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[2012] TASSC 42
General information, not legal advice.
Supreme Court of Tasmania
2012-07-02
Wood J, Holt J
Original judgment source is linked above.
R v Registrar of the Magistrates Court of Tasmania at Burnie
REGISTRAR OF THE MAGISTRATES COURT OF TASMANIA AT BURNIE
Procedure - Costs - Jurisdiction - General - Jurisdiction to order solicitor and client costs - Proceedings brought to an end by notice of discontinuance.
Supreme Court Rules 2000 (Tas), rr624(1)(c), 625(1), (2), 631.
Magistrates Court (Civil Division) Act 1992 (Tas), ss28, 33, 34.
Magistrates Court (Civil Division) Rules 1998 (Tas), rr32, 138.
Money Tree Management Services Pty Ltd v Deputy Commissioner of Taxation [2000] SASC 345, referred to.
Procedure - Inferior courts - Tasmania - Local courts - Orders in nature of certiorari - Other remedies not exhausted.
Magistrates Court (Civil Division) Rules 1998 (Tas), r152.
Rodger v De Gelder [2011] NSWCA 97, referred to.
Judgment Number: [2012] TASSC 42
R v REGISTRAR OF THE MAGISTRATES COURT OF TASMANIA AT BURNIE; EX PARTE IVAN ANTHONY
1 Ivan Anthony is aggrieved by a costs ruling made by Magistrate Jones on 19 July 2010 in civil proceedings after he filed a notice of discontinuance. The learned magistrate ruled that the defendant, Maxam Australia Pty Ltd, was entitled to costs on a solicitor and client basis. In question is whether the magistrate had jurisdiction to make an order for solicitor and client costs, given the proceedings were at an end.
2 Mr Anthony, the claimant (it is convenient to refer to the parties by reference to their status in the magistrates court proceedings), appeals that decision and also has applied for relief in the nature of certiorari pursuant to the Supreme Court Rules 2000. On 14 June 2011, Associate Justice Holt made a general order to show cause why relief should not be granted in relation to the order of Magistrate Jones or alternatively, in relation to the conduct of the Registrar of the Magistrates Court at Burnie, referring to the conduct of the Deputy Registrar in issuing the order. The issues raised by the appeal and the general order overlap to a significant extent but are not precisely the same. I will identify the issues shortly, after referring to some of the history of the proceedings before the magistrate.
3 In October 2009 the claimant commenced proceedings in the Magistrates Court Civil Division with a claim in the sum of $18,909.31 said to arise from a breach of an employment agreement with the defendant company, Maxam Australia Pty Ltd. It was asserted that the claimant was employed by the defendant company at its mining operations in Kazakhstan. In November 2009, the defendant's solicitors wrote to the claimant's solicitors informing them that they were pursuing the incorrect defendant, that Maxam Australia Pty Ltd had not employed the claimant at any stage, and that their investigations indicated that the plaintiff was engaged by a distinct corporate entity in Kazakhstan, Maxam Kazakhstan LLP. An application for costs was foreshadowed. Then, on 5 March 2010, the defendant's solicitors filed an application seeking various orders, including summary judgment for the defendant, and costs on a "full indemnity basis". This application was listed before Magistrate Jones on 16 July 2010.
4 On 30 March 2010, the claimant filed a notice of discontinuance (referred to as "the notice") pursuant to the Magistrates Court (Civil Division) Rules 1998 (the "MCCD Rules"), r32. Under the Rules, for the notice to be effective it had to be served (r32). The notice had been sent by ordinary mail to the defendant company's solicitors in Queensland rather than its solicitors in Burnie, Tasmania.
5 The District Registrar of the Burnie Magistrates Court issued a "notice of costs application" to the parties listing the application for 19 July 2010. On that date the application for summary judgment and costs, listed for 16 July, was also heard.
6 At the hearing before Magistrate Jones on 19 July, one of the key issues considered was whether there had been effective service of the notice of discontinuance on the defendant. It may be noted that the point had implications for the quantum of costs that the defendant would be able to pursue. If the notice had not been served as required by r32, the proceedings were still on foot, and the defendant could seek costs for the period beyond the filing of the notice while the proceedings were ongoing. Counsel for the claimant indicated that he would again serve the notice of discontinuance on the defendant's solicitors. The magistrate gave the parties seven days in which to file any additional submissions as to the validity of service of the notice of discontinuance.
