WARWICK & ANOR & BARRE
[2017] FCCA 2258
•15 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WARWICK & ANOR & BARRE | [2017] FCCA 2258 |
| Catchwords: HELD – The de facto Wife has not impliedly waived legal professional privilege – the documents sought by the subpoena are not to be produced. |
| Legislation: Family Law Act 1975 (Cth), ss 44(6), 90SM, 117. |
| Cases cited: In the marriage of Whitford (1979) 24 ALR 424. Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 Mann v Carnell (1999) 201 CLR 1 Australian Agricultural Company Limited v AMP Life Limited [2006] FCA 371 |
| First Applicant: | MS WARWICK |
| Second Applicant: | CE FAMILY LAWYERS |
| Respondent: | MR BARRE |
| File Number: | MLC 11750 of 2011 |
| Judgment of: | Judge Bender |
| Hearing date: | 7 September 2017 |
| Date of Last Submission: | 7 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 15 September 2017 |
REPRESENTATION
| Counsel for the First Applicant: | Mr Trim |
| Solicitors for the First Applicant: | Farrell Family Law |
| Counsel for the Second Applicant: | Ms Libbis |
| Solicitors for the Second Applicant: | CE Family Lawyers |
| Counsel for the Respondent: | Mr Crozier-Durham |
| Solicitors for the Respondent: | LeBrun Glezakos |
ORDERS
The subpoena issued to CE Family Lawyers by the de facto Husband be set aside.
IT IS NOTED that publication of this judgment under the pseudonym Warwick & Anor & Barre is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 11750 of 2011
| MS WARWICK |
First Applicant
And
| CE FAMILY LAWYERS |
Second Applicant
And
| MR BARRE |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter comes before the Court by way of an urgent abridgment of two Notices of Objection filed with respect to a subpoena issued on behalf of the de facto Husband to the former solicitors for the de facto Wife, CE Family Lawyers.
The matter is next listed on 22 September 2017 for hearing of the de facto Wife’s application to issue proceedings out of time pursuant to section 44(6) of the Family Law Act 1975 (Cth) (“the Act”), for a property settlement between she and the de facto Husband pursuant to section 90SM of the Act.
For reasons that will become clear herein, and whilst not seeking to fully traverse the matters that will be of relevance in the de facto Wife’s application pursuant to section 44(6), it is necessary to briefly consider both the nature of the de facto Wife’s application and the factual and litigation background of the parties.
At paragraphs 23-25 of her affidavit filed on 10 February 2017 in support of her application for leave to proceed out of time, the de facto Wife provides an explanation for the delay in issuing property proceedings as follows:
“23. I did not pursue a just and equitable property settlement from the Respondent within two years of the date of separation because I was still suffering the effects of years of abuse at the hands of the Respondent and I therefore did not have the capacity to pursue a financial settlement from him. I was suffering adjustment disorder, anxiety and trauma in the two years since separation, as a result of the Respondent’s abuse and it is only now that I have gained the mental strength to pursue a settlement.
24. Further, during 2012 I was involved in Federal Circuit Court proceedings with the Respondent with respect to arrangements for [X] … I found these proceedings to be mentally and physically exhausting. Ultimately Orders were made by consent for [X] to live with me and that I have sole parental responsibility for her…
25. A combination of the many years of abuse at the hands of the Respondent and the mental and physical exhaustion I was experiencing following the children’s proceedings meant that I did not have the physical or emotional capacity to pursue financial proceedings against the Respondent.”
The de facto Husband opposes the de facto Wife’s application to issue proceedings out of time and in his Response filed on 10 April 2017 seeks that the application to proceed out of time be dismissed.
On 8 August 2017 the de facto Husband issued a subpoena to the de facto Wife’s former solicitors, CE Family Lawyers, seeking production of the following documents:
“…all files and records, including but not limited to:
a. file notes;
b. correspondence;
c. trust account records and ledgers; and
d. documents
of, and in relation to, Ms Warwick, born 1961.”
