Orlov v New Zealand Law Society (Auckland Branch) (No 5) HC Auckland CIV 2010-404-2868

[2011] NZHC 1749

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-2868

BETWEEN  EVGENY ORLOV Applicant

ANDNEW ZEALAND LAW SOCIETY (AUCKLAND BRANCH)

First Respondent

ANDAUCKLAND STANDARDS COMMITTEE

Second Respondent

ANDAUCKLAND LAWYERS STANDARD COMMITTEE NO. 1

Third Respondent

ANDNATIONAL STANDARDS COMMITTEE Fourth Respondent

Hearing:         5 December 2011

Counsel:         E Orlov, in person, Plaintiff

P J Morgan QC for Defendants

Judgment:      7 December 2011

JUDGMENT (NO. 5) OF HEATH J

This judgment was delivered by me on 7 December 2011 at 4.00pm pursuant to Rule 11.5 of the High

Court Rules

Registrar/Deputy Registrar

Solicitors:

E Orlov, PO Box 8333, Auckland Glaister Ennor, PO Box 63, Auckland Counsel:

P J Morgan QC, PO Box 19021, Hamilton

W C Pyke, PO Box 19271, Hamilton

ORLOV V NEW ZEALAND LAW SOCIETY (AUCKLAND BRANCH) HC AK CIV 2010-404-2868 7

December 2011

The proceeding in outline

[1]      In  this  proceeding,  Mr  Orlov  seeks  judicial  review,  declaratory  relief  in respect of alleged breaches of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) and damages for misfeasance in public office.   The proceeding challenges decisions said to have been made by the New Zealand Law Society (Auckland Branch) (the Society) and three committees established by it, Auckland Standards Committee, Auckland Standards Committee No 1 and National Standards Committee (the Standards Committees).

[2]      At the heart of Mr Orlov’s claims are allegations that those bodies have engaged in a persistent pattern of conduct designed to destroy Mr Orlov’s career as a barrister.  Mr Orlov alleges that decisions to lay disciplinary charges before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) have been made in bad faith.  He asks the Court to quash the decisions in issue.  While that summary does not do justice to the lengthy pleading and alternative claims that are made, it provides an adequate introduction to the issues that arise.

[3]      The present proceeding has been set down for a hearing over eight days, commencing 27 February 2012.   On 5 December 2011, a case management conference was held.  Procedural rulings are required to ensure the trial is ready to proceed in February.

[4]      Mr Orlov accepts that the misfeasance cause of action cannot conveniently be dealt with at the same time as the judicial review proceeding.  That cause of action is better left to be determined in conjunction with separate proceedings brought against the New Zealand Law Society (Auckland Branch), for malicious prosecution.1    In those proceedings, Mr Orlov has sought trial before a jury.

[5]      Mr Orlov has particularised the bases on which he alleges that the Society and the Standards Committees have breached the Bill of Rights:2

1 Orlov v New Zealand Law Society HC Auckland, CIV 2010-404-5778.

2 Amended Statement of Claim, para 170.

(a)      [They] have treated [him] unfairly and with bias and/or in a discriminatory and disproportionate manner to other practitioners.

(b) [They] have consistently and recklessly or deliberately breached their own policies rules and regulations and the Lawyers and Conveyancers Act 2006 in relation to [him].

(c)       [They]   have   during  hearings  insulted   or  defamed   [him]   and committed other unlawful acts.

(d)       [They] have used their statutory powers for improper and unlawful purposes to harass and vex and cause harm to [him].

(e)       [They] have attacked, prosecuted or used their powers against [him] for  [his]  fearless  and  pro  bono  advocacy  of  human  rights  cases against the Crown in order to suppress or punish [him] for defending his clients.

(f)       [They] have taken [him] to the Tribunal for incompetence when they are aware that he is a competent Counsel that has conducted more matters in the Supreme Court than majority of senior Counsel and when they are aware that he is briefed regularly on human rights matters of extreme complexity.

[6]      Initially, Mr Orlov sought damages for the alleged breaches.   He has now abandoned that claim and, instead, seeks a declaration that the rights set out in ss 9,

14, 19 and 27 of the Bill of Rights have been breached.