7 Consideration was also given to the basis upon which costs were to be paid, the defendant having made an oral application for costs to be paid on an indemnity basis. Counsel for both parties consented to a determination being made on that issue before resolution of the issue of service. After hearing submissions, the magistrate ruled in favour of the defendant that the "costs should be ordered on the basis of solicitor/client costs", finding "special circumstances" warranted the order.
8 A formal order of the court, in terms of Form 9 (ref MCCD Rules, r77), relating to the proceedings for 19 July 2010 was prepared, signed by the District Registrar, and sent to the solicitors. The terms of the formal order are as follows:
"Parties to provide written submissions as to the validity of service of Notice of Discontinuance within 7 days.
Order that the respondent pay the claimants costs on a Solicitor/Client basis".
9 This document, and the conduct of the District Registrar in signing it, falls for scrutiny in these proceedings by virtue of the general order. The first part of the record is an accurate note of the direction that was made regarding the filing of written submissions. The second part inaccurately records the proceedings. The magistrate did not make such an order. First, his ruling did not relate to the claimant's costs, but rather the defendant's costs. Second, he did not make a costs "order". He ruled that costs to be paid by the claimant should be on a solicitor and client basis. The prerequisite for the order was validity of service which was undetermined. Indeed, the fact that this determination was outstanding is evident from the record of proceedings.
Train of events that followed the "order" for costs
10 Unfortunately, as will be seen, this error in the recording of the court orders which elevated the magistrate's ruling as to costs to a costs order resulted in the defendant setting out on a path of conduct which, at best, could be described as opportunistic. While the conduct and events which followed do not fall to be reviewed, it is worth noting them in order to understand the grievance of the claimant. If these proceedings are successful, relief is sought which will have the effect of addressing this grievance. The conduct and the events proceeded on the basis that Magistrate Jones had made a costs order, when in reality a determination as to liability to pay costs was outstanding.
12 On the last-mentioned day, 5 November 2010, Magistrate Jones delivered his decision in which he concluded that the notice of discontinuance was effectively served on the date it was received by the Queensland solicitors. The delivery of this decision, essential to any order as to costs, ought to have drawn attention to the obvious fact that the defendant's conduct had been pre-emptive and so was the court process of the taxation (assessment) and the warrant. However, it did not have the effect of bringing events back on track. Instead, in a letter dated 9 December 2010, the defendant wrote and threatened to take a levy on the claimant's property and have the bailiff sell it.
13 On 4 February 2011, the claimant filed an application seeking various orders, including that the warrant to sell property be set aside, and that the issue of quantum of costs be set down for determination at a taxation hearing.
14 The application was listed for hearing on 4 March 2011. At that hearing, the magistrate made orders that written submissions be filed as to the court's power to set aside the bill of costs taxed by the Registrar, and as to the basis upon which costs would be payable after 30 March 2010 (when the notice of discontinuance was filed). His Honour stayed the warrant.
15 The claimant's response, or more accurately lack of response, to the conduct of the defendant in pursuing costs on the basis of the inaccurate formal order provided by the District Registrar was the subject of evidence in these proceedings. Essentially, the solicitor for the claimant did not respond because he considered that the defendant had no entitlement to proceed to taxation until the decision was delivered as to service of the notice. Pending the decision he regarded the correspondence from the solicitors regarding costs and proceeding to taxation as "bluff and bluster". After that decision was delivered he was "optimistic that the court would perfect its final orders relating to costs to reflect its decision that the notice of discontinuance was served on the 30th of March". As I understand his evidence, it was that by virtue of the decision it was evident the defendant was not entitled to costs that had been sought after the date of service of the notice, and the claimant's solicitor expected that "the court would acknowledge that and make orders accordingly". He was unaware of the certificate of taxation issued by the court and the warrant until after he had received a "very worried" telephone call from his client in November 2010 asking about a caveat that had been placed on his property, and it was then that he made enquires of the court.