Both the de facto Wife and CE Family Lawyers have filed a Notice of Objection in relation to the subpoena on the ground that the documents sought are protected by legal professional privilege. The objections on behalf of the de facto Wife and CE Family Lawyers were listed together and heard on 7 September 2017.
Background
The parties commenced a de facto relationship in November 2003 and separated in April 2011. They have one daughter, [X] born 2 August 2004 (“[X]”).
Following the parties’ separation they commenced negotiations in relation to the future living arrangements for [X], as well as for two of the de facto Husband’s children from a previous relationship. At some point shortly after separation, though it is not entirely clear when, the parties also commenced negotiations with respect to a property settlement between them.
On 10 November 2011 the parties jointly signed a document titled “Financial Agreement”. That agreement provided for the de facto Husband to pay the de facto Wife the sum of $82,952.52 within two weeks and to transfer the parties’ (omitted car) into the de facto Wife’s name within the same period. The agreement also provided that the de facto Husband would be entitled to a 50% share of any amount paid to the de facto Wife for her medical negligence claim above the base figure of $50,000.
It is the de facto Husband’s evidence that at the time of the negotiations with respect to the property settlement and the signing of the “Financial Agreement”, the de facto Wife was represented by CE Family Lawyers.
It is the de facto Wife’s evidence that she had engaged CE Family Lawyers in relation to parenting matters only. In response to the de facto Husband’s assertion that she was represented during the property negotiations, the de facto Wife deposes at paragraph 2(d) of her affidavit sworn 18 April 2017 as follows:
“…I deny that I received any significant legal advice in respect of property matters and my entitlements in relation to a property settlement.”
It is the de facto Husband’s evidence that in negotiating their property settlement, correspondence was sent directly between he and CE Family Lawyers.
On 30 December 2011 the de facto Husband filed an Initiating Application in the Federal Circuit Court seeking parenting orders in relation to [X]. Those proceedings resolved by way of final consent orders made by then-Federal Magistrate Whelan on 10 October 2012.
Throughout the entirety of the parenting proceedings, the de facto Wife was represented by CE Family Lawyers. The de facto Husband was represented by Le Brun Glezakos from 9 January 2012 until the finalisation of those proceedings in October 2012.
It is common ground that the two-year period in which the parties could institute property proceedings pursuant to section 90SM of the Act lapsed in or around mid-2013.
On 16 February 2017 the de facto Wife filed her Initiating Application seeking leave to proceed out of time pursuant to section 44(6) of the Act.
At the first return date of the de facto Wife’s application, the preliminary issue of the section 44(6) application was listed to
22 September 2017 for hearing.Upon both the de facto Wife and CE Family Lawyers filing their objections to the de facto Husband’s subpoena, those objections were urgently abridged so that they could be determined together prior to the hearing of the 44(6) application.
The de facto Husband
It is the de facto Husband’s position that the subpoena issued to CE Family Lawyers should not be struck out and that the documents sought pursuant to that subpoena should be made available to the parties.
It is submitted on behalf of the de facto Husband that as part of her application seeking leave to proceed out of time pursuant to section 44(6) of the Act, the de facto Wife will be required to satisfy the Court that the discretion to grant leave should be exercised and that she will therefore need to provide an adequate explanation of the delay in seeking to institute proceedings.
It is submitted on behalf of the de facto Husband that in her affidavit material filed in support of her section 44(6) application, the de facto Wife has attempted to explain the delay in seeking to institute property proceedings by saying that she was not in a fit state of mind to pursue a property settlement in 2011/2012 and that she therefore did not instruct CE Family Lawyers to do so on her behalf.
It is further submitted that by seeking to raise in her affidavit material the state of her mental health as the basis for her failure to institute property proceedings within the permitted timeframe pursuant to the Act, the de facto Wife has brought into issue the nature and extent of her instructions to her previous solicitors, particularly given that she was actively engaging those solicitors at a time shortly after separation when parenting matters were being negotiated, when the parties jointly signed the “Financial Agreement” in November 2011 and when the time limit to institute property proceedings had not yet lapsed.
