SZFBO v MIMA & Anor

[2008] HCATrans 170

[2008] HCATrans 170

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S90 of 2006

B e t w e e n -

SZFBO

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 APRIL 2008, AT 2.01 PM

Copyright in the High Court of Australia

MR P. KULEVSKI:   May it please the Court, I appear for the applicant.  (instructed by Allens Arthur Robinson)

MR S.B. LLOYD:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor) 

GUMMOW J:   Yes, Mr Lloyd. 

MR LLOYD:   Can I indicate before my friend speaks that the Court will be aware that Justice Emmett considered that the decision was based upon three independent grounds.  One of those is a finding in relation to the right to reside and enter India.  My client does not seek to sustain the decision on the basis of that finding.  It is accepted that, not for the reasons that my friend has advanced, but it accepted that there is a flaw in relation to that matter.  But they do rely upon the  ‑ ‑ ‑

HEYDON J:   You rely on the other two grounds, but not that one?

MR LLOYD:   We rely upon the lack of the convention nexus.  We rely upon the finding that there is no genuine fear, but we do not rely upon the ‑ ‑ ‑

HEYDON J:   The availability of alternative location to India?

MR KULEVSKI:      Which, in short, we accept as probably affected by this Court’s decision and NAGV which came after this matter was decided. 

GUMMOW J:   Yes, Mr Kulevski.  That takes a bit of the wind out of your sails. 

MR KULEVSKI:   Your Honour, it is a bit like a registered concession, a bit like the registered lease in Tavinto Nominees v Vlattas, a concession without any content.  What is uncontroversial in these proceedings is that Justice Emmett was disposed to hold the Tribunal had breached section 424A of the Migration Act.  His Honour refused to follow his inclination and remit the matter on the basis that the tainted ‑ ‑ ‑

GUMMOW J:   Where do we see that?

MR KULEVSKI:   Paragraph 23 of his Honour’s judgment, your Honour. 

GUMMOW J:   He says, “there may be a basis for contending”. 

MR KULEVSKI:   Then, “I would be disposed to conclude”.

GUMMOW J:   Then he says there were three bases. 

MR KULEVSKI:   Yes, your Honour.  He says that the tainted reasoning, if I might call it that, was one of three independent lines of reasoning and that other two were sound.  What the applicant submits is that there were in truth only two lines of reasoning and both were affected by jurisdictional error and my learned friend has just conceded the second one, the section 363 issue.          Because, your Honour, what the applicant contends is, once the Tribunal accepted – as the respondent has conceded in paragraph 3(b) of their submissions – that the applicant’s father was murdered for leaving the Nepalese Maoists and that his brother may have been hospitalised because of his connection with the father, then the Tribunal, your Honour, we contend, deflected itself entirely ‑ ‑ ‑

GUMMOW J:   Just a minute.  Just take us back to the structure of Justice Emmett’s reasoning, because this is important. 

MR KULEVSKI:   Yes, your Honour.

GUMMOW J:   He says in the middle of page 54 paragraph 23 he “would be disposed to conclude that there was an error” connected to 424A. 

MR KULEVSKI:   Yes, your Honour. 

GUMMOW J:   I can put that to one side.  The he says, “One . . . not satisfied that the appellant has a genuine fear of persecution”.  Well, Mr Lloyd says that is still in play. 

MR KULEVSKI:   That is the 424A one, your Honour, because it is the return to Nepal information that was used as that basis.

GUMMOW J:   Yes, I see.  Then he says, 36(3), an alternate right to reside.  Well, that has gone.

MR KULEVSKI:   Yes.  But it would still be liable to be re‑agitated against my client if it is remitted which is why I wish to put some submissions on it, your Honour.

GUMMOW J:   Yes, all right.  So you say there is only two?

MR KULEVSKI:   There is only two and one of which is the 36(3) which has been conceded.  Your Honour, the reason why I say that there is no reason why the 36(3) issue cannot be decided is because the Tribunal, in the words of the Court in STCB, deflected itself entirely from the section 91S inquiry.  Your Honours, it is convenient to look at the facts of this case, the only evidence in the DIMIA application was that the father had been murdered and the brother had been hospitalised. 