The issues

[7]      There are five issues with which I deal in this judgment:

(a)       Should the judicial review and Bill of Rights claims be heard together at the February/March 2012 hearing?

(b)       Should the Bill of Rights claims proceed by way of formal proof?

(c)       Should  Mr  Orlov  be  permitted  to  call  witnesses  on  subpoena,  in support of his judicial review and/or Bill of Rights claims?

(d)      Should an order for discovery be made against the Society and the

Standards Committees?

(e)       Are  documents  currently  withheld  from  inspection  by  Mr  Orlov protected by claims of legal professional and public interest privilege?

[8]      A sixth issue is whether Mr Orlov, as a self-represented litigant who holds a practising certificate as  a Barrister,  is entitled  to seek  costs, if his claims were successful.  Based on the Court of Appeal’s decision in  Brownie Wills v Shrimpton,3

Mr Morgan QC, for the Society and the Standards Committees, accepts that such a jurisdiction exists.   I record that position.   It is (as Mr Orlov acknowledged) inappropriate to embark upon a consideration of whether costs should be ordered, in advance of trial.

Context

[9]      The five procedural points to which I have referred require determination against the need for the judicial review application to be determined promptly following the hearing in February and March 2012.  In the meantime, proceedings before the Tribunal have been adjourned, pending the outcome of that application to review.4    The prospect of a part-heard claim is unacceptable to all concerned and must (provided there is no prejudice to Mr Orlov) be avoided.

[10]     It follows that, if there were any risk that the judicial review proceeding could not be completed within the eight days allocated, steps need to be taken now to separate the judicial review claims from those brought under the Bill of Rights.

[11]     In considering severance, the jurisdiction of this Court to regulate the way in which evidence is given and discovery made, for the purpose of judicial review proceedings, is an important consideration.  Section 10 of the Judicature Amendment

Act 1972 provides:

3 Brownie Wills v Shrimpton [1998] 2 NZLR 320 (CA) at 327 (Gault and Blanchard JJ).

4 Auckland Standards Committees v Orlov [2011] NZLCDT 12 at para [8], set out in full in Orlov v

New Zealand Law Society (Auckland Branch) (Judgment No. 4) HC Auckland CIV 2010-404-2868,
30 August 2011 at para [2]. The Tribunal’s decision to adjourn was made on 15 April 2011 until 13

September 2011 but has been extended further to allow the judicial review claim to be determined first.

10       Powers of Judge to call conference and give directions

(1)       For  the  purpose  of  ensuring  that  any  application  or  intended application for review may be determined in a convenient and expeditious  manner,  and  that  all  matters  in  dispute  may  be effectively and completely determined, a Judge may at any time, either on the application of any party or intended party or without any such application, and on such terms as he thinks fit, direct the holding of a conference of parties or intended parties or their counsel presided over by a Judge.

(2)      At any such conference the Judge presiding may—

(a)      Settle the issues to be determined:

(b)       Direct what persons shall be cited, or need not be cited, as respondents to the application for review, or direct that the name of any party be added or struck out:

(c)      Direct what parties shall be served:

(d)       Direct  by  whom and  within  what  time  any  statement  of defence shall be filed:

(e)       Require  any  party  to  make   admissions  in  respect  of questions of fact; and, if that party refuses to make an admission in respect of any such question, that party shall be liable to bear the costs of proving that question, unless the Judge by whom the application for review is finally determined is satisfied that the party's refusal was reasonable in all the circumstances, and accordingly orders otherwise in respect of those costs:

(f)       Fix a time by which any affidavits or other documents shall be filed:

(g)       Fix a time and place for the hearing of the application for review:

(h)       Require further or better particulars of any facts, or of the grounds for relief, or of the relief sought, or of the grounds of defence, or of any other circumstances connected with the application for review:

(i)        Require  any  party  to  make  discovery  of  documents,  or permit any party to administer interrogatories:

(j)        In the case of an application for review of a decision made in the exercise of a statutory power of decision, determine whether the whole or any part of the record of the proceedings in which the decision was made should be filed in Court, and give such directions as he thinks fit as to its filing:

(k)       Exercise any powers of direction or appointment vested in the Court or a Judge by its rules of Court in respect of originating applications:

(l)       Give such consequential directions as may be necessary.

