The Conciliation and Arbitration Act 1904 An Application by O'Brien, Philip Anthony for an Inquiry into an Election in the Administrative and Clerical Officers Association, Commonwealth Public Service A Reference...

[1979] FCA 144

IN THE FEDERAL COURT OF AUSTRALIA

Industrial Divlsion

No. 37 of 1979

In the matter of -

THE CONCILIATION AND ARBITRATION

ACT 1904

And in the matter of -

And in the matter of -

A REFERZNCE OF SUCH APPLICATm

BY THE IYDUSTRIAL REGISTRABX

THE FEDERAL COURT OF AUSTRALIA

Coram: SHEPPARD J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 11 DECEMBER 1979, AT 10.15 A.M.

(Continued from 10/12/79)

HIS HONOUR. Thls is t h e de te rmlna t lon of a p re l lmlnary

p o l n t r a l s e d by counsel f o r one Paul Munro t o t h e

j u r l s d l c t l o n of t h e c o u r t t o proceed wl th t h l s

l nqu l ry . The a p p l l c a t l o n l t s e l f i s one made

pursuant t o s e c t l o n 159 of t h e C o n c l l l a t l o n and

A r b l t r a t l o n A c t 1904. The a p p l l c a n t , P h l l l p Anthony

OIBr len , c la lms t h a t t h e r e has been an l r r e g u l a r l t y

I n o r i n connection wi th an e l e c t l o n f o r t h e o f f l c e

of f e d e r a l s e c r e t a r y of t h e Adminls t ra t lve and

C l e r l c a l O f f l c e r s Assoc l a t l on , Commonwealth P u b l l c

Serv lce . An e l e c t l o n f o r t h a t o f f l c e was h e l d

pursuant t o s e c t l o n 170 of t h e a c t on 2 3 March 1979.

M r Munro was t h e s u c c e s s f u l candidate.

Sec t lon 170 of t h e a c t p rov ldes f o r t h e

conduct , a t t h e r e q u e s t of an o rgan lza t lon o r a

branch t h e r e o f , of an e l e c t l o n by t h e I n d u s t r l a l

R e g l s t r a r o r a deputy l n d u s t r l a l registrar o r ano the r

o f f l c e r employed i n a registry. Alternatively t h e

I n d u s t r l a l R e g l s t r a r may make arrangements wi th t h e

ch l e f A u s t r a l l a n E l e c t o r a l O f f l c e r f o r t h e conduct

of t h e e l e c t l o n by an A u s t r a l i a n e l e c t o r a l o f f i c e r

o r one of t h e o t h e r c l a s s e s of person r e f e r r e d t o

I n s e c t l o n 1 7 0 ( 5 ) . The e l e c t l o n was conducted by

an A u s t r a l l a n e l e c t o r a l o f f l c e r .

The c la lm made by t h e a p p l l c a n t 1s n o t based

upon any complaint a s t o t h e manner i n whlch t h e

b a l l o t l t s e l f was conducted bu t i s founded upon

allegations t h a t t h e New South Wales branch of t h e

o rgan lza t lon unlawful ly provlded assistance t o

M r Munro i n suppor t of h l s campalgn t o be e l e c t e d .

Sec t lon 159(3) of t h e a c t p rov ldes :

Except a s provlded by sub-sect lon (41,

t h l s s e c t l o n does n o t apply t o o r i n

r e l a t l o n t o an e l e c t l o n conducted under

s e c t l o n 165A, an e l e c t l o n i n o r i n

connexlon wl th whlch a s t e p i s taken

under t h a t s e c t l o n o r an e l e c t l o n

conducted under s e c t l o n 170.

Sub-sectlon (4) s o f a r a s it i s m a t e r l a l and sub-

section (5) a r e a s fo l lows:

An a p p l l c a t l o n may be made under t h l s

s e c t l o n i n r e s p e c t of an e l e c t l o n conducted

under s e c t l o n one hundred and seventy of

t h l s Act i f t h e a p p l l c a t l o n i s made wl th ln

t h e t l m e t h a t is applicable under t h e nex t

succeedlng sub-sect lon and, where such an

a p p l l c a t l o n i s made -

( a ) t h e I n d u s t r l a l R e g l s t r a r s h a l l , not-

wl ths tandlng t h e nex t succeedlng s e c t l o n ,

forthwith r e f e r t h e a p p l l c a t l o n t o t h e

Court and thereupon an l n q u l r y s h a l l be

deemed t o have been instituted:

(b) the Court is not requlred to proceed

wlth an inqulry unless it is satlsfled

that there is reasonable ground for the

applicatlon;

An appllcatlon in accordance with the last

preceding sub-section may be made -

(a) before the completion of the electlon:

(b) withln the perlod of slx months

commencing on the date of completion

of the election: or

(C) after the explratlon of that perlod of slx months but before the explratlon of the perlod of offlce to whlch the

electlon related,

but the Court shall not proceed wlth the

hearlng of an Inquiry upon an appllcatlon

made in accordance with paragraph (c) of

thls sub-sectlon unless the Court is

satlsfled that the person maklng the

appllcatlon dld not have, withln the

perlod of slx months referred to in

paragraph (b) of thls sub-sectlon, and

could not, by reasonable diligence have

acqulred wlthln that perlod, knowledge

of, and the means of establlshlng, the

matters that are alleged to constltute

an irregularity.

Sub-sectlon (2) provides, so far as it is relevant:

An appllcatlon under thls sectlon shall -

(d) be accompanled by a statutory

declaration by the applicant declarlng

that the facts stated in the appllcatlon

are, to the best of the applicant's

knowledge and belle£, true.

The undisputed facts are that the appllcatlon ltself was lodged wlth the Industrial Registrar on 21 September 1979, that is two days before thc

explry of the perlod of SIX months provided for in

sectlon 159(5) (b). It was not accompanled by a

statutory declaratlon by Mr O'Erlen declarlng that

the facts stated in it were to the best of his

knowledge and bellef true. Such a declaratlon was

however lodged on 27 September 1979, more than

six months after the holding of the electlon.

It is the submission of counsel for Mr Kunro

that the court has no jurlsdlctlon to entertain the appllcatlon because Mr O'Brlen has falled to comply wlth the provlslons of sectlon 159(2) (d) which it

is clalmed are mandatory. It is the submlsslon of

counsel for b!r O'Brlen that the provlslons of

sectlon 159(2) have no appllcatlon because of the

provlslons of sectlon 159(3).

In my opinlon the submission of counsel for

Mr Munro should be upheld. The applicatlon

assumlng it to be one excepted from the operation

of the sectlon by sub-sectlon (3) 1s an appllca-

tion "under thls section". Those are the words

of sub-sectlon (4) whlch apply by reason of what

1s provlded for in sub-sectlon (3).

The appllcatlon being, on the hypothesis upon

whlch the matter has been argued, one made must be observed, lncludlng those of paragraph (d)

pursuant to the sectlon, its provlslons prescribe

the manner and form in whlch it must be made.

earller set out. It is common ground that they

were not observed. There was no submlsslon that

its provlslons were not mandatory, nor could

that submlsslon have been successfully made in

the light of the declslon of the High Court int'ne

Klng v. Commonwealth Court of Conclllatlon and

Arbltratlon ex parte Federated Clerks Union of

Australia, 81 CLR 229. I referpctlcularly to what

was sald at page 243. I also refer to the declslon of the Hlgh Court in the Klng v. Commonwealth Court of Concillatlon and Arbltratlon ex parte Grant,

81 CLR 27, particularly at pages 49 to 51.

In the development of hls argument counsel

for Mr O'Brlen submitted that there was a reason

why in the case of an electlon conducted under the

provlslons of sectlon 170 the legislature would

not have considered it necessary to require the

verlflcatlon of an appllcatlon by a statutorl-

declaration.

That was sald to be so because sub-sectlon (4)

requlred the Industrlal Reglstrar to refer the

applicatlon to the Court. In contrast the

provlslons of sectlon 160 whlch applled in the case

of elections conducted by an organlzatlon ltself -

that is a case to which sectlon 170 dld not apply -

vested the Industrlal Reglstrar wlth jurlsdlctlon

to decide whether or not to grant the applicatlon

and, in the event of it belng granted, to refer

the matter to the court.

In a case such as thls there was no dlscretlon:

the Reglstrar was bound to refer it. There was

thus no polnt in requiring the applicatlon to be

verlfled. Once the matter was referred to the

Court the provlslons of regulation 53 would apply.