The Tribunal were prepared to accept that that may have occurred in response to the applicant’s comment in the Tribunal that he had positively had documents that he could procure to prove those facts.  The Tribunal said they were willing to accept that the father was killed because he left the Maoist Party and the brother may have been hospitalised because of it.  What the applicant had said in his application, your Honours, is that his father had left the Maoist Party because the ideology and the future policy of the Maoist was not for the welfare of the general people of Nepal.

GUMMOW J:   That raises a practical question, does it not?  Can we be blind to the fact that if this matter was to be reconsidered it would now have to be reconsidered in the light of current political events of Nepal?

MR KULEVSKI:   Well, your Honour, even more of the fact, the current political events are, as your Honour is probably alerting to, the fact that the Maoists have received a majority of the parliamentary votes over there, and the reason why this section – I do not wish to raise his Honour Justice Heydon’s blood pressure by saying the High Court needs to give guidance on this, but the reason why the section 36(3) matter ‑ ‑ ‑

GUMMOW J:   No, I am just asking you, what is the practical result of all this?

MR KULEVSKI:   The practical result of that is that anyone who has any links with the Maoist Party, if they are sent back now, is in some strife, your Honour.

GUMMOW J:   Why?

MR KULEVSKI:   Because, your Honour, the Maoists now control all of the country, not 40 per cent of it.  That is why the 36(3) issue, which I will get to in a moment, your Honour, is important.  Your Honour, the political context of this was that he surrendered to the Nepalese Government for which he was generously pardoned by the Nepalese authorities for his past involvement with the Maoists.  There was no other evidence, and there was nothing else put to him by the Tribunal for any other reason. 

Then the Tribunal fastens on some concept of desertion simpliciter.  The political context, which is all they had from the independent country reports, was that the dispute between the Maoists and the government had caused an unprecedented level of political violence in Nepal.  That is at supplementary application book 70.  Secondly, that there were deliberate killings of people considered enemies of the revolution and it was a people’s war.  Most importantly, your Honour, the Maoist exercised a recruitment policy of one family, one member.  That was the undisputed independent country reports; that once one of you is in, you are all in, for all purposes.  So, one in, all in, so they must have been, your Honour, political traitors to the people’s war.  So this fastening on the concept of desertion does exactly what his Honour Justice Allsop said in SZHWI; is something that cannot be done. 

The Tribunal, of course, well, they said by the applicant’s own admission, his father was targeted because he deserted.  As his Honour Justice Allsop said, in a case where a Nepalese person was being extorted for money by the Maoists, he said it is an error if extorted for money is not taken to be a Convention reason if you do not consider the motives of the extortionists and their reason for selecting the victim for persecution.  There was no other evidence in this case, your Honours, other than this person, the applicant’s father, was hacked to death in the street because he had left the Maoists.

Why did he leave the Maoists?  There was no evidence that he did not like getting up early in the morning to train, that he did not like fighting per se because it was too tiring or because there was some personal animosity between him and the hierarchy of the Maoists entirely unrelated to political grounds.  We would submit, your Honour, that there could be nothing other than a reasonable fear of persecution in this case once the Tribunal were prepared to accept that the applicant’s father and the brother were being persecuted because of the actions taken by the applicant’s father. 

GUMMOW J:   Where was this point dealt with by the magistrate?

MR KULEVSKI:   Your Honour, this point was dealt with by the magistrate on page 29 of the application book.  He sets it out under heading (5), your Honour, but what I would point out there is that the magistrate has entirely forgotten to take the concession on the brother in and we say that that is very important.  Once the Tribunal accepted that the brother may have been attacked for the reasons of his father, then surely the applicant, as a member of the family – they have already shown vengeance on the family in the form of the brother – definitely has a reason to feel persecution. 

GUMMOW J:   What is the jurisdictional error as distinct from error within jurisdiction? 

MR KULEVSKI:   Well, your Honour, we say two things.  We say firstly that they were bound to find that once they had accepted that the father had been killed for deserting the Maoist Party and the brother had been hospitalised, they were bound to find that the applicant had a reasonable fear of persecution. 

HEYDON J:   Because of this one member, one family doctrine?

MR KULEVSKI:   Correct, your Honour.  What deflected them was their inability to ‑ ‑ ‑

HEYDON J:   It might be a stupid failure to draw an inference or something like that, but it is still factual, is it not?