Counsel for the de facto Husband referred the Court to a number of authorities to support his submission. The crux of those authorities is that by bringing into issue the nature and extent of the instructions given to a legal representative, a party may in so doing, have acted in a way that is inconsistent with the maintenance of legal professional privilege attaching to those instructions, such that the continued suppression of documents relating to those instructions would be unfair to other parties in the matter. Those authorities are discussed further below.
The de facto Husband submits that in this matter, the involvement of the de facto Wife’s previous solicitors and the nature of the instructions and advice given and received at the time at which she was engaging them, have by cause of the Wife’s affidavit material, become relevant issues that will need to be determined at the hearing of the jurisdictional argument on 22 September 2017.
On that basis the de facto Husband submits that there has been an implied waiver by the de facto Wife of the legal professional privilege attaching to the documents sought in the subpoena issued by him to CE Family Lawyers on 8 August 2017.
The de facto Wife
In accordance with her Notice of Objection filed 18 August 2017, the de facto Wife opposes the production of documents from CE Family Lawyers on the basis that such documents are protected by legal professional privilege.
The de facto Wife denies having expressly or impliedly waived her right to legal professional privilege attaching to those documents.
In response to the assertion by the de facto Husband that she has impliedly waived legal professional privilege, the de facto Wife submits that she has not raised as an issue for determination the question of whether she gave instructions or received advice in relation to property matters in 2011/2012.
It is submitted on behalf of the de facto Wife that whilst Counsel for the de facto Husband at times characterised her explanation for the delay as being that she received no advice from her solicitors on property issues because of her state of mind, her evidence is more properly put as being that she did not receive significant advice regarding property matters and that in any event, she could not pursue property matters because she did not possess the mental strength to do so.
It is further submitted on behalf of the de facto Wife that the evidence of her emotional and mental health will be properly before the Court by way of an affidavit and report from Dr T, psychiatrist, and that her solicitor’s file is not relevant to the determination of this issue.
CE Family Lawyers
Ms Libbis, solicitor in the employ of CE Family Lawyers, appeared on behalf of her firm at the hearing of the objections to the subpoena on
7 September 2017.It is the position of CE Family Lawyers that the de facto Wife has not waived legal professional privilege and that the documents sought by the de facto Husband should not be disclosed to the parties in these proceedings.
Ms Libbis otherwise supported the submissions made by Counsel appearing on behalf of the de facto Wife.
Ms Libbis confirmed at the hearing of this matter that CE Family Lawyers would not be opposed to producing documents in their possession that have been filed with the Court as part of the parenting proceedings in 2012, as well as correspondence between the parties at and around that time when they represented the de facto Wife. It is noted however that almost all of this material will already be in the possession of the de facto Husband or his solicitors.
Finally, it was submitted by Ms Libbis that in the event the Court found that legal professional privilege had been waived by the de facto Wife, all relevant file notes prepared in connection with the de facto Wife ought to remain suppressed as they would disclose information that is privileged with respect to the practice of the firm.
The Law
Legal professional privilege is governed by Division 1 of Part 3.10 of the Evidence Act 1995 (Cth). However, as the matter to be determined by the Court at this time is interlocutory in nature, the Court must have regard to the common law position (Mann v Carnell (1999) 201 CLR 1; Commissioner of Taxation v Rio Tinto Ltd (2006) 229 ALR 304).
In Mann v Carnell (supra) the High Court consisting of Gleeson CJ, Gaurdon, Gummow and Callinan JJ said at paragraphs 28-29:
“28. At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that “waiver” is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of the confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client's version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer's evidence as to advice given to the client will be received.
29. Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is “imputed by operation of law”. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank, the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.”
