Strahan & Strahan (No. 3)

[2009] FamCA 755

FAMILY COURT OF AUSTRALIA

STRAHAN & STRHAN (NO. 3) [2009] FamCA 755

FAMILY LAW – STAY – application by the wife seeking a stay of all proceedings pending the determination of an appeal against the dismissal of an application for disqualification of the judge – whether a successful appeal would be rendered nugatory if a stay denied – whether the application for a stay is bona fides – whether the wife would suffer prejudice or hardship if a stay denied – where there are no special circumstances justifying a stay – application dismissed

FAMILY LAW – PRACTICE AND PROCEDURE – application by the wife seeking an adjournment of both interim parenting and interim financial issues listed for hearing – where the wife has insufficient funds to prepare and argue the case – where the husband was not advised of the wife’s position until the day before the hearing – adjournment granted only with respect to the wife’s applications seeking financial orders – no adjournment of interim parenting issues

FAMILY LAW – CHILDREN – interim proceedings – orders for the child to spend time with the husband

Family Law Act 1975 (Cth)

Kelly v Kelly (1981) FLC 91-007

APPLICANT: Ms Strahan

RESPONDENT: Mr Strahan

INDEPENDENT CHILDREN’S LAWYER: Ann Bills

FILE NUMBER: ADF 228 of 2005

DATE DELIVERED: 8 April 2009

PLACE DELIVERED: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 8 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M Pyke QC

SOLICITOR FOR THE APPLICANT: Pederick Lawyers

COUNSEL FOR THE RESPONDENT: Mr N Ackman QC

SOLICITOR FOR THE RESPONDENT: Robinson & Mason

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mrs V West

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Ann Bills & Associates

Orders

1. That the Application in a Case filed by the wife on 3 April 2009 be dismissed and removed from the active pending cases list.

2. That the Amended Application for spousal maintenance filed by the wife on 9 December 2008 and the Response filed by the husband on 22 December 2008 be adjourned for mention to 9:45am on 4 May 2009.

3. That paragraphs 6, 7, 8 and 9 of the Further Amended Application in a Case filed by the wife on 15 January 2009 and the Response, in so far as it responds to those paragraphs, filed by the husband on 25 February 2009 be adjourned for mention to 9:45am on 4 May 2009.

4. That the application by the wife to adjourn paragraph 2 of the Further Amended Application in a Case filed by the wife on 15 January 2009 and the Response, in so far as it deals with that paragraph, filed by the husband  on 25 February 2009 be dismissed.

5. That on the oral application of the husband the child … born on … June 1996 spend time with the husband as follows:

   a.if possible from 8:45am but in any event no later than 9:00am until 3:00pm on 12 April 2009;

   b.from 11:30am until 3:00pm on 16 May 2009;

   c.from 11:30am to 3:00pm on 17 May 2009.

   UPON the follow conditions:

   (i)that on 12 April 2009 the husband collect the said child from the wife’s home at the commencement of the time to be spent and return him there at the conclusion of the time to be spent.

   (ii)that on 16 May 2009 and 17 May 2009 the wife deliver the said child to the home of the husband at the commencement of the time to be spent and the husband return the said child to the home of the wife at the conclusion of the time to be spent.

   (iii)that in the event that the time to be spent on 12 April 2009 does not occur, a therapist or carer, neither of whom are family members of the wife, do attend if available with the said child at the home of the husband at the commencement of the time to be spent on 16 May 2009 and 17 May 2009 and remain with the said child for no more than one hour unless requested by the husband to remain longer.

6. That the handovers for the purposes of the order for the said child to spend time with the husband be conducted only between the parties.

7. That the question of further time to be spent by the said child with the husband be adjourned for mention to 9:45am on 4 May 2009.

8. That all other applications and responses be further adjourned for mention to 9:45am on 4 May 2009.

9. That leave be given to the husband’s legal representatives to attend the adjourned hearing by telephone.

10. That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the attached Fact Sheet.

IT IS NOTED that publication of this judgment under the pseudonym Strahan & Strahan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 228 of 2005

MS STRAHAN

Applicant

And

MR STRAHAN

Respondent

EX TEMPORE REASONS

Introduction

1. On 3 April 2009 the wife filed an Application in a Case in which she seeks an order that until further order paragraphs 2 and 3 of the order made by me on 13 March 2009 be stayed.

