the bankrupt in the circumstances there specified.  Under s 64A(1), if the trustee found out that a person was a creditor of the bankrupt, then, so long as the trustee was aware of relevant particulars in relation to the creditor, the trustee was to give notice in writing to that person of any meeting of the bankrupt’s creditors.  Under s 64B(4) the notice was to set out the agenda for the meeting and to state that additional matters might be added to the agenda with the leave of the meeting.

Under s 64D, the notice was to state that each creditor must give to the trustee at or before the meeting a written statement setting out the amount in respect of which the creditor claimed that the bankrupt was indebted to the creditor.  In addition, under s 64E, the notice was to have attached to it a form for use in appointing a proxy and was to tell the creditors that a creditor wishing to appoint a proxy must complete the form of appointment of proxy and either arrange for the proxy to give the completed form to the trustee at the meeting or send the completed form with the statement given by the creditor to the trustee in accordance with s 64D. 

Under s 64G, the agenda for the meeting was to comprise, inter alia, the following items:

(a)       the opening of the meeting,

(b)       the appointment of a minutes secretary,

(c)announcement of appointment of proxies and attorneys and circulation of instruments appointing proxies and copies of powers of attorney for inspection by the persons present,

(d)determination whether a quorum exists.

Section 64J required the trustee to prepare an attendance record for the meeting which was to indicate that particulars of creditors were to be entered as follows:

(a)the name of each creditor participating in person or by telephone, or represented by a proxy or attorney,

(b)if a creditor was so represented by a proxy or attorney, the name of the proxy or attorney,

(c)in respect of each creditor whose name was entered, the value of the creditor’s debt.

Under s 64K(1) the trustee was to preside at the meeting until a person was elected by the creditors to preside under s 64P. Under s 64K(4) the trustee was to circulate the attendance record prepared in accordance with s 64J among the creditors, proxies and attorneys and was to ask them to enter in the record the relevant particulars of the creditors, the proxies and attorneys and the debts of those creditors.  The trustee was also required to enter in the attendance record the relevant particulars of creditors or their proxies or attorneys who were participating in the meeting by telephone.

There followed what appeared to be a series of steps intended to be undertaken chronologically.  For sSection 64M provided that the Trustee must then announce:

(a)the names of the creditors who were not participating in person or by telephone, but whose proxies or attorneys were participating in person or by telephone; and

(b)       the names of the proxies and attorneys.

Under s 64M(2), the trustee was then to circulate the instruments appointing proxies, and the powers of attorney or copies of the powers of attorney, for inspection by persons present at the meeting.  Section 64N required that the trustee then determine whether a quorum was present.  As the learned trial Judge observed, the purpose of the announcement followed by the circulation of the instruments appointing proxies or attorneys was to allow persons present to raise with the trustee any issue as to the validity of such instruments. 

Division 5 provided for subsequent steps relating to the election of a person to preside at the meeting (s 64P), the consideration of whether the time appointed for the meeting was convenient (s 64Q), the tabling of the bankrupt’s statement of affairs (s 64R), statements and questions (s 64S), the proposal of motions (s 64T), the remuneration of the trustee (s 64U), the appointment of a committee of inspection (s 64V) and other business (s 64W).

The pivotal provisions so far as the question in issue is concerned are ss 64ZA and 64ZB.  Section 64ZA(2) defined the term “creditor” in s 64ZA as meaning a creditor who, or whose proxy or attorney, participated in the meeting in person or by telephone.  Under s 64ZA(3) a person other than a creditor was not entitled to vote and under s 64ZA(4) each creditor was entitled to vote and had one vote.  However, under s 64ZA(6) a creditor who had failed to give to the trustee a statement in accordance with s 64D was not entitled to vote.

Section 64ZB(1) provided that a creditor who participated in a meeting in person or by telephone might cast the creditor’s vote personally and not otherwise. Section 64ZB(2) provided that, subject to s 64ZB(3), the vote of a creditor who was not participating in a meeting in person or by telephone might be cast by a proxy duly appointed by the creditor, being a proxy participating in the meeting in person or by telephone, and the casting of a creditor’s vote by such a proxy was taken to constitute the casting of a vote by the creditor.