MR KULEVSKI:   On one aspect it could be seen as factual, your Honour, but it would not be seen as factual if it was so unreasonable that they were bound to draw that.

HEYDON J:   I think you have to get Wednesbury unreasonableness, do you not?

MR KULEVSKI:   Yes, your Honour, there is no question.  But then, your Honour, there is the second point which is that the 424A issue comes into play here, which is that if part of the reason why they said that he did not have that reasonable fear of persecution is because of the return to Nepal information, the fact that he had returned to Nepal twice, he says, to assist his mother and his sister, then that is up for play again.  Your Honour, it is somewhat curious in the way the Tribunal dealt with this.  They did not really summarise the findings on the Nepal information in their oral findings particularly well.  I do not seek to take a Wu Shan Liang point on that.

GUMMOW J:   But the fact that he did go back to Nepal several times ‑ ‑ ‑

MR KULEVSKI:   Twice, your Honour.

GUMMOW J:   Twice – makes it a little more difficult, to put it that way, to attribute Wednesbury unreasonableness to the finding we have just been discussing, does it not?  You could not say it was made out of the air.

MR KULEVSKI:   Well, no, your Honour, it was not made out of the air, but in this sense we would say that the way it was dealt with is quite curious, if I might put it that way.  What his evidence was is that, “Yes, I went back, but I was compelled to go back”.  Now, the Tribunal’s reasons so much for filial bonds, your Honour, they say “Well, you said you were scared, but you went back to help your mother and your sister, you say”.  Now, your Honour, that would be equivalent to someone saying to a mother at Taronga Park Zoo, “Are you afraid of tigers?”, “Yes”, “No, we don’t believe you because 5 minutes ago we saw your toddler wander into the tiger enclosure and you went in to save it, so how could you possibly have a fear of tigers?”. 

For them to say that there could be no reasonable fear of persecution because he had gone back to Nepal when he said on his own evidence that he was compelled to go back to help his mother and his sister – the evidence is he was there for a very short time only – your Honour, I say is a live issue.  The particular on the 424A point you cannot say in terms of SZBYR that his case is so hopeless that it should not be remitted for this to be reconsidered.

Your Honour, the other issue, we say, in regard to 36(3) issue is, it may be very well for my friend to point out that there might be some jurisdictional error there, but it is a very live issue, your Honours, which we submit that this Court should decide and we raise that in the following way.  The delegate said in this case that the 36(3) issue was not even relevant to the inquiry.  Justice Emmett purported to apply it.  He said there is a right to enter and reside in India and so does the Tribunal. 

Federal Magistrate Smith has on very many judgments, including last year after the decision of this Court in NAGV, said that the Tribunal must find a legally enforceable right and the treaties between India and Nepal do not create that right.  Other differing standards are, there have been decisions this year of the Federal Magistrates Court that says that there is a risk of refoulement so as to fall within 36(5) if a Nepalese person goes to India, and that yet again other decisions last year of the Federal Magistrates Court say that there is a risk of persecution within 36(4) if a Nepalese person is sent back to India. 

Your Honours, what is happening at the moment is that equals are being treated unequally.  There are no relevant differences which justify the different legislative treatment of the people under subsection 36(3).  They are people with the same relevant characteristics that are being exposed to differing results.  That is the two facts, your Honours, as are contained in our written submissions; one, you are a Nepalese national, two, there exists this treaty.  Now, either this treaty is a source of rights for all Nepalese nationals to go to India or it is not a source of rights for any of them, particularly after this Court’s decision in NAGV.

HEYDON J:   Let me just get one thing straight.  The Tribunal did not deal with 36(3) and did not ‑ ‑ ‑

MR KULEVSKI:   No.  Justice Emmett purported to apply it though.

HEYDON J:   What about Federal Magistrate Nicholls?

MR KULEVSKI:   Not quite in that context.  He did deal with it, your Honour, but there is ‑ ‑ ‑

GUMMOW J:   One thing that is apparent is the federal magistrate dealt with Wednesbury unreasonableness, bottom of page 34, paragraph 12.

MR KULEVSKI:   Yes, your Honour, that is true.  But I take your Honour back to the original passage that I have raised which is the passage on paragraph ‑ ‑ ‑

GUMMOW J:   What I am putting to you is, that is the legal framework of reference.