The Federal Court consisting of Beaumont, Branson and Lehane JJ in the matter of Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 held at 166-167:
“Where, as in this case, a party pleads that he or she undertook certain action “in reliance on” a particular representation made by another, he or she opens up as an element of his or her cause of action, the issue of his or her state of mind at the time that he or she undertook such action. The court will be required to determine what was the factor, or what were factors, which influenced the mind of the party so as to induce him or her to act in that way. That is, the party puts in issue in the proceeding a matter which can not fairly be assessed without examination of relevant legal advice, if any, received by that party. In such circumstances, the party, by putting in contest the issue of his or her reliance, is to be taken as having consented to the use of relevant privileged material, or to put it another way, to have waived reliance on the privilege which such material would otherwise attract.”
Counsel appearing on behalf of the de facto Husband referred the Court to the decision of Le Poer Trench J in the matter of Macquarie Bank Limited and B & Anor (2006) FLC 93-290. In that decision his Honour states at paragraph 20:
“20. Whilst there continues to be some differences in the case law as to the correct approach to determine whether legal professional privilege has been waived it appears that there is a growing consensus that inconsistency of conduct as set out in Mann v Carnell should be the guiding principle, where necessary informed by considerations of fairness.”
His Honour undertook a comprehensive overview of the relevant authority on the approach taken on the question of implied waiver. At paragraph 38 his Honour refers to the decision of Cowdroy J in Australian Agricultural Company Limited v AMP Life Limited [2006] FCA 371 as follows:
“38. Cowdroy J then examines case law considering inconsistency of conduct and states:
33 The above authorities establish that the conduct of a party will be inconsistent with the maintenance of privilege if the nature and extent of legal advice has been raised, whether directly or by necessary implication, by that party as an issue in the proceedings. This will usually occur where a state of mind has been positively pleaded in circumstances where legal advice given would be specifically pertinent to the formation of that state of mind or where a party's understanding of their legal position is critical to their defence.”
Having summarised the relevant authority his Honour states at paragraph 50:
“50. It seems to me that a number of matters need to be clear before the Court would rule that implied waiver of legal professional privilege has occurred and require the disclosure of the documents normally the subject of legal professional privilege to the other parties. Some of these matters might be axiomatic and I apologise for that in advance, however, in this case I think they need to be spelled out.
(a) There must be an identified issue clearly requiring determination by the Court (i.e. an issue in proceedings before the Court).
(b) The evidence relied on by a party must have a relevant disclosure of communications which would normally be the subject of legal professional privilege.
(c) Waiver of legal professional privilege may arise as a result of a passage in a pleading or an affidavit, oral evidence in a hearing or through the contents of a document provided by one party to another whether as part of a formal discovery process or not.
(d) The disclosure of the communication may be made as part of the evidence in support of the case being relied upon by the party who is entitled to claim legal professional privilege in relation to that communication.
(e) The disclosure must be seen as relevant or potentially relevant to an issue to be determined by the Court.
(f) The disclosure must illustrate conduct which shows inconsistency between a party seeking to maintain legal professional privilege in relation to some communications pertaining to or touching upon an issue in the case but not others relating to the same issue. For a waiver to be found, the Court must determine that it would be unfair to a party to allow the inconsistency to stand.”
It follows from the authorities outlined above, that in order for the de facto Husband to succeed in his submission that the de facto Wife has impliedly waived legal professional privilege in this matter, and that the documents held by her former solicitors ought to be released, there must be demonstrated an example of conduct by her that is inconsistent with the maintenance of that privilege. That conduct must have bearing upon an issue to be determined in this case and it would need to be unfair to the de facto Husband if the documents remain suppressed.
Conclusion
In this matter the de facto Wife seeks leave of the Court to institute property proceedings out of time pursuant to section 44(6) of the Act. That application is listed for hearing on 22 September 2017.
The leading case which has been cited with approval in most section 44 leave applications since it was decided is In the marriage of Whitford (1979) 24 ALR 424. The Full Court held at 430:
“on an application for leave under s 44(3), two broad questions may arise for determination. The first of these is whether the court is satisfied that hardship would be caused to the applicant or a child of the marriage if leave were not granted. If the court is not so satisfied, that is the end of the matter. If the court is so satisfied, the second question arises. That is whether in the exercise of its discretion the court should grant or refuse leave to institute proceedings.”