Section 64ZB(3), which is the critical provision in relation to the issue before the Court, provided that a creditor’s proxy was not entitled to cast the creditor’s vote at a meeting unless the instrument appointing the proxy was received by the trustee before the announcement about the appointment of proxies and attorneys was made at the meeting under s 64M.

There is some duplication in Division 5 of Part IV of provisions contained in Division 2 of Part X. Relevantly, for example, s 198(4) provided that a creditor was not entitled to vote unless the creditor had made known to the chairman “particulars of his debt”. Correspondingly sSection 64ZA(6) provided that a creditor was not entitled to vote if the creditor had failed to give to the trustee “a statement in accordance with s 64D”. 

Secondly, s 200(3) provided that a person claiming to be a proxy of a creditor was not entitled to vote as proxy unless the instrument by which he or she was appointed had been lodged with the chairman. Section 64ZB provided a more specific and, in some cases, an additional requirement, that the proxy was not entitled to cast the creditor’s vote unless the instrument appointing the proxy was received by the trustee before the announcement about the appointment of proxies was made under s 64M.

In the present case, that difference is critical because, as the trial Judge found, the instruments of proxy in respect of the four creditors were not received by the Controlling Trustee before the announcement made under s 64M, although they were lodged with the chairman before the vote was taken on the resolution in question. The issue for decision is whether the provisions of s 64ZB(3) were capable of being applied to the holding and conduct of a meeting under Division 2 of Part X. The learned primary trial Judge held that they were not.

REASONING ON THE APPEAL
It is important to bear in mind that Rule 85A was valid only to the extent that it was not inconsistent with the provisions of Division 2 of Part X.  If it were inconsistent with those provisions, s 315(1)(d) would not authorise the making of the rule.  Thus, since the appeal has proceeded on the basis that the rule was valid, the only question is whether the provisions of Division 5 of Part IV were capable of being applied to a meeting held under Division 2 of Part X.

It was suggested that ss 64ZB(3) and 200 were substantive provisions which could not stand together. It was also suggested that s 200 laid down a code regulating the extent to which a creditor might vote by a proxy at a meeting under Division 2 of Part X. If s 200 constituted a code or covered the field in relation to voting by proxy, Division 5 of Part IV would be inconsistent with it in so far as it purported to impose additional requirements for voting by proxy. We do not consider that it was a code.  Once it is accepted that Rule 85A is valid, it is In our opinion that s 64ZB(3) was capable of being applied to the holding or conduct of a meeting held under Division 2 of Part X. Section 200(1) provided that a creditor might vote by a proxy. That right was then qualified by s 200(3) in so far as that section provided that a proxy was not entitled to vote unless the instrument by which he or she was appointed had been lodged with the chairman. However, other than that it would have to be so lodged prior to any vote, nothing in s 200(3) specified the manner or the time by which such an instrument was to be lodged with the chairman. On the other hand, s 64ZB(3) did specify a time by which an instrument appointing a proxy had to be received by a trustee of the estate of a bankrupt.

Thus, if an instrument by which a proxy is appointed was not lodged with the chairman, that was an end of the matter. The creditor might not vote by that proxy. However, even if an instrument appointing a proxy had been lodged with the chairman, there was no inconsistency in providing that the proxy was still not entitled to cast the creditor’s vote unless the instrument appointing the proxy was received by the controlling trustee before the announcement under s 64M. Section 64ZB(3) is therefore capable of being applied to the conduct of a meeting under Division 2 of Part X. The two provisions are capable of being applied together if they are viewed as cumulative.It was suggested that ss 64ZB(3) and 200 were substantive provisions which could not stand together. It was also suggested that s 200 laid down a code regulating the extent to which a creditor might vote by a proxy at a meeting under Division 2 of Part X. If s 200 constituted a code or covered the field in relation to voting by proxy, Division 5 of Part IV would be inconsistent with it in so far as it purported to impose additional requirements for voting by proxy. Once it is accepted that Rule 85A is valid, s 64ZB(3) is capable of being applied to a meeting under Division 2 of Part X.