2. Paragraphs 2 and 3 of that order provided that further consideration of the wife’s Amended Application for spousal maintenance and the Response thereto, and the wife’s Further Amended Application in a Case and the Response thereto be adjourned to today for hearing.

3. Ms Pyke, in her initial submission to me, indicated that what in effect the wife is seeking is a stay of all proceedings, such that not only are those applications and responses not heard but also any other application that, for example, the husband might have before the Court be stayed.

4. There was an affidavit filed in support of that application by the wife's solicitor.  It is a short affidavit with little information, but, importantly, paragraph 5 sets out the ground on which the wife seeks the stay; that is, that if the orders contained in paragraphs 2 and 3 of the order of 13 March 2009 are not stayed then the appeal would be rendered nugatory. 

5. The application is opposed by the husband. 

Relevant background

1. On 13 March 2009 I delivered reasons for judgment and made orders including an order dismissing the wife's Application in a Case filed on 20 January 2009 seeking that I be disqualified from hearing any further proceedings in this matter.

2. I also made those orders that I have just referred to, namely, the orders in paragraphs 2 and 3 listing certain applications and responses for hearing today.

3. On 3 April 2009 the wife filed a Notice of Appeal against the order that I made on 13 March 2009 dismissing the wife's Application.  Unfortunately that Notice of Appeal was in the incorrect form, and there was a delay whilst a decision was made whether to receive the Notice in that form.  That decision was ultimately made and the Notice of Appeal was formally received on 7 April 2009. 

4. The Application for a stay was filed on 3 April 2009.

The law

1. Whether to make an order for a stay or not is wholly discretionary.  As Fogarty J said in the oft-cited case of Kelly v Kelly (1981) FLC 91-007, at 76,105, “[i]t is I think unhelpful to circumscribe the exercise of that discretion by particular phrases or by reference to particular categories. Each case must be looked at in the light of its own circumstances against the background of that general approach, and a decision made in each case as to whether a stay is proper in the light of the words of the regulations considered against the background of the decided cases. That the discretion should be wide and untrammelled by reference to particular categories is particularly important under the Family Law Act”.  However, it is accepted that a stay should not be granted as a matter of course, but only when “appropriate” or “special” circumstances can be established.  I refer again to the helpful judgment of Fogarty J in Kelly (at 76,104) for that proposition.

2. The ordinary rule is that a successful litigant is entitled to the fruits of his or her litigation, pending the determination of any appeal, and there needs to be special circumstances to justify a departure from that ordinary rule.

3. In this case the respondent husband, of course, is the one who is wanting to enjoy the fruits of his litigation, namely to have the outstanding applications and ultimately the trial of this matter heard, because the application, which I dismissed, had led to an inevitable delay in the progress of this case.

4. The circumstances justifying an order for a stay will of course vary from case to case but the strongest ground is the risk that to deny a stay will render a successful appeal nugatory or make it impossible or impracticable to restore the situation previously existing.  Again I refer to Fogarty J's decision in Kelly (at 76,104) for that proposition.

5. There are other considerations though.  For example, firstly the grounds and merits of the appeal.  Secondly, any undue delay in filing the appeal and bringing the application for a stay.  Thirdly, the bona fides of the applicant for the stay, and fourthly the length of time it would take for the appeal to be heard.  It may also be necessary to weigh the hardship that may be suffered by the unsuccessful application for a stay against the hardship that would be otherwise suffered by the respondent if the stay were granted.  This is often referred to as the balance of convenience.

Discussion

1. The special circumstance that the wife appears to rely on is the claim that a successful appeal would be rendered nugatory if the stay were denied.  However, as Mr Ackman has pointed out, if I did not grant the stay and proceeded to hear the outstanding applications, that would not render a successful appeal nugatory.  The appeal is against my order dismissing the wife's application that I disqualify myself.  If it were successful, then I would be disqualified from hearing any further applications in this case.  That decision will stand regardless of whether I grant or deny the stay, or whether I hear the outstanding applications or not.  Nor is it a case of not being able to reinstate or restore the situation previously existing.  To repeat, the appeal is against my order dismissing the application that I disqualify myself.