Relevantly it would require the applicatlon to be

supported by an a f f l d a v l t of a f f l r m a t l o n . No

such a f f l d a v l t has been f l l e d bu t r e g u l a t l o n 155

enabled t h e c o u r t t o exempt t h e a p p l l c a n t from

t h a t requlrement, perhaps conditionally upon t h e

a p p l l c a n t now f l l l n g t h e requisite a f f l 6 a v l t .

I have taken t h e ma t t e r s s o r e l i e d upon by

counsel f o r t h e a p p l l c a n t I n t o account. The

f l r s t t h l n g t o be s a l d is t h a t they do n o t i n my

opinlon overcome t h e p rov l s lons of t h e va r lous

sub-sec t lons of s e c t l o n 159 t o whlch I have

r e f e r r e d . The l r meanlng is i n my oplnlon c l e a r .

Secondly, t h e reason why s e c t l o n 159(4)

provldes f o r t h e mandatory r e f e r r a l by t h e

R e g l s t r a r t o t h e c o u r t of an a p p l l c a t l o n f o r an

l n q u l r y I n t o an e l e c t l o n conducted pursuant t o

s e c t l o n 170 i s t h a t such an e l e c t l o n may be

he ld by t h e R e g l s t r a r hlmself o r by a person

a s s o c l a t e d wl th hlm. I t seems t h a t t h e l e g l s -

l a t u r e thought t h a t it was undes i r ab l e t h a t an

a p p l l c a t l o n whlch Involved an e l e c t l o n conducted

by t h e R e g l s t r a r o r one of t h e o t h e r c l a s s e s of

persons a s s o c l a t e d wl th hlm mentioned i n t h e

s e c t i o n should be	passed	upon	by	t h e R e g l s t r a r
h lmse l f .

I f he r e fused t h e a p p l l c a t l o n it mlght be

thought t h a t he would be exposed t o charges ,

unwarranted though they mlght be , of b l a s . It

would be a case perhaps of j u s t l c e n o t appearing

t o be done. I t mat tered no t t h e r e f o r e whether t h e

ma t t e r was t o be d e a l t w l th i n t h e f l r s t l n s t a n c e by

t h e R e g l s t r a r under s e c t l o n 160 o r was r equ l r ed t o

be r e f e r r e d t o t h e c o u r t pursuant t o s e c t l o n 1 5 9 ( 4 ) .

V e r l f l c a t l o n was r equ l r ed and i t had t o be

by way of s t a t u t o r y d e c l a r a t l o n which accompanled

t h e a p p l i c a t l o n . U n t l l such a d e c l a r a t l o n was

lodged t h e a p p l i c a t l o n was no t p roper ly be fo re t h e

R e g l s t r a r . The f a c t t h a t r e g u l a t l o n 53 provldes

f o r an a f f l d a v l t of a f f l r m a t l o n is of no re levance .

The legislature has made c l e a r t h a t a l l app l l ca -

t i o n s under s e c t l o n 159 a r e t o be accompanled by a

s t a t u t o r y d e c l a r a t l o n verifying t h e application.

I t fo l lows t h a t t h e pre l lmlnary o b ~ e c t l o n

taken by counsel f o r M r Munro should be upheld.

To some t h l s may seem a r a t h e r technical approach

bu t l l m l t a t l o n p rov l s lons of t h e k lnd here provlded

f o r a r e common i n many A c t s of Parliament. There

1s a p u b l l c l n t e r e s t i n l l m l t l n g t h e tlme wl th ln

whlch d l s p u t e s may be brought be fo re cou r t s . That

must be particularly s o i n t h e case of an e l e c t l o n

t o an o f f l c e . A pe r lod of SIX months is allowed

and t h e p rov l s lons of s e c t l o n 159(5) ( c ) a r e such

a s t o a l low f u r t h e r t lme i f t h e circumstances

t h e r e provlded f o r do e x l s t . P l a l n l y , they do n o t

In this case. Counsel for the applicant expressly said that his client was not in a positlon to lead evidence to show that he was wlthln the terms of

that provision.

What is the order you ask for, Mr Madgklck?

MR MADGWICK: We ask for an order that the court decllned to

proceed further wlth the matter under - I was

thinklng of 5(c) really, your Honour, because we

submitted that this was an appllcatlon under 5(c)

as to whlch the court could not proceed. Also

we ask your Honour to expressly flnd that your

Honour is not satisfled that there is reasonable

ground for the appl~catlon	in that there is not
a valid application - - -

HIS HONOUR: Where are you reading from?

MR MADGWICK: 4(b), your Honour.