The learned primarytrial Judge attached some significance to the fact that s 200(3) expressly excluded voting in respect of the election of a chairman from the requirement that an instrument of proxy must have been lodged with the chairman. It was suggested that that provision of s 200(3) assumed an entitlement in a person claiming to be a proxy to vote in respect of the election of a chairman and that such an assumption was incompatible with the terms of s 64ZB(3).

Further, the learned primarytrial Judge was of the view that s 200 did not, by its terms, import a requirement of the kind contained in s 64ZB(3), and that the requirement of s 64ZB(3) was incompatible with the lesser requirement of s 200(3). The conclusion of the primary trial Judge was that to apply s 64ZB(3) to a meeting under Division 2 of Part X was to interfere with the manner of voting for such a meeting expressly provided for by s 200. This reasoning appears to assume that s 200 evidences an intention that the only qualification to the right to vote by proxy conferred by s 200(1) is the requirement that the instrument be lodged with the chairman.

However, if it be accepted that s 64ZB(3) does no more than specify a procedure whereby the identity of proxies is resolved, there is no incompatibility between the two provisions. In any event, of course, Rule 85A does not speak in terms of incompatibility but capability of application. The requirement of s 200(3) that the instrument be lodged with the chairman and the requirement of s 64ZB(3) that the instrument be received by the trustee of the estate of the bankrupt before the announcement under s 64M are capable of standing together.

Division 5 of Part IV introduced a new regime whereby a creditor or proxy or attorney might participate in a meeting by telephone. It was not suggested that that regime could not apply to a meeting under Division 2 of Part X. To that extent, at least, the effect of Rule 85A in relation to a meeting under Division 2 of Part X was substantive. There is no reason to conclude that the additional requirement of s 64ZB(3), even if it be a substantive provision rather than a purely procedural one, was not capable of being applied to the holding and conduct of a meeting under Division 2 of Part X.

The person who calls a meeting of the creditors of a debtor under s 188 is a solicitor or a registered trustee. The person who convenes a meeting of the creditors of a bankrupt under s 64 is the trustee of the estate of the bankrupt. In the actual conduct of a meeting of the former kind, Division 2 of Part X gave no role to a “convening solicitor” and only a potential role to a “convening registered trustee”. The latter, but not the former, became, upon the giving of an effective authority under s 188, “the controlling trustee” in relation to the debtor’s property (s 189), and s 195(3) required the debtor, at the meeting, to answer “all questions put to him by the controlling trustee”. But, as we note later, neither the convening solicitor nor the convening registered trustee was required to attend the meeting.

Division 2 of Part X did not closely regulate the conduct of meetings of creditors under that Division. It contemplated that the first thing to happen at such a meeting was the election of a chairman to preside (s 196). Unlike the trustee of the estate of a bankrupt, who was to preside at a meeting of the bankrupt’s creditors under Division 5 of Part IV until those persons present appointed a person under s 64P to preside (s 64K(1)), Division 2 of Part X did not provide that the convening solicitor or convening registered trustee was to preside at a meeting under that Division until the election of a chairman under s 196. Similarly, ss 64 to 64P imposed several procedural duties on the trustee of the estate of the bankrupt down to the election of the “President” under s 64P, but those sections had no counterparts in Division 2 of Part X.

Were these various procedures “capable of being applied” to the conduct of a meeting under Division 2 of Part X? They were not if it was not possible and appropriate to read the references in Division 5 of Part IV as references to the convening solicitor or the convening registered trustee of Part X. But Division 2 of Part X did not require such a person to attend the meeting of creditors called by him or her at all (cf s 202(2) - adjournment by any creditor or attorney or proxy of a creditor, where quorum not present; 203(2)), although that Division contemplated that he or she might do so (ss 195(3), 203(2)). We return to this question later.