MR KULEVSKI:   I understand that entirely.

GUMMOW J:   Unless the legal framework of reference was not comprehended properly, there is no special leave point.  We do not retry Wednesbury unreasonableness cases.  We would never be done.

MR KULEVSKI:   Your Honours, I appreciate that entirely, but what we say is that this is the exact converse of the STCB Case.  Your Honours took the STCB Case on the basis of the blood feuds between the Albanians in that case.  We say this is the exact opposite case.  How could possibly in this context – this case from Justice Emmett would almost stand for authority that you can take these situations as desertion simpliciter.  That it is an entire, we would respectfully say, failure to consider the motives for this man leaving the Nepalese Nationalist Party.  It is against this Court’s decision in Guo and against most of the authorities in this area that these things have a duality of character.

How can you consider this absent the motives, your Honours?  We say that in the interests of justice there is a fundamental error to be corrected here in that sense, but, more importantly, your Honours, we say that because of the matters your Honour Justice Gummow identified in respect of the change in political circumstances over there that this question of the right of Nepalese nationals to live in and enter and reside in India should be determined quickly, because what will happen then is a lot of these unrepresented litigants before the Minister, which is an inquisitorial process, all these people will be having different outcomes applied to them when they satisfy the same relevant characteristics. 

Your Honours, we would submit, not in a palm tree sense, that is not justice according to law.  But they are all having differing results; being told some of you do have the right to live in India and some of you do not.  There are no relevant differences amongst them.  Those are my submissions in‑chief, your Honours.

GUMMOW J:   Yes, Mr Lloyd?

MR LLOYD:    I will start by saying that your Honour asked about what to make of the fact that things may have changed in Nepal.  The Act provides a mechanism where there has been a change of circumstance for them to ask the Minister for permission to put in another application.

GUMMOW J:   What section is that?

MR LLOYD:    Section 48B of the Act.  So that is the mechanism for things where there are changes of circumstances after a protection visa application has been finally determined.  In relation to the structure of Justice Emmett’s decision, I note paragraph 27 is where his Honour notes that the third ground is the lack of Convention nexus.  I will take the Court to the Tribunal’s reasons shortly, but in a nutshell, it said first of all, “I don’t think there is a Convention nexus, but even if I am wrong about that, I don’t think that you have a genuine fear and also you can reside in India”.  So, they are the three bases. 

In relation to the Convention nexus basis, which starts at the bottom of page 13 and goes over to 14, it is clear that the Tribunal, in my submission, asked itself the correct legal question.  At the top of that page it acknowledges that desertion is not necessarily itself a Convention reason, but obviously that it could be.  It then makes the finding that on the evidence, it does not see such a connection.  So it is doing exactly what this Court said had to be done in STCB; look at whether or not there is a connection.  It finds, after referring to 91S, that the applicant’s father was killed because he deserted and the reason for the desertion, as such, was the purpose of it. 

Now that is in the context where the applicant himself had been asked at the hearing why he thought the Maoists would want him.  This is on page 6 at about point 5, and he said:

The Maoists normally kill the relatives of those who desert so that the deserters will not inform on them.

So, that shows that there is some evidence of a practice that people who desert or who betray the Maoists are not being persecuted because of their political reasons, but because they may be perceived as potentially disclosing information and so, as I have indicated in my submissions, another way that that could be looked at is, as it were, to have a fairly crude but still form of discipline upon Maoists that, “If you leave us, yourself and your family will be targeted”.  Now, those things would lead to persecution for reasons of the betrayal or the desertion but not necessarily for political reasons.  In my submission, the Tribunal asked itself the right question and it was a question of fact and it was open to the Tribunal on the evidence including the applicant’s own answers.

My friend said that there is some evidence about one – I am not sure whether he said one member, one family or one family, one member.  I was not prepared for this.  I am not even sure exactly where the reference is, but my understanding from the country information, having done a few Nepal cases, is that it is one member from one family; the idea being that the Maoists expect families in their area of control to donate one person to the cause.  It does not necessarily follow that the whole family is in, but the point is that you are meant to donate a member to the cause.  In any event, in my submission, that is just a matter of fact and does not go anywhere. 