(3)       Notwithstanding any of the foregoing provisions of this section, a Judge may, at any time before the hearing of an application for review has been commenced, exercise any of the powers specified in subsection (2) of this section without holding a conference under subsection (1) of this section.

Should the judicial review and Bill of Rights Claims be heard together at the

February/March 2012 hearing?

[12]     There is jurisdiction for this Court to sever  the trial of causes of action pleaded in a single Statement of Claim.  Rule 10.4 of the High Court Rules provides:

10.4     Court may order separate trials

When justice requires, the court may order separate trials of causes of action and it may also direct the sequence of the separate trials and make any supplementary order that is just.

[13]     In Deliu v New Zealand Law Society,5  in remarkably similar circumstances, Peters J directed that judicial review claims be severed from those seeking (among other things) declaratory relief for alleged breaches of the Bill of Rights.   In that case, judicial review was sought in relation to decisions made by the Society, in the context of consideration of complaints.

[14]     After rehearsing the need for caution in separating out causes of action, Peters J concluded that the claims should be severed.  She said:

[28]      The  plaintiff  submits  that  consideration  of  many  of  the  criteria referred  to  in  the  [Turners  and  Growers  Ltd  v  Zespri  Group  Ltd  HC Auckland CIV 2009-404-4392, 5 May 2010 (White J)] list would lead to the defendant’s application being declined.  The plaintiff submits that there is an overlap  between  the  factual  allegations  underlying  the  applications  for review and those underlying the civil causes of action and, accordingly, separate trials are likely to create difficulties which would not otherwise exist.     These  difficulties  include  the  potential  for  overlapping  factual findings; that some witnesses are likely to have to give evidence twice; that the  proceedings  are  likely  to  require  more  of  the  parties’ and  Court’s

5 Deliu v New Zealand Law Society HC Auckland CIV 2010-404-6182, 4 November 2011.

resources if there are separate trials; and that the time taken to resolve the entire proceeding may be longer than if all matters are heard together.

[29]     I accept the submission that there is a factual overlap but I do not consider that the extent of that overlap is such that separate trials become unduly problematic.  To the extent that there is an overlap, it is possible the determination of the applications for review may assist the parties and the Court regarding the determination of the civil causes of action.

...

[31]      It is a matter of balancing the pros and cons of separate trials against the pros and cons if the matters are heard together.  I am satisfied that the interests of justice do require that I grant the defendant’s application.  That is because there is a good prospect of resolving the applications for review with expedition if they are tried separately to the civil causes of action.  Not only is that likely to serve to clarify the issues but it also has the advantage of allowing the investigations referred to above to be completed. There is no prospect of a prompt resolution if all causes of action are tried together, even if the plaintiff of his own volition were to reassess his pleading and confine it to the essentials and even if there were to be rigorous case management.

[15]     If the judicial review claim proceeded alone, there would be confined cross- examination.6    Undoubtedly, Mr Morgan is entitled to cross-examine Mr Orlov on any primary facts within his knowledge that were relevant to his allegations of bad faith on the part of the Society and the Standards Committees.   Similarly, to the extent possible, Mr Orlov is entitled to cross-examine the two witnesses to be called on behalf of the Society and the Standards Committees, Ms Ollivier and Mr Heyns.

[16]     I  qualify  the  extent  of  Mr  Orlov’s  ability  to  cross-examine  because  the Society and the Standards Committee have elected not to call evidence from anyone involved in the decision-making process.  Mr Orlov could not be criticised for failing to cross-examine witnesses who had no personal knowledge about the way in which particular decisions were made.  It may, however, be necessary for Mr Orlov to ask questions of those two witnesses to clarify the extent of their knowledge of such matters to determine the extent to which he may wish to cross-examine.

[17]     If  anything,  the  approach  adopted  by  the  Society  and  the  Standards

Committees assists Mr Orlov.   In the absence of evidence (oral or documentary)

contradicting primary evidence from Mr Orlov about bad faith considerations, the

6 See Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 (CA) at 656-658.

Society and the Standards Committees will be limited to challenging (by cross- examination or submission) his evaluation of events, and the inferences he seeks to draw from the way in which the events unfolded.  The Society will not be able to put into evidence documents in its possession or control that have not been discovered. And, in the absence of witnesses who can contradict primary facts on which Mr Orlov  has  given  evidence,  they  may  have  difficulty  (in  the  absence  of  any concessions  under  cross-examination)  in  rebutting  what  Mr  Orlov  has  said. However, that is the way in which the Society and the Standards Committee have chosen to run their case.  It is not for the Court to second-guess that tactical decision.