16 The appeal relates to the costs ruling made by Magistrate Jones on 19 July 2010 that costs be paid in favour of the defendant on a solicitor and client basis. It does not relate to orders or rulings made by the learned magistrate on any other date. The appeal raises two grounds said to amount to errors of law. The first ground asserts error by making "any order for costs on 19 July 2010 when, as a fact, the appellant filed and served a notice of discontinuance of the proceeding on 31 March 2010". The second ground is by "hearing any application after 31 March 2010 in that on and from that date the court had no jurisdiction, except as expressly provided for by rule 32 of the Magistrates Court (Civil Division) Rules 1998".
17 These two grounds are closely related and concern the issue of whether there was jurisdiction to make a solicitor and client costs order, the proceedings having been brought to an end by the notice of discontinuance.
18 The notice of appeal also seeks an order extending time, pursuant to the Supreme Court Rules 2000, r52, for the lodging of this appeal.
19 The appeal and the general order to show cause give rise to the same central issue. Similar to the grounds of appeal, one of the grounds of the order to show cause is that the court had no jurisdiction to make the "solicitor-client" costs order on 19 July 2010, upon the discontinuance of the action. An argument raised in this context is that a solicitor and client costs order cannot be made in the Magistrates Court at all, as the legislation provides for an event-based scale which is at odds with a purported order as to solicitor and client costs. Arguably, this argument identifies a distinct error regarding jurisdiction and ought to have been expressly identified as such in the general order. I will not pause over that point, noting that no issue was taken with it by counsel for the respondent.
20 One of the grounds pressed in the general order is that the District Registrar had no authority to issue the solicitor and client costs order as no such order had been made by the magistrate. Undoubtedly the formal order was incorrect at the time it was issued and the ruling on 19 July fell short of an order and therefore, in the circumstances of this case, the basis for the assessment fell away. The error was conceded in these proceedings. However, for reasons that I will come to, this does not mean that discretionary relief should be granted.
21 Since writing these reasons it has become evident that there are irregularities in the general order to show cause. The general order addresses the Registrar of the Magistrates Court at Burnie as a person to whom the order is directed, when the proceedings are concerned with the conduct of the District Registrar. The order relates to a ruling made by Magistrate Jones. The order does not name Magistrate Jones as a person to whom the order is directed (see Supreme Court Rules, r624(1)(c)). It has not been ordered that the District Registrar or Magistrate Jones be served (see r625(1), noting r625(2) as to the manner of service of a general order on a magistrate). In the ordinary course, on becoming aware of such irregularities, I would require them to be addressed and, if the matter were to proceed, the correct individuals served in accordance with the Rules. However, this course is not appropriate as the grounds of the general order must fail for the reasons set out below.
22 Unlike the appeal proceedings, there is no time limit for bringing an application for relief in the nature of certiorari. However, delay is a relevant consideration in exercising the discretion to refuse the application. It is necessary that the appeal be determined before the application for certiorari: Supreme Court Rules, r631.
23 The issues outstanding arising from the appeal and the general order are as follows:
Preliminary issues: a costs ruling which became an order
24 The grounds of appeal and the general order relate to the proceedings on 19 July when it is contended that a ruling was made, yet both refer to the making of an order. There is an obvious tension between those grounds and the argument advanced in support of the grounds that the ruling was not an order. Presumably the reason why the ruling is described as an order in the grounds is that once the finding of effective service was made, the ruling became effective as an order. Mr McElwaine described the ruling as a "hypothetical determination". It is reasonable to approach the matter on the basis that the ruling became effective as an order when the finding of valid service was made on 5 November 2010.
25 It is unnecessary to be troubled by this matter and any argument as to the date the order became effective. There is no argument about the fact that an order as to solicitor and client costs was made. The ruling on 19 July related to that order, and the date the order became effective is immaterial to these proceedings. This has implications for the quantum of costs that the defendant may seek, but not for the jurisdiction of the magistrate to make the order.
26 I also note that a ruling falling short of an order may be the subject of an appeal: Magistrates Court (Civil Division) Act 1992, ("MCCD" Act) s28. I note too that as there is no doubt that there is a costs order in existence, there is a point to this appeal.
27 On the application to extend time, an affidavit of the claimant's solicitor was filed, and he was cross-examined at the hearing of the appeal. In the circumstances of this case, I conclude that the outcome of the application to extend time should rest with the grounds of appeal. If the appeal has merit and would succeed, then justice lies in extending time. Relevant considerations are the error made in an official court record that has led to the unfortunate state of affairs in this case, and the opportunistic approach of the defendant's solicitors in pursuing payment for costs when an order had not yet been made.
