Sykes v Leipoldt

[1997] HCATrans 343

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
Level 7
451 Little Bourke St
Melbourne VIC 3000
GPO Box 1114J
Melbourne VIC 3001
Phone [phone]
Fax [phone]
  O/N 4295
  A  24.11.97

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M54 of 1997

BETWEEN:  IAN GRANT SYKES

Applicant

- and -             

JOHANNALODEWIJNA LEIPOLDT

1st Respondent

WENDY SYLVA (as Child Representative)

2nd Respondent

HAYNE J

AT MELBOURNE, WEDNESDAY, 19TH DAY OF NOVEMBER 1997

AT 9.35 AM

HIS HONOUR:   Now, Mr Sykes, you appear for yourself, I understand?

MR SYKES:   I do, yes.

HIS HONOUR:   Yes.

MS L.M. CROCKETT:   May it please, your Honour, I appear on behalf of the first respondent (instructed by Mahons).

HIS HONOUR:   Yes, Ms Crockett.

MR P.D. CORBETT:   If the court pleases I appear on behalf of the second respondent (instructed by Hall & Wilcox).

HIS HONOUR:   Yes, Mr Corbett.   Now, Mr Sykes, I have received from you a written outline of what you wanted to say together with some material attached to it.   I have also received from Ms Crockett an outline of her submissions.   Have you seen those?

MR SYKES:   I have got that, this morning.

HIS HONOUR:   And I have also received from Mr Corbett an outline of his submissions.   Have you seen those?

MR SYKES:   I have seen that this morning and I have given a copy to read and a copy absolutely to - of my submission to the others when I saw them.

HIS HONOUR:   Yes.  And I have also received a bundle of authorities from Ms Crockett.   Have you seen those?

MR SYKES:   I think so, yes.   I have not had time to read those.

HIS HONOUR:   No, well, are you happy to proceed now?

MR SYKES:   Yes, I am.

HIS HONOUR:   I have read the submissions, I have read the papers.   So you should assume that I am generally familiar with the matter.

MR SYKES:   Thank you.

HIS HONOUR:   Yes.

MR SYKES:   Yes.   Well, first of all I refer, if I may, to the submission that has been made by counsel Crockett because I think it is so misleading that it ought not to be tendered in the state that it is.   First of all the list is so incomplete as it can just lead the court to some conclusions which could not possibly stand.  

I will just draw attention to some of these things.   If it is going to be put that on 8 January 1996 the child's mother, which was my common law wife the only one I have dies, it should be also mentioned that on 1 October, thereabouts, by the affidavit material of Mrs Leipoldt - M.S. Leipoldt, that the child was placed in a foster home of a religious group by the mother prior to her going into hospital and she did that approximately 1 October '95.

Secondly, if it is to be mentioned that the wife died on 8 January '96 it should also be mentioned that on 23 January '96 without any written authority at all from any person, that is even to say be my common law wife or myself, my child was uplifted from the home where her mother left her and there was nothing in any Will or in any notation in writing at all that justified the person who had my child taking her interstate to another location.

Furthermore it ought to be mentioned, if these dates are to be put, that it was not until 13 June '96 that after five or six letters also to my wife had not been returned or answered that I discovered my wife was dead by a letter from the first respondent's solicitors claiming that the person concerned was a family friend, but I had never heard of her, and in fact she was in fact a psychiatric worker working Dunbar House where my wife was treated for a chronic mental illness called schizophrenia which she had for many years.

Also if it is to be mentioned that I have filed a section 66 application which I did it also ought to be mentioned that M.S. Leipoldt filed a section 66 application as well.   Otherwise there is not even handedness at all.  Also it is true that I commenced a Part IV under the Administration and Probate Action in regard to use of the family home till I die and for two things that I had given to my wife on trust.   But - and that I lost that because an unmarried person is not allowed to go before the court in that way by an originating summons.   But I immediately substituted that with a Writ which is on foot and in an active progress.

So I think generally this statement is of no help to the court and in fact it is terribly misleading.   Now, I now look to the second submission which I think perhaps is in a way - is a way of getting to the heart of what I am about.   First it is true - looking at their points 3, 4, and 5 there really are no facts in issue that are not already in the affidavit material of the various parties.  

In other words the basic facts are that really we are relying on section 116 of the constitution if that might apply here.   And next we are looking at an application by Mrs M.S. Leipoldt that my child be brought up in her religion and that is just per her application for final orders.  So really there is no extra evidence to be adduced. 