2. What the wife is seeking to prevent by this application is me hearing applications in this case.  In my view that is not a basis for a stay to be granted.  To repeat, for me to hear the applications will not render the appeal nugatory, which is the sole justification relied upon by the wife in her solicitor's affidavit.  It also must be remembered that the allegation made by the wife in relation to my disqualification was not that I am actually biased, but that there was an apprehension of bias.

3. That is sufficient to dispose of the application, but, because they were the subject of submissions, I turn to the other considerations that I can properly take into account.

4. Firstly, it is obviously difficult for me to comment on the grounds and merits of the appeal.  If I thought that there was any basis for the grounds or merit in the appeal, then I would not have made the order that I did.  Thus I do not want to comment any further on that.  However, I do point out, as Mr Ackman has said, that there appears to be nothing new in the grounds of appeal and nor is there any subtle point or points of law being promoted.

5. Secondly, the appeal was filed well within the time allowed and the application was made at that time.  Thus there is no room for any criticism of the wife in this regard.

6. Thirdly, no-one has been able to give me any indication of the length of time it would take for the appeal to be heard and thus I cannot, obviously, take that into account in any way.  I comment though that I find it concerning that apparently no attempt has been made to ascertain a possible time frame.

7. Fourthly, the husband's Senior Counsel has raised in his submissions the issue of the bona fides of the wife both in relation to the appeal and the application.  The submission of Mr Ackman was in the context of a letter, which is now marked Exhibit H1.  It is a letter from the wife's solicitors to the husband's solicitors of 7 April 2009 indicating that the wife has not been able to fund the preparation and hearing of argument in relation to the matters listed for hearing today and advising that under the circumstances, should a stay not be granted, the wife would be seeking an adjournment of approximately one month, by which time the Full Court judgment in relation to the wife's appeal against orders that I made providing for the payment of $1 million is anticipated to be delivered.  It suggests that the wife is now unable to adequately fund the preparation and argument of the pending applications.

8. The implication that Mr Ackman suggests can be made from that letter, in the circumstances of the appeal and the application that is before me, is that those proceedings were only filed in order to delay hearing any further applications until the result of the other Full Court appeal was known, that appeal being in relation to the wife's funding.

9. Ms Pyke has put to me that I should in effect disregard that letter in considering the Application for a stay because it is not related to that application.  She says that the first step is to consider that application, and what might flow from whatever decision I make about that will only then need to be looked at.

10. However, I do not agree with that submission.  One of the factors I am to consider in determining a stay is the issue of bona fides.  The question is whether any implication can be made from this letter in the circumstances of the appeal and the application which might impact upon the question of bona fides.

11. I am concerned about such a letter being sent the evening before the hearing, but I do not consider that I can make the implication from the letter or the circumstances of the appeal or application that is suggested by Mr Ackman.  However, I consider that I should have been told of the wife's position in this regard at least at the commencement of the hearing and more to the point as soon as the wife realised that she was not able to fund the preparation and argument of the applications and responses listed for hearing today.

12. Finally, in terms of the other circumstances that I am able to take into account there is what has been referred to as the balance of convenience or the prejudice or hardship to the parties.  The wife's senior counsel's submission to me is that there would be prejudice or hardship to the wife in denying the stay.  However, I fail to see that there would be prejudice or hardship sufficient to require a stay to be granted.  The only issue the wife raises in this context is that to deny the stay would result in the next step in these proceedings being the hearing of the outstanding applications.  The wife may feel aggrieved that I would be conducting that hearing because she still wants me disqualified, but it is important that these proceedings not be further delayed and that is where the balance of convenience lies.

13. I consider that there is still no special circumstance justifying a stay and I confirm my decision to dismiss the application.

14. I now have an application before me by the wife to adjourn the hearing of the applications and responses listed for hearing today.