Jurisdiction to make a solicitor and client costs order, the proceedings having been brought to an end by the notice
28 I turn to consider the central issue in these proceedings regarding the magistrate's jurisdiction to make a solicitor and client costs order. The starting point is the MCCD Rules, r32, which provides:
(1) A party may discontinue an action commenced by that party at any stage of the proceedings by notice in writing filed and served on any other party.
(2) Unless the parties agree otherwise, costs of the action are to be paid by the party discontinuing the action."
29 Pursuant to r32, leave to discontinue is not required. It is plain from the terms of the provision that once it is triggered by filing and service of a notice of discontinuance, then costs follow. It appears from the terms of the provision that costs would follow automatically, absent an order. In Professional Health Partners Pty Ltd v Spiers [2009] TASSC 46, Tennent J made observations (undisturbed by the Full Court on appeal, Professional Health Partners Pty Ltd v Spiers [2010] TASFC 1) that once r32 applied, no application for costs was necessary, and that a defendant's bill of costs needed simply to be filed for the purpose of taxation. Tennent J went on to note that a ruling by the Registrar on taxation could be reviewed by a magistrate, par[23].
30 In the ordinary course the claimant would have been entitled to costs pursuant to r32 on a party and party basis. No order would have been required to trigger this entitlement. However, in this case an order was made, after the notice of discontinuance was filed. The question is, did the learned magistrate have jurisdiction to make a solicitor and client costs order, or was he without jurisdiction because the proceedings were at an end?
31 It is uncontentious that the learned magistrate was right to decide the issue of service and whether r32 applied, regardless of any questions that may be raised about his jurisdiction to make a costs order. Issues of jurisdiction must be determined by the court or tribunal whose jurisdiction is in question: Attorney-General v Estcourt and The Wilderness Society Inc [1995] TASSC 65; (1995) 4 Tas R 355 at 367-368.
32 Having referred to the MCCD Rules, r32, I note that the observations by Tennent J in Spiers do not speak to the question of jurisdiction. The fact that an order for party and party costs is not necessary to trigger an entitlement to such costs does not mean that the court which makes an order does so without jurisdiction. It seems to me that r32 is concerned with mandating costs with respect to notices of discontinuance, and does not have the effect of depriving the magistrates court of jurisdiction with regard to costs. It cannot be gleaned from r32 that the court has no power to make a costs order after the filing of a notice of discontinuance.
33 The case of Money Tree Management Services Pty Ltd v The Deputy Commissioner of Taxation [2000] SASC 345, provides support for the defendant's contention regarding jurisdiction. In Money Tree, on the morning of the day that an appeal to the Full Court was due to be heard, the appellant attempted to file a notice of discontinuance. It had been foreshadowed that the respondent would be seeking indemnity costs. Because it was a facsimile document, the registry refused to accept it. It was held by the Full Court that the notice did not comply with the rules, and the registry was entitled to refuse it. Lander J, with whom Williams and Wicks JJ agreed, stated at par[10] that even if the notice complied with the Rules, the respondent would still be entitled to seek costs on an indemnity basis under r95.07(3), the equivalent provision to r32, and in those circumstances the court was entitled to hear the respondent's application. The South Australian Rules with respect to appeals allowed for filing notices of discontinuance as of right, like the Tasmanian Rules under consideration. The South Australian provision relating to costs was as follows:
34 The Supreme Court Rules, 1987 (SA), r95.07(3), provides:
"A party filing a Notice of Discontinuance ... shall be liable to pay the costs of the other party or parties occasioned by this appeal".
"Of course, costs, as understood under r 95.07, would ordinarily be costs on a party/party basis but, in my opinion, the filing of a Notice of Discontinuance does not prevent the party, against whom the notice is filed and served, from making application for costs on a basis, apart from a party/party basis: s 40 Supreme Court Act; r 101 of the Supreme Court Rules."
36 The legislation provides the court with a wide discretion as to costs. The Supreme Court Act, 1935 (SA), s40 provides:
(1) Subject to the express provisions of this Act, and to the rules of court, and to the express provisions of any other Act whenever passed, the costs of and incidental to all proceedings in the court, including the administration of estates and trusts, shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid."