In relation to my friend suggesting that this would be an appropriate case for the Court to provide guidance on section 36(3), in my submission, it is not for two reasons.  One is that the Tribunal does not in terms address section 36(3).  It does not make findings that are sufficient to meet all the requirements of section 36(3) and that is why under one of the cases my friends cites, SZHWI, Justice Allsop said that unless you make a finding that you have not taken all possible steps, then you do not engage section 36(3) in any event. 

At this time, 2004, prior to this Court’s decision in NAGV, no one relied upon section 36(3) because the old Federal Court Thiyagarajah test was an easier test to pass.  You did not need to do everything that 36(3) required and there is no reason to infer that this Tribunal asked itself the 36(3) question.  In fact, the finding on page 16, that the applicant does not satisfy 36(2) is also suggestive that it has not applied 36(3) because if you apply 36(3) you do not have to address 36(2).  The other thing I was going to say about that is that, my friend is right saying that in several other cases at least, which deal with Nepal, but they all turn on other facts and more evidence has been obtained since these early cases, more evidence beyond just the treaty.  So a case on the basis of the Treaty alone would not be a great deal of assistance because the newer cases have more evidence from the Department of Foreign Affairs and Trade and the like. 

The other matter is that Justice Emmett found that he might be disposed to find a breach of section 424A.  Those comments were made prior to this Court’s decision in SZBYR, which to some fairly significant degree, especially in this context, changed the landscape of section 424A.  His Honour’s view was premised upon SZEEU as noted by paragraph 22 of his reasons.  What the Tribunal did in this case was observe that from the applicant’s own claims he returned to Nepal twice in order to save his family, as my friend said, his mother and his sister. 

What this Court said in SZBYR is that 424A is not engaged unless the information would undermine or deny the person’s claims.  This is not information that would undermine his claims.  These were his claims.  They were just the claims he made in his protection visa application, rather than the claims he made orally and, in fact, he remade them orally to the hearing.  Which is another problem, because is would raise a question as to the applicability of 424A(3)(b), which is an exception to 424A in circumstances where somebody advances the information to the review itself.

HEYDON J:   Page 76 paragraph 16.  You, as it were, either deny or cast out on the factual proposition that the Tribunal found these matters out for itself and did not tell the applicant as distinct from the applicant telling the Tribunal and just leaving it there between them.  Am I understanding paragraph 16 correctly? 

MR LLOYD:   Paragraph 16, I think, deals with the fact that it is ‑ ‑ ‑

HEYDON J:   Is that not the 424A issue?

MR LLOYD:   That is. 

HEYDON J:   Movements from Nepal to Dubai and back again? 

MR LLOYD:   Yes. 

HEYDON J:   You say, you accepted information to that effect was contained within the material provided by the applicant to the delegate.

MR LLOYD:   That is right.

HEYDON J:   It is not clear on what basis Justice Emmett concluded that the applicant had not conveyed that information orally at the hearing.  In other words ‑ ‑ ‑

MR LLOYD:   Yes, the point being that there was not a transcript.  If it had have been conveyed at the hearing, then my client might be able to rely upon 424A(3)(b).

HEYDON J:   By the applicant.

MR LLOYD:   By the applicant.  We do not have a transcript, but we do have information, for example, on page 7.  There was a fair bit of discussion about him having left Dubai, and having – sorry, the bottom of page 6 – having left Nepal and gone to Dubai and then having gone back.  There is some further discussion about his trips to Dubai on page 9.  We do not have a transcript to know exactly what happened at the hearing.  But if he had

provided materially the same information at the hearing, then that would leave open to my client to rely upon that exemption in 424A(3)(b), which is why we say it is also not a good case to deal with the issue. 

My first point is, even apart from that, that this Court’s reasoning, which is dealt with in paragraph 19 of my submissions, page 77, in SZBYR was to the effect – in that case the Tribunal did something slightly different than in this case but there were inconsistencies between claims advanced in the protection visa application to claims advanced at the hearing.  There were inconsistencies in an allegation that 424A needed to be – that what the Tribunal had to do was put to the applicant back the claims he had made in his protection visa application.  This Court said, that is not right, because those things were advanced as part of his claims.  They did not undermine his claims, they were his claims.  You have to look at the information to see whether or not it undermines his claims.  In the same way, the relevant kind of information here is that in the supplementary book on page 18, in question 41, the third sentence:

Since my departure from Nepal I have returned to home twice.  Once in September 2002 while my only sister was abducted by the Maoist rebels and held up –

and he continues on.  The thrust of it is, he is making this as part of his claims.  The Minister’s submission is, on the basis of SZBYR, the Tribunal is not under obligation to put back to the applicant his own claims, which presumably he did not advance to undermine his own claims, even if obviously the Tribunal ‑ ‑ ‑

GUMMOW J:   Sent to his brother in Malaysia.