With respect to the second of those questions to be determined, being the exercise of the Court’s discretion, the Full Court said at 432-433:
“The determination how this discretion should be exercised must depend on the facts of the particular case
…
such matters as the length of the delay, the reasons for the delay and prejudice occasioned to the respondent by reason of the delay, and the strength on the merits of the applicant's case, and the degree of the hardship which would be suffered unless leave were granted, are matters affecting the exercise of the discretion. These matters are not necessarily the only ones.”
It is submitted on behalf of the de facto Husband that the state of mind of the de facto Wife which has been raised by her in her affidavit material, touches upon one of the issues to be determined by this Court in the section 44(6) application, being the explanation for her delay in instituting property proceedings following the breakdown of the relationship.
It is submitted that by raising her state of mind and her consequent inability to provide instructions in relation to property proceedings to her solicitors during 2011/2012, the de facto Wife has made pertinent the nature and extent of those instructions and the legal advice that followed. It is submitted that she has therefore acted inconsistently with the maintenance of legal professional privilege over those communications and has, as a result, impliedly waived that privilege.
At the hearing of the objections to the subpoena, Counsel appearing on behalf of the de facto Husband summarised his argument as follows:
“The involvement of her solicitors goes to the … very issues that your Honour has to determine in this case, and in the exercise of the discretion that your Honour will exercise in the event that hardship is found. And, in those circumstances … the advice in relation to property settlement or not that was given by the applicant’s then solicitors is very … relevant and, for those reasons, the subpoena ought to be allowed to stand and the file be inspected.”
In her affidavit sworn on 10 February 2017 in support of her application for leave to proceed out of time, the de facto Wife sets out at paragraphs 23-25 her explanation for the delay in instituting proceedings. Those paragraphs are recounted at paragraph 4 of this judgment and need not be repeated here, save for the following passage:
“A combination of the many years of abuse at the hands of the Respondent and the mental and physical exhaustion I was experiencing following the children’s proceedings meant that I did not have the physical or emotional capacity to pursue financial proceedings against the Respondent.”
Whilst at times during the hearing of the objections to the subpoena, Counsel for the de facto Husband characterised the de facto Wife’s explanation for the delay as being that she was unable to provide any instructions, or at least any proper instructions, with respect to property matters because of her state of mind, it seems that a more accurate characterisation of the de facto Wife’s explanation in her affidavit material is that she simply did not have the energy or strength to pursue property proceedings through the Court.
Further, on the evidence that has been made available to the Court in these proceedings to date, it is clear that the parties did undertake some level of negotiations with respect to a property settlement, which resulted in their signing an “informal financial agreement” in November 2011.
At the hearing of the objections to the subpoena, Counsel for the de facto Wife confirmed that it was not his client’s evidence that she received no advice from her solicitors in relation to a property settlement whilst they represented her in relation to parenting matters, but rather that she did not receive significant advice.
For the purposes of determining what precise issue has been raised by the de facto Wife and the consequent relevance or otherwise of legal communications between she and her solicitors in 2011/2012, it is important to draw a distinction between the incapacity to provide proper instructions with respect to a property settlement, and the inability to pursue formal property proceedings with the Court.
When one examines the de facto Wife’s purported explanation for the delay in instituting property proceedings, it seems apparent that no matter what the content of the communications between she and her then-lawyers were, the de facto Wife says that she was simply not in a position to pursue property proceedings in a formal manner – with the necessary recourse to the Court – because on her evidence she did not have the mental, physical or emotional capacity to do so. It is submitted on behalf of the de facto Wife that the evidence in support of this contention will be contained in an affidavit from Dr T.