"101.01(1) Notwithstanding the following provisions of this Rule and of the provisions of Rule 101A.01 the costs of any party, the amount thereof, the person by whom, or the fund or estate, or portion of an estate, out of which they are to be paid are in the discretion of the Court, ...".
38 The latter rule goes on to specifically mention various costs orders that may be made such as an award for a lump sum, a direction regarding whether or not the costs are to be set off, orders for payment by one defendant to another or by a party of costs awarded against another, and matters to be taken into account on exercising the discretion. Subsection (3)(c) specifically states that the "Court may in any proceeding exercise its powers and discretions as to costs at any stage of the proceeding and after the conclusion of the proceeding".
39 The equivalent provision in our MCCD Act is s33 which provides:
(1) The costs of and incidental to all proceedings are in the discretion of the Court and the Court may determine by whom and to what extent the costs are to be paid.
(2) In the due exercise of the discretion conferred by subsection (1), in any proceedings before the Court, the Court may order a practitioner to pay the costs of the proceedings or a portion of the costs."
40 While the Tasmanian legislation does not have a provision like r101(3)(c), expressly mentioning the exercise of costs powers after the conclusion of proceedings, the costs power in the MCCD Act, s33, in its broad and open terms, implicitly conveys the same power. Our equivalent provision seems just as wide, having the same effect with less particularity.
41 The claimant's argument emphasises that the discussion about jurisdiction in Money Tree is obiter and presses for the contrary view, relying on a decision of the English Court of Appeal, in Conybeare v Lewis (1879) 13 Ch D 419. The facts in Conybeare were that after an appeal was lodged with respect to lower court proceedings, a notice of discontinuance was filed with respect to the proceedings in the lower court. The appeal had not been withdrawn as the defendant's solicitors had declined to consent to that occurring; it was maintained that they should have their costs after the notice of discontinuance. The Master of the Rolls Jessel in a very brief judgment, with whom Lord Justices Babballay and Cotton agreed, stated that the court had no jurisdiction to make any order about costs as there was no appeal before them. Jessel MR noted at 470 that "notice to discontinue the action having been given, the appeal comes to an end, and we cannot make any other order than to strike it out of the paper". The facts of that case are distinguishable from this case. That case was concerned with the jurisdiction of the appeal court to make a costs order with regard to proceedings in a lower court, when those proceedings had been discontinued.
42 The approach in Money Tree is in line with the wide discretion allocated to magistrates regarding costs. It also enables sensible and just outcomes with respect to costs. If the situation were otherwise, claimants could irresponsibly prolong litigation, safe in the knowledge that a notice of discontinuance would avoid solicitor and client costs. Such a consequence is at odds with the objectives of the legislation governing civil proceedings in the magistrates court. The statutory scheme is designed to achieve early resolution of claims. This is evident from specific provisions which promote early and realistic settlement offers, and penalises parties who persist with litigation, despite poor prospects of attaining a better outcome.
43 The discretion to stay proceedings on the basis of an abuse of process is not an answer to the legitimate concerns for defendants of irresponsible litigation. It is recognised that there are circumstances that can amount to an abuse of process to discontinue a proceeding (see the discussion in Cairns, B, Australian Civil Procedure, 9th ed, Thomson Reuters, 2011, at 12.750). Whether magistrates have such a discretion is not a question that falls for consideration in these proceedings. As the situation in Money Tree demonstrates, if the discretion exists, there are cases justifying a solicitor and client costs order that would not be addressed by a power to stay proceedings because the facts would fall short of abuse of process.
44 I conclude that the magistrate had jurisdiction to make a solicitor and client costs order on the filing of a notice of discontinuance. Having reached a determination which has the effect of disposing of the appeal (Supreme Court Rules, r631(b)(i)), I turn now to the general order. The issue of jurisdiction common to the appeal has been decided and so I will consider the remaining issues.
Are solicitor and client costs at odds with an event-based scale?
45 There remains the question raised by the general order to show cause that a solicitor and client costs order cannot be made, as it is at odds with the scheme of the rules which provide for an event based scale. It was clearly intended by Parliament that solicitor and client costs may be awarded in relation to proceedings in the Magistrates Court. The submission fails to take account of the broad discretion of the Magistrates Court with regard to costs: MCCD Act, s33(1). Costs on a party and party basis are tied to the scale, but solicitor and client costs are not so limited: MCCD Act, s34.