The second point I think is this, that the Family Court will still hear this matter or perhaps will hear it although of course my interests are that it not be heard if the action could be struck down at this stage.   The reason is, I think, to get through all the evidence that I will have to put before the Family Court it may take up to 91 days to put down the evidence as to what has happened, because I will be forced to prove my wife suffered from a mental illness and she was prone to making various allegations about not only myself, which I was extremely frightened of, but more or less all and sundry.

To do that I will have to subpoena people from Tasmania, from Dunbar House where of course the first respondent worked from 1992 or part of that year to 1994, part of that year, and that is how she met my wife. So I have put to proof of a long set of issues and also things like being surprised which I will have to try and bring in. So there is that idea and I think also of course that the Family Court ought not to be asked the questions that I am trying to ask it on the simplest possible ground and that is that they themselves have an interest in the outcome in the sense that I want to get rid of the Family Law Act.

I personally have the view rightly or wrongly and personally in this case have the view that it is not helpful to the efficiency of Australia at all and it is certainly terribly disastrous to my daughter and myself.  I might add that the total costs of today are borne by my daughter's estate, for she, for some reason that I still cannot understand, is financing Crockett and her legal counsel which are Mahons and has done so since early this year or middle of last year. 

So for some reason that I do not understand my daughter's estate is being used up in large licks fighting her father.  In other words, if we have a substantial court case in the Family Court on the one side my daughter who has just turned 11, just in this last week turned 11, will by financing an order a series of actions against her father which are based on what she is supposed to have said from memory when she was two.  Well, it is just absolutely a nonsense. 

Secondly, I might add to the court, that I have contempt proceedings out against the two key exhibits in Mrs Leipoldt's application which are Rodney James Buthen who made an exhibit which you have got the contents in one of the submissions I made, and secondly, M. S. Leipoldt's own submissions which - well, I of course would anyway whether I am guilty of something or not I would say they are scurrilous.  In other words, they are seeking to say a two year old child said that she had not seen me since she was two and taken to the Royal Children's Hospital because I had assaulted her.  Well, there is just nothing more ridiculous. 

The next point I raise is on 13 November '96 the orders made that I have no contact with my daughter whatsoever and that was confirmed later were made without adducing any evidence except the constitutional issue because Frederico J at the time said - I had subpoenaed by the way immediately the files from Dunbar House and the files from the Royal Children's Hospital, which I did.  But they had not arrived in court on the desk.

HIS HONOUR:   The immediate question which I have to decide is whether any part of the cause pending in the Family Court should be removed because it raises a constitutional issue.

MR SYKES:   Yes, it does, well that is their section.

HIS HONOUR:   Any complaint that you may have about the substance of the Family Court proceeding as distinct from the constitutional point which you say arises is ‑ ‑ ‑ 

MR SYKES:   Is ...(indistinct)...

HIS HONOUR:   ‑ ‑ ‑ at the moment seems to me irrelevant to the immediate question.  Can you therefore direct your attention to the question of removal, specifically.

MR SYKES:   Well, I say that on hearing from Mrs Leipoldt I ask about the religious upbringing of my child when no letter was answered in that respect.  On 13 November '96 I raised the constitutional issue because I saw there a chance that I could get rid of the action.  Now, I appealed on that and in each case lost and my point is basically that how can I in fairness and reality ask the Family Court to rule that either all or part of their Act might be invalid under the constitution on the basis of religion.  In other words, I am saying that the uplifting of my daughter for whatever reason infringes my basic right for the unimpeded use of my religion and practice of my religion as it reflects in my daughter.  So that is the issue.

HIS HONOUR:   As I understand it interim orders have been made in the Family Court but not yet any final order?

MR SYKES:   That is correct.

HIS HONOUR:   The final order that is sought includes an order that would deal with the religious upbringing of your child?

MR SYKES:   It is.

HIS HONOUR:   But presently no order has been made which in terms deals with the question of the religious upbringing of your child.

MR SYKES:   Justice Hayne I do not think we can go as little distance as that with respect, and the reason for that is this, that the fact is that I am excluded from all contact by order; secondly, the fact of the matter is that my daughter is being brought up in a religion other than my own and not attending the school that I wish, and it is not as if this is just for a month or so, these orders were made late last year, so they are already over a year old.  Also each time I have asked as to when my case might be coming up I do not have an answer.  So with respect I think the interim order also clearly breaches the constitutional issue and in fact I think you would have to find that was so in order to grant the relief that I seek. 