In the authorities referred to above the alleged inconsistent conduct was clearly reliant upon or directly related to the nature and extent of legal advice received, thus causing that very advice to become pertinent to the issue to be decided. In this matter there is nothing in the de facto Wife’s affidavit material filed to date that causes the nature and extent of any legal advice she received from CE Family Lawyers to impact upon her explanation for the delay in instituting proceedings. The de facto Wife does not depose, for example, that her lawyers did not discuss with her the possibility of issuing property proceedings or did not impress upon her that there was a limited time-frame in which to do so. In the event documents containing legal communications between the de facto Wife and CE Family Lawyers were released to these parties and confirmed that the solicitors did indeed give such advice, it would not touch upon the de facto Wife’s actual explanation for her delay and therefore upon the matters relevant to a section 44(6) application.
It is noted that Counsel appearing on behalf of the de facto Husband referred the Court to the matter of Stamp & Stamp (2007) FLC 93-314. That decision involved an application by the Wife pursuant to section 79A(1)(a) of the Act to set aside consent orders between the parties based on her mental disability. The Husband sought inspection of the Wife’s former solicitor’s file, which was refused by the trial judge. In allowing the Husband’s appeal of that refusal the Full Court of the Family Court held that:
“59. We respectfully cannot agree with the learned Judge who said that “the actual instructions given by her and the advice which received from her solicitors would not touch on the issue (of the impact on her state of health or her capacity to give instructions)”. It is true that medical evidence may be important, but it would be wrong to allow that evidence to be given, and then exclude the possibility of evidence showing the interaction between her and her solicitors.
60. The Wife has raised the issue about her capacity to provide proper instructions. That issue is inconsistent with the maintenance of her usual right to procedural legal privilege. She must be taken to have waived her right to that privilege. Accordingly, we are satisfied there was an error of principle and leave should be granted.”
Whilst it is true to say there are similarities between the present matter and that of Stamp (supra), there are substantial differences which make the latter case distinguishable from this one. In Stamp, by raising her mental disability as a ground on which she sought to set aside Court orders, the Wife explicitly brought about an enquiry into the nature and extent of legal advice which produced a clear and identifiable result. It was not open to the Court in those circumstances to address the Wife’s state of mental health as a ground under section 79A(1), whilst ignoring the process of her instructions and the subsequent advice which led to the making of the consent orders. For the Wife to succeed in her application there had to be some fundamental problem with the nature and extent of the instructions she gave to her solicitors and/or the advice that flowed therefrom.
In the present case, there is no question that needs to be answered around the capacity to provide proper instructions, as was the case in Stamp (supra). Rather, the question raised by the de facto Wife’s evidence is whether she was able to pursue property proceedings at all, given that she says she lacked the physical and emotional capacity to do so. The nature and extent of legal advice given to her by her solicitors cannot answer that question.
Further, if, as was at times seemingly put by Counsel appearing on behalf of the de facto Husband at the hearing on 7 September 2017, the question to be answered was whether the de facto Wife received any property-related advice whatsoever from CE Family Lawyers in 2011/2012, the pursuit of an answer to that question has been obviated by the evidence of both parties and the concessions made by the de facto Wife that she did not receive significant advice.
It follows that the de facto Wife, by asserting in her affidavit material as an explanation for the delay that she did not have the physical or emotional capacity to pursue financial proceedings against the de facto Husband, has not impliedly waived legal professional privilege attaching to communications between she and her lawyers. Her explanation does not raise directly or by necessary implication the nature and extent of the legal advice, as was required in Australian Agricultural Company Limited v AMP Life Limited (supra). Nor does the de facto Wife’s purported explanation for the delay result in that legal advice being specifically pertinent to the formation of her state of mind, or to her understanding of her legal position. The evidence of the de facto Wife as to her explanation for the delay is that no matter what advice was given to her by her previous solicitors, however salient, strong or forthright, she was simply not in a place to act upon any advice that she pursue property proceedings in 2011/2012.
In all these circumstances the subpoena issued by the de facto Husband to CE Family Lawyers will be set aside.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 15 September 2017
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