HIS HONOUR: What is wrong with me slmply dismlsslng the

application?

MR PVDGWICK: I think if your Honour were to dlsmiss the

proceedings, that would technically be better.

HIS HONOUR: That is what it amounts to.

PllR MADGWICK: Yes.

HIS HONOUR: Because although there may be no ~urlsdlctlon,

the matter is expressly referred to the court.

In other words, the court has to look at it.

MR YADGWICK: It would be appropriate if your Honour

dlsrnissed the appllcatlon, because there is an

appllcatlon.

HIS HONOUR: That is what I had in mlnd dolng. What do you

say, Mr Lamprati?

MR LAMPRATI: As your Honour says, it is a difficult matter.

Perhaps the appropriate or6er in disposing of the

application mlght be merely to dlsmiss it. In

the circumstances I would not oppose that. There

1s a further matter, namely the questlon of

sectlon 168.

(continued on page 34)

MR MADGWICK: There 1s a ma t t e r t h a t a r l s e s t h a t I would l i k e

t o r a l s e b e f o r e your Honour d e a l s w l th t h e app l l c -

a t i o n under s e c t l o n 168 by t h e a p p l l c a n t .

HIS HONOUR: What i s t h a t ?

MR MADGWICK: That has t o do wl th your Honour g l v l n g a

c e r t l f l c a t e i n e f f e c t t h a t t h e a p p l l c a n t a c t e d r ea s -

onably whlch may a s s l s t i n t h e l e g a l a l d a p p l l c a t l o n ,

and I would want t o seek c o s t s .

HIS HONOUR: Let me j u s t unders tand t h l s . You both ag ree t h a t

t h e appropriate o rde r f o r me t o make 1s t h a t t h e

a p p l l c a t l o n be dlsmlssed?

MR MADGWICK: Yes.

MR LAMPRATI: Y e s .

HIS HONOUR: Then it becomes a q u e s t l o n of c o s t s ?

MR MADGWICK: Y e s .

HIS HONOUR: I w i l l make t h e o rde r t h a t t h e a p p l l c a t l o n be

dlsmlssed. You asked f o r c o s t s a g a l n s t - - -

MR MADGWICK: I asked f o r c o s t s a g a l n s t t h e a p p l l c a n t .

HIS HONOUR: What i s t h e normal r u l e h e r e i n r e l a t l o n t o

c o s t s ? Do they normally fo l low - - -

MR MADGWICK: The p o s l t l o n i s n o t s t r a l g h t f o r w a r d . Your

Honour has a power under s e c t l o n 168(5 ) t o award

c o s t s . I t says :

Nothlng i n t h l s s e c t l o n s h a l l l l m l t

t h e power of t h e c o u r t . . . . . .

. ~n o r i n connection wlth

an i n q u l r y -

The foregolnq p a r t of s e c t l o n 168 i s concerned wl th

s t e p s t h a t a r e lnvolved i n t h e Attorney General

lndernnlfylng p a r t l e s . Your Honour a l s o would have

power, I n my submlsslon, i f f o r any reason s e c t l o n

168(5) 1s n o t a p p l i c a b l e , c o n t r a r y t o my submlsslon,

under s e c t l o n 116 of t h e a c t whlch says :

Sub jec t t o s e c t l o n 197A under t h e

regulations. . . . . . . . . . dismissed

f o r want of j u r l s d l c t l o n .

There 1s noth lng of r e l evance , I t h i n k . I n t h e

r e g u l a t l o n s bu t s e c t l o n 197A would govern bo th

s e c t l o n 168(5) and a l s o s e c t l o n 116, and it says :

So f a r a s m a t e r l a l a p a r t y t o a proceeding

. . . . . . . . . . l n s t l t u t e d t h e proc-

eedlngs vexatiously	o r wl thout reasonable
cause .

NB/VMD/la 3 4 bLR LAMPRATI 11/12/79

0' Brien

It is our submlsslon that the proceedlng in the clrcumstances - the appllcatlon - was instlt- uted without reasonable cause because it was

lnstltuted in fact under paragraph (c) of sectlon

159(5), and my learned frlend very properly told

the court that there was no suggestion that reas-

onable diligence could not have got the matter

right.

HIS HONOUR: I do not think he would really agree with you.

He would say he brought it wlthln the slx months and he has lost an argument about it.