So basically there is only really two points.  It is more convenient that the constitutional issue be held and considered by this court and especially with the Family Court having an interest in the outcome of a decision on that because I am strongly arguing before that court that part of the Act or all of their Act is invalid under section 116 and I have persisted to argue that way in each of the judgments given against me the constitutional question is there.  So that I think is the essence of what I wish to say.  Thank you.

HIS HONOUR:   Yes, thank you, Mr Sykes.  Now, Ms Crockett, do you wish to add to anything that is said in your written outline of submission?

MS CROCKETT:   Only, your Honour, to direct you to the authorities that are not referred to in my submission.

HIS HONOUR:   Is that the bundle of authorities that you provided immediately before the court began?

MS CROCKETT:   It is, your Honour.

HIS HONOUR:   I have looked at those, thank you, Ms Crockett.

MS CROCKETT:   Beyond that, sir, unless you seek any elaboration I do not wish to make any further submission.

HIS HONOUR:   Yes, thank you.

MS CROCKETT:   May it please your Honour.

HIS HONOUR:   Mr Corbett, is there anything you wish to add to your written submission?

MR CORBETT:   A few minor points, your Honour, and that is under the terms of section 40 of the Act under which the application is made this is a purely, in my submission, discretionary matter for your Honour, having considered the totality of the circumstances and the interests of not only the parties but also the public interest, and in my submission Mr Sykes whilst having various reasons for seeking removal has not shown your Honour that the circumstances of this particular case warrant a case of some 91 days which he now says it will take being removed to this court for hearing and determination of a question which deals with where a child should reside.  In my submission, as a matter of discretion the court case ought not to be removed here at this stage or until such time as final orders have been made and final findings of fact have been made as to religion or any other matter which may effect where the child resides.

HIS HONOUR:   Yes, thank you, Mr Corbett.  Mr Sykes, is there anything you wish to say by way of reply to what has been said by either Ms Crockett or Mr Corbett?

MR SYKES:   Well, it is a matter of discretion, of course, and that is basically commonsense I suppose in the end of all these things and it really is desirable that what is happening to my daughter is stopped as soon as possible because of course I am biased, I am the father, but to me it seems almost an abomination that my daughter's estate is being frittered away on a case that is just a concocted nonsense.  So if I can use the constitution then well and good and of course discretion vests too in how important a matter might be, and it does seem to me that the constitution is an important document and it also gives the power of a section of the community of which you are now a member to revise basic laws that might seem to be working very badly.  Now, in my opinion there is no more fundamental reason why my ‑ ‑ ‑ 

HIS HONOUR:   There may be some doubt in the minds of some whether the role of the court is to revise basic laws.  It seems to be a matter of some controversy at the moment, the role of the court, Mr Sykes, and we had better not get into that debate, I fear.

[9.49am]

MR SYKES:   No.  We perhaps should not, but on the other hand we can leave the point that it is not sort of a minor issue at all.  It is a major issue, and the fact of the matter is that the Family Court law seems to lie ill at ease with section 116, and even if it does not, say the court decides, no, that is what that law does uphold, the rest of the community really is entitled to know.  That is my answer.  Thank you.

HIS HONOUR:   Thank you, Mr Sykes. 

Ian Grant Sykes has moved for an order that part of a cause now pending in the Family Court be removed into this court pursuant to section 40 of the Judiciary Act as a part of that cause arising under the constitution or involving its interpretation.  Mr Sykes is the respondent to an application made in the Family Court by Johanna Lodewijna Leipoldt for orders that (1) the child Louise Rachelle de Savery who was born on 14 November 1986 reside with the applicant Ms Leipoldt, (2) the applicant have the responsibility for making all long term and short term decisions relating to the welfare of that child, including her education, religious upbringing, medical and dental treatment, diet, discipline and like matters, and (3) Mr Sykes, who is the child's father, be refused contact with the child.

The child's mother died on 8 January 1996, several years after she and Mr Sykes had separated.  A representative of the child has been joined as a second respondent to the application in the Family Court and, with Ms Leipoldt, appears to oppose the application for removal.