MR LLOYD:   Yes, your Honour, I think his brother is in Malaysia.  I think when he recovered is the claim.  So, in brief, in my submission, the Convention nexus point it turns on is a correct application of law and in assessing the assessment of a finding of fact on the evidence and is either not wrong but certainly not a jurisdictional error and if a jurisdictional error, certainly not a point of general importance.

In relation to the section 424A point, that Justice Emmett found, in my submission, the case law has moved on such that that point is not available, but even if something like that were available, it is not a proper vehicle because it may well be that the discussions at the hearing disclosed the same information.  There is no value, in my submission, in this Court taking the case in relation to the 36(3) point because my client will not seek to defend that decision on that basis.  So, the Court will not really get an opportunity to expound upon it.  May it please the Court.

MR KULEVSKI:   Your Honours, just briefly.  I will start with the 36(3) point since we finished with it.  My learned friend said, well, it does not all really matter because in these later cases now DFAT gets more information and some of these cases have more information.  Your Honour, we would submit that the exact point of discarding of the effective third party doctorate by this Court in NAGV is that either these people have a legally enforceable right to be in India, not because of what some DFAT officer says some people may have survived in India, but because they have some sort of duty being owed to them by the Indians to accept them into their country by dint of the fact that they are Nepalese nationals.

What this Court should, with respect, be avoiding is a situation where some of them get in and some of them are left out because DFAT says, well, in some cases yes, some cases no.  Either, now the protection obligations are owed by 36(2), except for when 36(3) is engaged, some scope needs to be given to what the right is in 36(3).  What is shown since the Courts decision in NAGV is that the Federal Magistrates Court authorities and the Tribunal is all at sea on this.  They are giving entirely differing results based on what happens to be happening on that particular day. 

Now, in relation to the 424A issue, your Honour, we of course say there is the pre‑existing fact which is, we say that once it was accepted that the father and the brother had been hospitalised, where was the Tribunal to be saying that the applicant did not suffer a reasonable fear of persecution?  They say by the applicant’s own admission his father deserted.  Is he being criticised for some infelicity of expression?  Could he have used a better word?  Because all that comes before it is why his father deserted, what the country information was, your Honours, and this is at supplementary application book page 71 halfway down the first column:

Recruitment of children by the Maoists has been reported on a regular basis.  Amnesty International was informed that in the areas under its control, the CPN (Maoist) exercise a recruitment policy of “one family, one member”.  Children, including girls, are deployed in combat situations, often to help provide ammunition or assist with evacuating or caring for the wounded.

HEYDON J:   It is a recruitment policy.  You recruit one soldier for every family.  It does not say you take revenge on the rest of the family if the one soldier ‑ ‑ ‑

MR KULEVSKI:   Your Honour, we would argue, why would you be taking the girls if there are adult boys?

GUMMOW J:   How can we possibly sought that out, Mr Kulevski?

MR KULEVSKI:   Well, I understand that, your Honours, but the rest of the country information indicated that these people were being targeted because it was a people’s war.  There was no doubt the independent country information said that this was political violence, entirely political violence.  This was not being done for any other reason.  It was purely political in nature and they had gone underground.  That was the country information.  The Maoists had gone underground and what they were afraid of was that enemies of the people’s war would turn them in to the authorities.  If that is not inherently political, your Honours, we are not quite sure what is.  May it please the Court.

GUMMOW J:   The Court sees no prospects of success on any argument which would need to found jurisdictional error upon a factual finding process vitiated in the Wednesbury unreasonableness sense.  Further, we think there are insufficient prospects of success on any argument based upon the construction and application of section 424A to warrant a grant of special leave.  There are no further reasons that would support a grant of special leave and special leave is refused with costs.

AT 2.36 PM THE MATTER WAS CONCLUDED