[18]     If the Bill of Rights proceeding were to be heard at the same time as the judicial review claims, the scope of evidence would be expanded significantly.   In particular, Mr Morgan would be entitled to cross-examine Mr Orlov extensively on issues arising out of the alleged breaches of ss 9, 14, 19 and 27 of the Bill of Rights. Further, Mr Orlov would have the right to call evidence on subpoena from witnesses who have not (or clearly would not) sign a written statement of evidence for that trial.  If Mr Orlov were to call all of the witnesses in respect of whom he has taken out subpoenas, the time allocated to complete the case is likely to be insufficient; in all likelihood, by a significant margin.

[19]     I err on the side of caution.  Subject to the direction I will make about Mr Orlov’s application to have his Bill of Rights claims determined by way of formal proof,7 I direct that trial of the Bill of Rights cause of action shall be heard separately from the judicial review proceedings.  All evidence provided in the proceeding to date (together with cross-examination at trial) will form part of the evidential base on which the Bill of Rights claim can later be determined, if necessary.

Should the Bill of Rights claims proceed by way of formal proof?

[20]     Mr Orlov has filed an application in which he seeks an order that the ―Bill of Rights claim/Judicial Review‖ be determined on an undefended basis. Alternatively, he seeks an order striking out the Statement of Defence.  In submissions, Mr Orlov

indicated that he was seeking a formal proof hearing.

7 See paras [20]–[22] below.

[21]     The application is opposed by the Society and the Standards Committees. They say that the state of the evidence is such that the proceeding must go to a trial at which all relevant witnesses can be cross-examined.

[22]     If there were time, after completion of the judicial review part of the hearing in February/March 2012, I am prepared to hear argument on this application to determine whether any orders of the type sought should be made.

Entitlement to call witnesses on subpoena

[23]     Mr Orlov seeks to call more than 10 witnesses on subpoena.  The subpoenas have been issued by the Registrar but (as a result of an earlier direction that I made) have not yet been served.  Although the Society and the Standards Committees have applied to set aside the subpoenas, Mr Orlov’s position is that any such application must be filed by the witness with a supporting affidavit.   He relies on Senior v

Holdsworth.8

[24]     Mr Morgan submitted that I did have jurisdiction to set aside the subpoenas, notwithstanding the lack of any application from the individual witnesses.  He relied on R v Golightly,9  in which Mahon J applied an English decision10  to hold that this Court had inherent jurisdiction to set aside a witness summons issued out of the Magistrate’s  Court.    In  that  case,  Mahon  J  held  that  the  jurisdiction  could  be exercised where the Court was satisfied that no admissible evidence in support of the summons could be given.11

[25]     Alternatively, if restricted to the judicial review claim, Mr Morgan submitted that I could decline to allow further oral evidence to be led, exercising jurisdiction

under s 10 of the Judicature Amendment Act 1972.12

8 Senior v Holdsworth [1975] 2 All ER 1009 (CA).

9 R v Golightly [1974] 2 NZLR 297 (SC).

10 R v Lewes Justices, ex parte Secretary of State for Home Department [1971] 2 All ER 1126 (DC) at

1132.

11 R v Golightly [1974] 2 NZLR 297, at 302.

12 Set out at para [11] above.

[26]     Judicial review proceedings are intended to be dealt with expeditiously and, generally, on the papers.   That is why leave is required for a witness to be cross- examined; and then only on issues on which disputed questions of fact need to be resolved – eg allegations of bad faith.  The basis for that practice was articulated by the  Court  of Appeal,  in  Minister  of  Energy  v  Petrocorp  Exploration  Ltd13   and confirmed  by  Roussel  Uclaf  Australia  Pty  Ltd  v  Pharmaceutical  Management Agency Ltd.14     The fact that such proceedings are usually dealt with by affidavit

explains the lack of any specific reference in s 10 to oral evidence.15

[27]     In my view, the subpoenas ought not to be served on the witnesses.   The Society and the Standards Committees have decided to run their case in a manner that is restricted to witnesses who have no specific involvement in the decision- making process and to documents disclosed to date.  For reasons given earlier,16 this situation enhances Mr Orlov’s position.   I consider that oral evidence in chief is unnecessary for the expeditious determination of the proceeding.  I consider that this

is the type of case in which the inherent jurisdiction of the Court to set aside a subpoena may properly be exercised.  The fact that the evidence is ―unnecessary‖ puts it into the same type of category as the inadmissible evidence to which Mahon J referred in Golightly.17