Within Division 2 of Part X, s 198(1) gave every creditor a general right to vote at a meeting under the Division. But this right was taken away unless the creditor had made known to the chairman particulars of his or her debt (s 198(3)). Similarly, s 200(1) gave creditors a right to vote in person or by his or her attorney or by a proxy appointed in writing by the creditor or his or her attorney, but ss 200(3) and (4) qualified that right by providing, respectively, that a person claiming to be a creditor’s proxy was not entitled to vote as such unless the instrument of appointment had been lodged with the chairman (apparently prior to the voting), and that a person claiming to be a creditor’s attorney was not entitled to vote as such unless the instrument of appointment had been produced to the chairman or the chairman was otherwise satisfied that the person was the duly authorised attorney of the creditor (apparently prior to the voting). But these qualifications on a creditor’s right to vote in person and by attorney or by proxy, were declared not to apply to the election of a chairman of the meeting, for the obvious reason that until a chairman had been elected, they could not be complied with.

It is important to bear in mind the distinction between the chairman who is elected at a meeting and the person who calls the meeting. In our opinion, there is no inconsistency between a provision that the particular disqualifying provisions of ss 198(4), 200(3) and 200(4), which require that a chairman have been elected, are not to apply to the election of the chairman, and the imposition of a different and antecedent disqualifying provision (s 64ZB(3)) if that provision is otherwise capable of being applied prior to the election of a chairman. To express the matter differently, we do not think that there is to be found in Division 2 of Part X, a legislative intention that the only qualifications on a creditor’s right to vote at all or by proxy or by attorney are to be those referred to in ss 198(4), 200(3) and 200(4), which depend upon the election of a chairman having taken place.

We find the more difficult question in the present case to arise from the fact that Division 5 of Part IV required the trustee of the estate of the bankrupt to attend the meeting of the bankrupt’s creditors, and, indeed, to preside at it until the creditors elected a person to preside at the meeting, while there was no similar provision relating to the convening solicitor or the convening registered trustee in Division 2 of Part X.

Notwithstanding the unfortunately elliptical provision of Rule 85A, we think that s 64ZB(3) was capable of being applied to a meeting under Division 2 of Part X, since we think that for the purpose of Rule 85A it is possible and permissible to read the references in Division 5 of Part IV to the “trustee” as including a reference to a solicitor or registered trustee who has convened a meeting of creditors of a debtor under Division 2 of Part X. Some such adjustments must be made if Rule 85A is to have any effect. In their absence, it would have to be said that none of the provisions of Division 5 of Part IV was capable of applying to the holding or conduct of a meeting under Division 2 of Part X, because the former related only to the creditors of a person who was already bankrupt, and not to the creditors of a non-bankrupt debtor. We accept that an effect of our view is that Rule 85A had the substantive effect of requiring a convening solicitor or convening registered trustee to attend meetings of creditors convened by him or her, although this had not been required previously.

CONCLUSION
It follows that the Controlling Trustee was entitled to exclude the proxies of the four creditors from voting at the adjourned meeting of the Debtor, assuming those persons were creditors. The The trial Judge erred in giving the answer “No” to the preliminary question and that question posed should therefore be have been answered “Yes”.  On the hearing of the appeal, it was conceded that if this were to be our decision, the preliminary question should be answered “Yes”, it would followthe consequence was that the proceedings below should have been dismissed since that answer was determinative of the proceedings.  The orders which should be made on the appeal are that:

1. The appeal be allowed with costs.

1. The orders made on 9 July 1997 in proceeding NX 33 of 1996 be set aside and in lieu thereof the following orders be made:

   (a)the preliminary question posed for determination of the Court be answered “Yes”;

   (b)       the proceedings be dismissed;
              (c)       the applicant pay the respondents’ costs of the proceedings.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Court

Associate:

Dated:  30 March 1998

Counsel for the Appellant:	Mr M R Aldridge
Solicitor for the Appellant:	Dibbs Crowther Osborne
Counsel for the First Respondent:	Mr B Skinner
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	19 March 1998
Date of Judgment:	30 March 1998