MR MADGWICK:

If he has lost an argument the effect stlll is

that in the result he was outslde the llmltatlon

period, and thls was not a llmltatlon period whlch

it was wlthln the power of the court or of any other

party, being in the position of a defendant, to

walve and, In our submission, there could be no

clearer case of the proceedlng belng brought wlthout

reasonable cause.

The cases say, and the terms of the two sections,

sectlon 116 and sectlon 168(5) wlth respect to those

courts who decide the matter obviously make it clear,

that under each the court has a discretlon as to costs,

and we would submlt afflrmatlvely that the matters to

which your Honour referred at the very end of the

judgment are relevant to the question of tkcourt's

discretion, and Insofar as the nature of the sub-

stantive matters - the matters golng to merlt - of

the appllcatlon are concerned, we would just wlsh to

say in relatlon to discretlon that, first of all,

allegations of lmproprlety or lnfractlon of the

rules of the unlon, the organlsatlon, are strenuously

denled, and that in particular ltems sald to have

been pald for out of unlon funds were not so pald

at all.

HIS HONOUR: Mr Madplck, I cannot go Into the merlts of it.

MR MADGWICK:

I know, your Honour, but I want your Honour to

know the case that my client would have made because

~t may be sald it is relevant in respect of your

Honour's discretlon.

HIS HONOUR:

It seems to me the question I have to declde is

whether in the clrcumstances, by not flling his

declaration or lodging it out of time, he instituted

the proceedlng vexatiously and wlthout reasonable

cause.

MR MADGWICK: I do not suggest ~exatlously. I do say without

reasonable cause. He chose, for whatever reasons,

to leave it very late and then, finally, to have to

rely. I£ at all, upon the allegation that wlth reasonable

dlllgence he could not have done it sooner. That is

just not the position, as frankly conceded, and in

those clrcumstances havlng regard to the public Interest

MR LAMPRATI 11/12/79

I n t h e s e m a t t e r s being brought on qu ick ly w e

would submit t h a t it is a c l e a r c a s e where t h e

proceedings	w e r e l n s t l t u t e d wl thout	reasonable
cause .

HIS HONOUR: What do you say, M r Larnpratl?

MR LAMPRATI: Your Honour, w e oppose t h e submlsslons whlch have

been made by my l ea rned f r i e n d . Your Honour asked

a t t h e o u t s e t what i s t h e gene ra l practice. I mlght

say. your Honour, t h a t I do n o t know of any case , particularly s i n c e s e c t l o n 197A has been enac ted ,

where a p a r t y has been ordered t o pay c o s t s .

HIS HONOUR: I have r ead a couple of r e c e n t judgments of Sweeney

J and t h e r e i s no r e f e r e n c e t o c o s t s i n e l t h e r o f

those . I do n o t know whether application was made

a f t e r d e l i v e r y of t h e judgment.

MR LAMPRATI: I b e l l e v e I am c o r r e c t i n say ing t h a t t h e

normal cou r se i s t h a t t h e c o s t s l l e where t hey f a l l .

HIS HONOUR: I n one of t h e c a s e s h i s Honour f o u d w h a t I rnlght

d e s c r i b e a s a f a i r l y b l a t a n t breach of t h e under-

s t and lnq t h a t union funds mlght be expended f o r t h i s

purpose, bu t t h e r e does n o t appear t o have been any

o rde r f o r c o s t s .

MR LAMPRATI: No, normal procedure. your Honour. I n my submlsslon it i s n o t t h e

My l ea rned f r l e n d has r e f e r r e d t o

s e c t l o n 116 and t h a t s e c t l o n makes q u l t e c l e a r t h a t

what is i n t h a t s e c t l o n 1s s u b j e c t t o s e c t l o n 179A.

whlch	says:
A p a r t y - - -

You have r ead t h e s e c t l o n , your Honour?

HIS HONOUR: Yes. I do n o t wlsh t o h e a r any more, M r Larnpratl.

Do you wish t o make any s e p a r a t e a p p l l c a t l o n under

s e c t l o n 168?

MR LAMPRATI: I do. your Honour, t h e r e l e v a n t p a r t of s e c t l o n

168 belng:

Where upon an l n q u l r y a c o u r t

does n o t f l n d any irregularity . .