15. Those applications and responses are as follows.  The wife’s application for spousal maintenance which is opposed by the husband, an application by the wife seeking variation or discharge of orders I made on 5 December 2008 with respect to the child spending time with the husband.  However, to interpolate, those orders of 5 December have expired in any event.  The last date for which there was to be time spent was, from memory, either late January or early February 2009.  Thus the real issue is what further orders should be made.  In the context of that application the wife has set out the orders that she is proposing on an ongoing interim basis in relation to the child.  The response by the husband sought, without detailing it, and I will be corrected if I am wrong, a continuation of my order of 5 December 2008 on an interim basis pending the trial in this matter.

16. In the summary of argument that the husband's Senior Counsel has provided to me for the purposes of the hearing today it is put that the husband seeks a slight variation to what he was seeking in his response, namely an order that he have time with the child on this coming Sunday from 9:00am to 3:00pm, and also an order that he spend time with the child on Saturday, 16 May, from 9:00am to 5:00pm, and then thereafter in accordance with the husband's affidavit, the effect of which, to repeat, is to continue my orders of 5 December 2008.

17. The reason for those orders sought on 12 April and 16 May is, as I understand it, to fit in with the recommendations now made by Dr C in the report annexed to the affidavit of the Independent Children’s Lawyer filed on 3 February 2009.

18. Continuing with the orders sought in the applications and responses listed for hearing today, the wife sought orders for the removal of the trustee of WS Nominees and appointing her as trustee. She sought a departure order from an administrative assessment of child support. She also sought leave to amend her Application for Final Orders to include a claim for child support and also an order pursuant to s 79(1)(d) of the Family Law Act 1975.

19. It can be seen that there are a number of orders sought by the wife of a financial nature and there are orders sought in relation to the child.  I proceed on the basis that, with the child, it is really the husband who has the carriage of that issue.  Thus, in dealing with the application to adjourn I have sought to compartmentalise the categories of orders sought into those that are of a financial nature, where the wife is seeking spousal maintenance, child support and, a variation to her Application for Final Orders in relation to property settlement, on the one hand, and, those that relate to the child on the other hand.

20. The application to adjourn is put on one basis and one basis only, namely, that the wife has run out of funds.  Her solicitor has unpaid fees or work in progress to the extent of $800,000.  The wife has, on the face of her current affidavit, minimal funds available to contribute to legal costs, and her solicitor is not able to instruct counsel without having funds available for that purpose.  There are some funds though which will, as I understand it, be used up as a result of today's hearing.

21. Ms Pyke has also indicated that if the adjournment was not granted then both herself, Mr Holland, who appears with Ms Pyke, and Ms Pederick, the wife’s solicitor, would have no other choice but to withdraw, leaving the wife to conduct this hearing herself.  The wife is not present though, and the reason for her absence relates to illness in her family.

22. The application to adjourn is opposed by the husband.  I will not attempt to repeat all of the submissions of Mr Ackman, but in effect he put to me that this should not have been allowed to happen, namely, looking at it objectively, the wife was well aware for some time that she did not have sufficient funds to fund her lawyers to prepare her case for the purpose of the hearing today, or to appear today and tomorrow and complete the hearing.  She is represented today but that was for the specific purposes of firstly pursuing an application for a stay, which I have dealt with earlier today, but also pursuing, obviously, the application to adjourn.

23. The nub of the submission is that the wife’s circumstances would have been well known to her some time ago, but she did nothing about it.  For example, Mr Ackman has pointed to the fact that as recently as 2 April 2009 an extensive affidavit was filed by the wife in relation to matters that were intended to be dealt with today, and there is nothing - Mr Ackman tells me, and I accept this - in that affidavit which reveals this specific difficulty that the wife has in terms of having no funding to prepare and argue the case today.

1. It was only today during the course of hearing the application for a stay that I was apprised of the situation that the wife found herself in, and then it was only done via a letter which was tendered by Mr Ackman.  Mr Ackman's solicitor received that letter yesterday evening and that was, as I understand it, the first formal or official notification that if the stay was not granted the wife would be seeking an adjournment today because she had been unable to fund the legal fees to ensure her legal representation, today and tomorrow.

2. Mr Ackman rhetorically asked, "Why wasn't the court told and why wasn't the husband and his legal representatives told of this problem re funding well before now?"  For the husband's part, he is seriously prejudiced, as Mr Ackman would say, because of course he has proceeded on the basis that the applications and responses would be heard today and tomorrow.  His legal representatives have prepared his case.  There have been affidavits prepared and filed, and there has been a financial statement prepared and filed.  There has been all of the necessary preparation for the hearing, including the preparation of an extensive outline of case.