It seems that an application for interim orders came on in the Family Court in November 1996 and it appears that interim orders were then made giving the custody of the child to Ms Leipoldt.  No order has yet been made dealing with the power to make long term decisions affecting the child.  The final hearing of the matter may not come on for trial until some time after June 1998.

Mr Sykes sought leave to appeal against the terms of the interim order but appears to have done so well beyond the time by which such an application should have been brought.  Leave to appeal out of time was refused.  Mr Sykes contends that the second of the orders which I have earlier mentioned, at least insofar as it deals with the religious upbringing of his child, is an order that could be made only in contravention of section 116 of the constitution.

His position as revealed in his affidavit in support of the present application is;

(a) he -

that is, Mr Sykes -

- does not agree to the proselytisation of Louise or to take any such risk, and nor is he required to under section 116 of the constitution; (b) the Family Law Act 1975 is being used to impose upon Louise both now and potentially in the future a religious observance other than the religious observance of her parent, and therefore breaches section 116 of the constitution;

I interpolate, the interim orders of Justice Frederico -

- now prohibit the free exercise of the applicant's religion as this extends to Louise, also breaching section 116 of the constitution;  (d) the educational order sought by the respondent has like effect, as the applicant wishes Louise to attend a religious school and to receive an education other than of the type Louise now receives, and thus (b) and (c) above also apply to this section of the orders sought by the respondent, as well as to the orders already granted on 13 November 1996 by Justice Frederico.

Accordingly, Mr Sykes contends that the matter should now be removed into this court.  In the course of his submissions he stressed the importance of this matter to him and to his daughter.  Its importance to both of those persons is obvious and I accept it.

He also complained in the course of his submissions about some aspect of the interim orders that had been made, and about what he contended was the unnecessary and inappropriate diminution of the assets of the child because, so he asserted, the costs of the proceedings were all ultimately being born by her.  Those are matters which in my view are matters not affecting, at least not directly affecting, the question whether the cause now pending in the Family Court or any part of it should be removed into this court.

It is by no means apparent to me that a law which enables the making of an order that a person other than the natural parent of a child have permanent custody of that child with power to make decisions about the long term welfare of the child, including decisions about the child's religious upbringing, is a law for establishing any religion or for imposing any religious observance or for prohibiting the free exercise of religion within the meaning of section 116 of the constitution. See Attorney General for Victoria at the relation of Black and Others v Commonwealth (1981) 146 CLR 559, Adelaide Company of Jehovah's Witnesses Incorporated v Commonwealth (1943) 67 CLR 116.

It is of course clear that there can be an intersection between questions which arise in the exercise of powers conferred on the Family Court and questions which might broadly be described as questions of freedom of religion. Such questions have been agitated and considered in decisions of the Family Court, including Firth v Firth (1988) FLC 77018 and Paisio v Paisio (1979) FLC 78512. See also the decision of the full court of the Supreme Court of Queensland in Kiorgaard v Kiorgaard reported at (1967) QR 162.

Even if it is arguable that a law which enables the making of an order that a person have permanent custody of a child with power to make decisions about matters including the child's religious upbringing is a law contravening section 116 of the constitution, I am of the view that the point is a point which will emerge properly only in light of particular orders that may be made in this matter, and after the making of any necessary findings of fact.

No order has yet been made in the Family Court dealing with the religious upbringing of the child;  no findings of fact have yet been made touching that matter.  That being so, I am of the view that the application for removal should now be refused;  that is, in my opinion, no part of the cause now pending in the Family Court between Ms Leipoldt and Mr Sykes should be removed into this Court.  Accordingly, the application will be dismissed.

MS CROCKETT:   If your Honour pleases.

HIS HONOUR:   Yes.

MS CROCKETT:   Your Honour, given your Honour's ruling, sir, I seek an order for costs on behalf of my client.  Sir, if your Honour is amenable to making such an order, I have prepared a list of - a bill of costs and I would seek ‑ ‑ ‑ 

HIS HONOUR:   The notion of getting me to tax a bill, Ms Crockett, is an act of rare and admirable courage;  courage in the sense of letting me loose with any sense of what are or are not proper costs.  If costs are to go, and I have not yet heard Mr Sykes on that, it would be far better that they are taxed than that I should have any say on how much they should be.