. . . . . . . . ~n s o applylng - - -

HIS HONOUR: I am s o r r y , I am a g a i n s t you on t h a t . 1 could n o t

hold t h a t you a c t e d reasonably i n t h e l l g h t of t h e

judgment I have j u s t delivered. I t seems t o me t h a t

M r Madwick has t o establish you a c t e d wl thout r e a s - onable cause under s e c t l o n 197A and you have t o show you a c t e d reasonably, and I would have thought my

own judgment was a nega t ion of t h a t s l t u a t l o n .

MR LAMPRATI: I n a s ense t h a t p u t s me i n a difficult s i t u a t i o n .

I am n o t aware of whether your Honour i s referring t o

t h e m e r l t s - - -

NB/VMD/3a 3 6 MR LAMPRATI 11/12/79

0' Brien

HIS HONOUR: I cannot r e f e r t o t h e m e r l t s . I know noth lng

about them. I am simply t a l k i n g about t k f a c t

t h a t you f l l e d an a p p l i c a t i o n which was n o t competent

because i t was n o t accompanied by t h e declaration.

MR LAMPRATI: Yes.

HIS HONOUR: I would t h l n k r e a l l y what t h e l e g i s l a t u r e had i n

mind i n sub-sect lon (2) would be t h e j udge ' s view

of t h e m e r l t s i n r e l a t l o n t o t h e subs tance of t h e

mat te r . and t h a t i s a ma t t e r l n t o whlch I have n o t

gone. I know noth lng about it.

MR LAMPRATI: Very w e l l , your Honour. I would ask your Honour,

i n maklng any r u l l n g on t h e question, i f your Honour

p l ea ses , t o i n d i c a t e t h a t your Honour would n o t be

r e f u s l n g t o c e r t l f y m e r l t s of a cons lde ra t lon by t h e

c o u r t on t h e meri ts of t h e mat te r .

HIS HONOUR: I f you want me t o s a y t h a t I w l l 1 , b u t it must be

c l e a r t h a t I simply know noth ing about t h e ma t t e r . I

have r ead t h e documents accompanying t h e a p p l l c a t l o n

bu t I could n o t p o s s l b l y express a vlew on t h e mer l t s .

The ma t t e r has n o t been be fo re m e .

MR LAMPRATI: Very w e l l , your Honour.

HIS HONOUR: M r Munro, having been s u c c e s s f u l , has a p p l l e d f o r

c o s t s . There i s j ~ r l s d l ~ t i ~ n t o award c o s t s bu t t h a t

j u r l S d l ~ t l o n i s Sub jec t t o t h e ope ra t lon of s e c t l o n

197A of t h e a c t . Re levant ly , t h e p rov l s lons of t h a t

s e c t l o n a r e t h a t a p a r t y s h a l l n o t be ordered t o pay

any c o s t s i ncu r r ed by any o t h e r p a r t y except where

t h e p a r t y a g a l n s t whom t h e o rde r is made l n s t l t u t e d

t h e proceedings	vexa t lous ly	o r wl thout	reasonable
cause.

Counsel does n o t r e l y upon t h e proceedlngs havlng

been l n s t l t u t e d vexa t lous ly bu t does say , i n t h e l l g h t

of my f i n d i n g s , t h a t t h e proceedings were l n s t l t u t e d

wl thout reasonable cause . I have glven t h a t ma t t e r

c o n s l d e r a t l o n b u t I t h l n k t h a t t h e problem d e a l t wl th

by me i n my judgment was n o t s t r a l a h t f o r w a r d and I am

n o t s a t i s f l e d t h a t t h e proceedlngs w e r e instituted

wi thout reasonable cause . I t h e r e f o r e make no o rde r

a s t o t h e c o s t s of M r Munro.

Counsel f o r t h e applicant has sought a certificate

pursuant t o s e c t l o n 168(2) of t h e a c t t h a t would Involve

m e certifying t h a t M r O'Brlen a c t e d reasonably i n t h e

circumstances. I am n o t prepared s o t o c e r t l f y because

of t h e l a t e n e s s wi th which h i s a p p l l c a t l o n was made

and t h e f a c t t h a t I have found it was incompetent i n n o t havlng been accompanied by t h e requisite d e c l a r -

a t l o n s . I t h e r e f o r e d e c l i n e t o c e r t l f y pursuant t o

s e c t i o n 168(2) of t h e a c t . Is t h e r e any o t h e r ma t t e r ?

I f n o t , t h e c o u r t w l l l ad journ .

AT 10.43 A.M. THE MATTER WAS ADJOURNED

INDEFINITELY

3 7 MR LAMPRATI 11/12/79