[28]     I add that my decision to set aside the subpoenas does not prevent an order being made at trial that an intended witness attend, if that proves necessary.   The ability to compel attendance at that stage is regarded as a safeguard for the party

seeking to call the witness.18

13 Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA) at 353.

14 Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 (CA) at 656-658.

15 See s 10(2)(f) of the Judicature Amendment Act 1972.

16 See para [17] above.

17 R v Golightly [1974] 2 NZLR 297, at 302; see para [24] above. See also s 8(1)(b) of the Evidence

Act 2006.

18 See R v Baines [1909] 1 KB 258 at 262, as applied in Rota v Tukiri [2001] 1 NZLR 715 (HC) at paras [31] and [32].

(a)      Further discovery

[29]     To  date,  limited  discovery  has  been  undertaken.     I  have  deferred  (as premature), on a number of occasions, Mr Orlov’s pleas for further discovery.  He cannot be criticised for not having sought disclosure of additional documents.

[30]     I have decided not to make an order for discovery because I consider that the Society should be limited in its production of documents to those made available to Mr Orlov for inspection to date, together with any documents that are currently the subject of claims for privilege which I order be produced.19   In that way, Mr Orlov’s position is protected and the need for further time and trouble to be spent in attempting to resolve contested questions of fact, as to what has and has not occurred is avoided.

(b)      Legal professional privilege

[31]     Mr Orlov sought a declaration that bad faith on the part of the Society and the Standards Committee, at least to the extent apparent from the pleadings and his affidavits, justified release of documents for which a legal professional privilege claim  had  been  made.   That  submission  appears to  be based  on  s 67(1) of the Evidence Act 2006.

[32]     I am not satisfied that the evidence reaches the appropriate standard, at this stage.   Mr Orlov’s request for documents for which legal professional privilege is claimed be released to him for inspection is declined.  The request may be renewed

during the hearing, if the evidence subsequently reaches the threshold level.

19 See paras [38] and [40] below.

[33]     Public interest privilege is a discrete basis on which discovery of documents might be resisted.  While claims for confidentiality are specifically addressed in s 69 of the Evidence Act, and ―matters of State‖ under s 70, it does not appear that the Evidence Act has attempted to codify all circumstances in which public interest privilege might be claimed.   In any event, that was the basis on which counsel addressed me.  In the time available, I have not researched that issue further.

[34]     Mr Morgan submitted to me a number of documents for which public interest privilege (or confidentiality) had been claimed and asked me to review those documents and determine whether the privilege was available.  In the context of the deliberative  functions  of  the  Standards  Committees,  I adopt  the  test  set  out  by Rodney Hansen J, in Air New Zealand Ltd v Commerce Commission:20

[32] ...   It is fundamental that, except in special circumstances, a tribunal cannot be required to disclose evidence of its deliberative process: ENZA Ltd v Apple and Pear Export Permits Committee [2001] 3 NZLR 456 (CA); Comalco New Zealand Ltd v Broadcasting Standards Authority [1995] 3

NZLR 469. A tribunal cannot be required to give evidence of its thinking processes. There is a public interest in preserving the privacy of what is done

in the deliberative stage by both Courts and tribunals. The public interest goes to preserving public confidence in such bodies and there is a real

danger of damaging misconceptions if disclosure occurs – ENZA at para [21]

and Comalco at p 473.