MS CROCKETT:   I appreciate what your Honour says.  The only reason I would urge your Honour to fix costs, if your Honour were minded to make the order in the first place, is of course to prevent the further expenditure in attending to have costs taxed.  The difficulty is this, sir.  As Mr Sykes rightly said, all these proceedings are being funded by the deceased mother's estate.  Not only is there an order in the Family Court that provides that the child representative costs are to be funded from that estate, but also by agreement between the parties - when I say between the parties, between the beneficiaries of the estate.  My costs or the first respondent's costs are also being funded from that source.

[10.04am]

The prime beneficiary is of course the child the subject of these proceedings, so of course the more that is expended on legal expenses will cause less money to be left for the benefit of the child.  Now, to that extent, sir, I make any attempt to try and minimise the costs that have been expended from the estate.  If it is not at all possible, well, it is not, but it is those circumstances that I draw to your attention in urging your Honour to make an order for costs.

HIS HONOUR:   Yes.

MS CROCKETT:   Also, sir, if I can indicate this:  Mr Sykes has on numerous occasions, including an open court in the Family Court, and I do have the transcript if necessary, it is also referred to in correspondence that Mr Sykes sent to my instructing solicitor, he has indicated that he is impecunious, that he has no capacity for meeting any order for costs and that certainly previous orders for costs have gone un-met, sir.  Notwithstanding that, sir, in my submission it is appropriate that an order be made following the event in this case.

HIS HONOUR:   Yes.

MS CROCKETT:   May it please your Honour.

HIS HONOUR:   Yes.  What do you say, Mr Corbett?

MR CORBETT:   Your Honour, I also seek the - or I seek the second respondent's costs and I would ask your Honour to fix them today for the reasons of minimising expense.  What I would seek would be a modest lump sum, and I say that because of the need to ‑ ‑ ‑ 

HIS HONOUR:   My jocular riposte to Ms Crockett is founded on this proposition.  It is at least five years, at least five years since I had to consider any question of costs at all, and I really am very significantly out of touch with what is right or not right in the area and I really am very fearful that if I am to be asked to fix costs that I will end up doing one side or the other an injustice through absolute ignorance.  Five years is a long time to be out of touch with costs.

MR CORBETT:   Can I say your Honour that inflation over that five year period has probably not made much of a difference but ‑ ‑ ‑ 

HIS HONOUR:   My last contact with costs was fixing my own fees, Mr Corbett, and I always resolved I would never turn into the judge who looked back enviously on those halcyon days as a silk, I am not about to.

MR CORBETT:   I think that the primary concern is one flagged by my learned friend Ms Crockett, and that is that both solicitors do not want to be put to the expense of having to put a bill in taxable form.

HIS HONOUR:   Yes, I understand that.

MR CORBETT:   What we would seek is the counsel's fees for appearing today and preparing the submissions, and what I would propose is that be a lump sum based upon the brief fee which I mark which I am happy to indicate to your Honour, and then also an allowance for the solicitor to prepare those and deal with - that is prepare the brief and deal with Mr Sykes in the court. 

HIS HONOUR:   But without holding out any representation or warranty of any kind, what is the amount of costs that you seek?

MR CORBETT:   On behalf of the child I would seek a lump sum figure of $1500.

HIS HONOUR:   Yes.  And, Ms Crockett, what is the amount which your client seeks

MS CROCKETT:   In fact, sir, my list comes to $2238.40 but I am prepared, without instructions, sir, to say a lump sum of $2000, sir.

HIS HONOUR:   Yes.

MR CORBETT:   Can I say on the matter of your Honour's discretion as to the costs in this case, in my submission Mr Sykes has sought an indulgence for this court and he has been unsuccessful in his case at considerable cost to his child and to the first respondent, and in my submission costs should follow the event of the dismissal of the application.

HIS HONOUR:   Is it not an unstated premise of this aspect of the argument that the costs are irrecoverable from Mr Sykes?

MR CORBETT:   Well, I have heard what my learned friend Ms Crockett says about it but I do not know what attempts have been made to execute or otherwise recover.

HIS HONOUR:   And why should I assume that that is so?

MR CORBETT:   Indeed, your Honour, I do not think your Honour should assume that they are irrecoverable.

HIS HONOUR:   Yes.  Now, Mr Sykes, there are two very distinct and separate questions;  one, whether I should make any order for costs at all.  There is then a second question;  if that goes one way rather than the other what I should so about fixing them.  Can we focus first on the first question only:  what should I do about the costs of the application, Mr Sykes?