3. As Mr Ackman puts it, the husband is entitled to have this matter heard unless there is a justifiable reason for it to be adjourned.  His submission is that the application for an adjournment is without merit.

4. In reply, Ms Pyke has asked me to take into account the fact that the wife's difficulty with funds has been and this is my phrase, on the table for some time now, and although there was no formal notification to the court, nor any application made in the lead-up to today about it, Ms Pyke takes issue with the suggestion that it would have come as a complete surprise to anybody that the wife might have found herself in this position today.

5. Counsel for the independent children's lawyer has obviously not made any submissions in relation to the financial matters.  She has confined her submissions, to any impact upon the child, and says that the Independent Children's Lawyer would be concerned if the matter was adjourned without there being some orders put in place for the child to see his father.

6. That said, the Independent Children's Lawyer's position is that if something could be put in place for the child, at least on an interim basis, then the Independent Children's Lawyer would not necessarily oppose the adjournment of the Application insofar as it relates to the child.

7. As I have said, and I come back to this now, I have addressed this application by compartmentalising the categories of the orders sought into financial (being those pursued by the wife) and parenting (being those pursued by the husband).  Although Mr Ackman has clearly and concisely outlined the prejudice that his client would suffer if there is an adjournment, the situation that I am presented with is that the wife has no funds.  On the face of the documents that have been filed, that is the case.  She is hopeful of succeeding in an appeal, and if she does succeed, there will obviously be further funds available to her.  She also still has an outstanding application before me for further funds to enable her to run her case.  There is no other source of funds that the wife has on the documents that have been filed.  It is only the Full Court appeal and the application that I have just mentioned which have the prospect of providing funds for the wife beyond the funds that she currently has, to enable her to properly fund her legal representation.

8. Thus If I did not adjourn the applications of the wife for financial type orders Ms Pyke, Mr Holland and Ms Pederick would withdraw and the wife would then be left to appear in person before me.  That is not a situation I am prepared to allow in a case like this, given the complexity of those financial matters, and given they are matters the wife is pursuing.

9. I take a different view though in relation to the applications in relation to the child. 

10. It is the wife who has brought the applications in relation to the financial matters and although she says she is in need of funds she is still seeking an adjournment of those applications.  She obviously appreciates that an adjournment will delay the finalisation of those applications, but it seems she is prepared for that result.

11. I must say though and I make this comment again in the context of this application, I consider that the way that issue has been handled by the wife, namely by only now seeking an adjournment on the basis of having no funding, when that would have been apparent to her some time ago, is of serious concern to me and has made me think long and hard about whether I should grant the adjournment of even the wife’s own applications.

12. I cannot understand why it was let go to the extent that it was, such that it is only today that these matters are raised formally before me when I have set two days aside for the hearing.  The wife well knew that.  This listing was set on 13 March 2009, and, as I have said, the objective facts are that the wife, even at that point, well knew that her financial circumstances were such that she would not be able to properly fund the preparation of her case and her representation today. 

13. Nevertheless, with the financial-type applications, being the wife's own applications, I am prepared to grant an adjournment.  The prejudice to the wife in forcing them on outweighs any prejudice to the husband in not having them heard now.

14. I take a different view, to repeat, in relation to the child.  What has happened and I have said this candidly - is that I wanted to try and address the issues with the child whilst the wife had her legal representatives here.  I am thankful to counsel, and obviously the parties and the Independent Children's Lawyer, in trying to reach some agreement about the immediate situation with the child, and to an extent that has been successful in that there is general agreement about occasions of time that the child is to spend with the husband on this Sunday and also on 16 and 17 May. 

15. However given that I am not disposed to adjourn the applications relating to the child, the obvious question for me is whether I now address making orders beyond 16 and 17 May.  In that regard, given the history of this matter in relation to the child and the orders that have been made, and the lack of success of a number of different approaches that have been tried it is my view that we have reached the stage where the position with the child should be taken step by step.