[33]   Among the special circumstances which may warrant departure from the general rule – where a greater public interest outweighs that of deliberative privacy – are cases where the deliberative process itself is attacked. An allegation of bias is an example: ... (my emphasis)

[35]     On the facts of the Air New Zealand case, Rodney Hansen J held the natural justice ground advanced for review did not justify access to evidence of the deliberative process.   His Honour observed that the Commerce Commission had fully disclosed changes made to the relevant model and the reasons for them.21

[36]     I have reviewed the documents provided to me by Mr Morgan.   One file represents the consideration and outcome of a complaint made by Mr Orlov against

20 Air New Zealand Ltd v Commerce Commission [2004] 3 NZLR 550 (HC) at paras [32]–[33].

21 Ibid, at para [33], see also ENZA Ltd v Apple and Pear Export Permits Committee [2001] 3 NZLR

456 (CA) at paras [22] and [24].

another practitioner.   A decision was made by the National Standards Committee. By letter dated 11 October 2010, the Secretary of that Committee sent the ―Notice of Decision‖ to Mr Orlov.

[37]     The   file   contains   documents   of   a   deliberative   nature,   as   well   as correspondence that was actually sent to Mr Orlov.   I consider that some of the documents are discloseable but others, which reflect communications among members of the Committee in relation to its deliberations, are not.  The nature of the particular allegations are insufficient to justify disclosure of the latter category of documents.  They will neither aid Mr Orlov’s case nor hinder that of the Society or Standards Committees.

[38]     In respect of documents 38–43 of the affidavit of Ms Ollivier of 13 May

2011, I direct disclosure of documents 39, 40, 41 and 42.  In my view, there is no valid claim for confidentiality in respect of those documents.

[39]     Mr Morgan has supplied to me separately other documents which have been withheld from inspection.  Having examined them, those documents, by and large, reflect aspects of the deliberative process and include draft letters which were never sent to recipients or other communications.   They are clearly protected by confidentiality attaching to them.  Virtually all of the documents provide nothing that would assist  Mr Orlov  to  advance his  own claim.    Nor would  they hinder the Society’s and Standards Committees’ defences.

[40]     My only concerns relate to document 128 of the affidavit of Ms Ollivier of 13

May 2011.  There is one item of correspondence that does not appear to be in draft. That is a letter from Mr Laubscher to Ms Ollivier of 7 September 2009, which responded to a complaint made against him by Mr Orlov.  I do not know whether that letter was ultimately sent to Mr Orlov.  In any event, that document should be disclosed.    Other than that, I uphold the claims to privilege on public interest/confidentiality grounds.

Result

[41]     I summarise the directions I have made:

(a)      The judicial  review claim  is  severed  from  the  Bill  of Rights  and misfeasance in public office causes of action.  The misfeasance claim shall  be heard  in  conjunction  with  Mr Orlov’s  separate malicious prosecution proceeding.22   The best course is for Mr Orlov to amend, at a suitable time, the Statement of Claim in the malicious prosecution claim to incorporate the allegation of misfeasance in public office.

(b)The Bill of Rights cause of action is deferred until completion of the judicial review proceeding.    The evidence given (oral and documentary) in the judicial review proceeding is to form part of the evidence, if the Bill of Rights cause of action proceeds to trial.

(c)      If  time  were  available  at  the  conclusion  of  the  judicial  review proceeding, I will hear Mr Orlov on his application to determine the Bill of Rights claim on an ―undefended basis‖.23

(d)The subpoenas issued by the Registrar in respect of the witnesses whom Mr Orlov seeks to call at the hearing of the judicial review proceeding24 are set aside.

(e)      I direct that the copies of documents to which I refer in paras [38] and [40] above shall be provided to Mr Orlov by the Society and the Standards Committees,25 on or before 14 December 2011.

[42]     I have resealed the envelope in which Mr Morgan provided me with the withheld  documents  for  inspection.  That  envelope  shall  be  returned,  by  the

22 See para [4] above.

23 See paras [20]–[22] above.
24 See paras [23]–[27] above.

25 See paras [38] and [40] above.

Registrar, to the solicitors for the Society and the Standards Committee, Glaister

Ennor.

[43]     All questions of costs are reserved, to be determined in conjunction with the judicial review proceeding.

[44]     I reiterate that procedural orders of the type I have made or declined to make may be revisited at the trial of the judicial review proceeding, if circumstances were

to change sufficiently to require reconsideration.

P R Heath J

Delivered at 4.00pm on 7 December 2011