MR SYKES:   Well, normally of course costs do follow a failure such of my own, but I would submit in this case it is very unusual and that should not be followed at all for the simple reason that it is family/family costs anyway.  Secondly, my aim of having this, although I have been unsuccessful, was to minimise the costs to my daughter's estate, which is already under severe battery from various groups, and so I would submit that order for costs is not appropriate in this case, although of course that might be rather hopeful I think.

As far as the practicality is the lump sum of course it makes things final and easy and if it was at a reasonable sum I cannot really see why I should object because otherwise we will be sitting before a taxing master at considerable expense to the community for perhaps no benefit.  So I would not be against an order of costs of some reasonable amount to be quantified now, and that means I would waive my rights for taxing, just in the convenience of trying to get the business of the court settled and done in a proper way.

HIS HONOUR:   Yes.  What do you say then about the two figures that have been advanced?

MR SYKES:   Well, obviously I would say they are grossly excessive.

HIS HONOUR:   Yes.

MR SYKES:   But then again that is the sort of question that a taxing master addresses.  So I am just a mature age allowance pensioner, that is all I have.  It is not quite correct to say that I am not - some costs have been awarded against me and have been taxed for the part 4 application of summons that I made and I was wrong, so I am paying those off at $280 a month and things like that.  So it is possible that these things might be paid, but on the other hand I am not opposing a lump sum by you, Justice Hayne, on the simple practicality that otherwise these things lead to argument forever and we never seem to finish one thing that we have started.

HIS HONOUR:   Yes.

MR SYKES:   So in that sense I agree with the submissions that have been made if costs are to be awarded against me, but as far as possible a very reasonable sum having regard to the taxation costs which would be otherwise thrown away.

HIS HONOUR:   Yes, Ms Crockett and Mr Corbett, both of you - I would ask why should I allow more than one set of costs?  Why should there be double representation?  I know there is not a Family Court for obvious and proper reason but in this court why should I allow more than one lump sum?

MS CROCKETT:   Well, for the simple reason in my submission, your Honour, that both of us are parties.  The child representative is a party, is formally a party before this court and not only has an entitlement but in my submission an obligation to appear in response to any application brought to this court.  It is perhaps a matter more appropriately addressed by my learned friend in any event but ‑ ‑ ‑ 

HIS HONOUR:   Yes.

MS CROCKETT:   It is certainly a matter that causes my client great difficulty whether to respond to applications like this, and there have been many of them, your Honour, at all, and it is just a difficult decision to be made, sir, but in my submission it is - as I say, there is not only the entitlement there is probably an obligation to appear on behalf of my client.

HIS HONOUR:   Yes.

MS CROCKETT:   If it please your Honour.

HIS HONOUR:   Mr Corbett, why more than one set?

MR CORBETT:   Your Honour, because the child representative - I will rephrase that.  Your Honour, as part of this application where it is not consented to needs to consider and has considered what is in the interests of both of the - all of the parties and the child representative's interests are indeed, in my submission, separate to the first respondents and they are separate in the Family Court and they are separate here as to what is the appropriate - whether it was appropriate to remove the case to this Court. 
The submissions made on behalf of the first respondent differed to those of the second respondent and your Honour was entitled to, and in my submission properly entitled to hear from both parties on the issues which concerned them regarding removal.  Mr Sykes joined and gave us both notice requiring us to attend and in my submission we were duty bound to both attend in light of what the notice of motion put forward in light of the interests which we both have which are in my submission distinct.

HIS HONOUR:   Yes.  Is there any reason why I should not consult the Deputy Registrar about the amount of the costs?

MR CORBETT:   No, your Honour.

HIS HONOUR:   Any party see why I should not?

MS CROCKETT:   No, your Honour.

HIS HONOUR:   Yes.  In my opinion the applicant should pay the costs of each of the respondents.  All parties have urged me to fix the costs at a lump sum.  It might properly be added that each party has been warned of the difficulties and dangers inherent in that course.  With the consent of the parties, having consulted the Deputy Registrar, who is the taxing officer, I propose to fix the costs of each party at the sum of $1250.  Accordingly the orders are:

(1)  Application dismissed.

1. Applicant pay each respondent's costs fixed in each case at the sum of $1250.

I certify for the attendance of counsel.

AT 10.17 AM THE MATTER WAS ADJOURNED
INDEFINITELY