16. We have the recommendation of Dr C as to how a lead-in to establishing ongoing time with the child might work.  It seems to me that these occasions on 12 April and 16 and 17 May can be looked at in that light.  Even without hearing extensive submissions about it I can say that I am not disposed to look at any further order at this stage beyond 17 May.  I want to see what happens with the occasions which will be ordered, to assist in tailoring ongoing orders; and that is whether the orders for 12 April and 16 and 17 May are successful or not.

17. I sincerely hope that they are successful.  The child needs to spend some time with his father, and I can only look with optimism, given the parties are in general agreement about how these next occasions are to work, that this will occur.

18. There is not complete agreement though between the parties as to how the occasions of time spent are to be set up on 12 April and 16 and 17 May, and I need to make some decisions about that now.

19. In relation to 12 April, it seems the parties are agreed that there should be time spent on the basis of the husband collecting the child from the wife's home and returning the child there.  There is an issue though as to the commencement time, namely, whether it be 8:45am, as the husband seeks, or whether it is 9:00am, as it would appear the husband initially asked for and the wife agreed to.  As I understand it the basis of the request for 8:45am is to allow sufficient time to get to the church, which is the whole point of the exercise, so the child can be present and be part of the christening of the husband's child of his relationship with Ms AW.

20. Ms Pyke has put to me that her client will do everything she can to have the child ready at 8:45am.  She has indicated to me - and I have heard this submission before, and taken note of it and accepted it - that the child is sometimes difficult to budge in the mornings, and that is the only issue.  If the wife can get him ready by 8:45am, then obviously that will happen, but if it takes a bit longer, then unfortunately it is not going to happen.  Thus I rely on what the wife is saying, through Ms Pyke, as to her using her best endeavours to ensure that that takes place.  There is no dispute about the end time. 

21. The other issue about this Sunday is whether there should be an order or whether it should be simply noted as an agreement between the parties.  The wife does not want it made an order, but the husband does.  The reason, as I understand it, for the wife's position is that this was a request made by the husband quite late in the piece.  She has agreed to it, at this eleventh hour, and it should be simply recorded as an agreement between the parties and not as an order. 

22. The husband's position is also relatively simple and straightforward, namely that although there is agreement between the parties there is the need for an order. 

23. Ms Pyke has also raised the issue - a technical one, nonetheless - that there is no formal application before the court seeking the specific occasion of time.  Ms Pyke is obviously correct about that, but I have the ability to receive an oral application from Mr Ackman on behalf of the husband and make orders on that application.

24. I do propose to make an order and I will receive an oral application from Mr Ackman for that purpose.

25. In relation to 16 and 17 May there is agreement that it is to be from 11:30am to 3:00pm on each of those two days.  The issue though is whether a therapist or carer, depending on who is available at the time, should be present during the time that the child spends with his father.  There is agreement about the handover, will would be that the wife delivers to the home of the husband and the husband returns the child to the wife at the conclusion.

26. The wife wants a therapist or carer to be present, but the husband does not.  The Independent Children's Lawyer steers a middle ground and says that the therapist or carer should remain at least for the first hour and only remain thereafter if the husband asks for that.

27. Mrs West also puts to me that if Sunday, 12 April is successful, then given there is no therapist or carer involved there, then there should not be a therapist on 16 and 17 May.  The Independent Children's Lawyer says that to require a therapist to be present in those circumstances would be a retrograde step, given that the Independent Children's Lawyer's position is to avoid the use of therapists and carers whenever possible.

28. Thus the issue for me is what involvement should a therapist or carer have.  I am attracted to the position of the Independent Children's Lawyer.  It is a position I have adopted in making orders previously, and recalling the expert reports that are before me as well.  Thus I propose to put in place an order providing for a therapist or carer to attend initially and stay for say an hour but then leave if there is no obvious need for that therapist or carer to continue to attend.  Equally, I accept the logic of the Independent Children's Lawyer's argument that if it is successful this Sunday then there should be no need for a therapist or carer on 16 and 17 May.

29. The other issue, which Mr Ackman has now raised with me, is making it a condition or a proviso that the therapist or carer should not be a member of the wife's family.  That is something that I agree should be put in the order, and in addition the order should provide for the handovers to only be conducted between the parties.

I certify that the preceding 66 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 8 April 2009.

Associate