46 This view is reinforced by a consideration of the rules relating to costs on judgments. Costs awarded on a solicitor and client basis stand outside the prescribed scale which relates to costs on a party and party basis. Thus, r138(8) relating to solicitor and client costs is an exception to the usual order that a successful party is entitled to costs according to the scale set out in the rules (r138(1) - (6)):
(1) Unless the Court orders otherwise, a successful party in an action is entitled on judgment to costs against an unsuccessful party in accordance with this rule and rule 139.
(2) If judgment is in respect of an action for a sum of money -
(a) a successful claimant is entitled to costs on the relevant scale specified in Schedule 1 applicable to the sum actually recovered; and
(b) a successful defendant is entitled to costs on the relevant scale specified in Schedule 1 applicable to the sum claimed.
(3) If judgment is in respect of an action other than for a sum of money, a successful party is entitled to costs on the applicable scale in Schedule 1 as determined by the Court.
(4) Each item in Schedule 1 is inclusive of costs for all incidental and necessary activity and advice.
(5) Costs are not allowed for any item not listed in Schedule 1.
(6) An assessment officer may determine that a lesser amount than that specified for any item listed in Parts 1 and 2 of Schedule 1 is allowed.
(7) If a scale of costs in respect of a particular action is not specified in Schedule 1, the Court, on the application of a successful party or at the request of a registrar, may fix an appropriate scale of costs.
(8) If the Court considers proper cause exists, the Court may order that a successful party is entitled to costs on a solicitor and client basis."
47 Solicitor and client costs are an exception to the usual party and party costs and the usual scale. These specific statutory provisions, as an exception to the event-based scheme, indicate that the contention for the defendant lacks merit. While it may be said that there is a lack of guidance in the Rules as to the quantum of costs permitted by a solicitor and client costs order, that does not mean that there is no power to make the order. It is perhaps an argument in favour of seeking costs orders which provide some direction in this regard. No other matters have been drawn to my attention which would warrant further consideration of this argument. The ground of lack of jurisdiction, resting on this argument and the unsuccessful argument rejected when considering the appeal, must fail.
The Deputy Registrar's formal order and discretionary relief
48 It has been identified that the Deputy Registrar made an error in the formal order. This error has had consequences leading to a premature assessment of costs and the issuing of a warrant which has significant consequences for the claimant. I have had the benefit of submissions on the point of whether the error amounts to error on the face of the record for the purposes of certiorari, and whether it is permissible to have regard to the transcript of proceedings before the learned magistrate. Without reference to the transcript of those proceedings the error is not revealed. The submissions referred to Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163. For reasons that follow it is unnecessary to decide this point, or indeed, the more general question of whether a mistake made by the Deputy Registrar in the formal order is amenable to this form of relief in the nature of certiorari.
49 If relief in the nature of certiorari is available in this situation, a relevant consideration in determining whether the discretion should be refused is whether an applicant has come to this Court having first exhausted other remedies: Rodger v De Gelder [2011] NSWCA 97 at par[92]. There are good reasons why this should be a usual requirement. It is sensible that the court at first instance, having specialist knowledge about its processes, should be scrutinising those processes and should be afforded the opportunity to remedy any problem relating to them (refer Aronson, M, Judicial Review of Administrative Action, 4th ed (supra), at 12.50 and 12.155). If there is then an appeal, this Court would have the benefit of the lower court's consideration of the matter.
50 The MCCD Rules provide an available remedy to address the error that has been identified. Rule 152 provides:
"152 Review of registrar's or conciliator's decision
(1) A person may apply to a magistrate for a review of any decision or act of a registrar or a conciliator.
(b) make any appropriate order in respect of the act.
(b) in any manner the magistrate considers appropriate.
(4) A registrar may refer any matter to a magistrate."
51 Rule 152 has application to acts of a District Registrar; the term "registrar" is defined in the MCCD Act, s3 as including a "district registrar". There is no time limit with respect to this kind of application for review. Rule 152 provides an obvious pathway still open to the applicant. In these circumstances discretionary relief should be refused.
52 For the reasons provided, the grounds of appeal lack merit and the appeal would not succeed. The application for an extension of time is dismissed. In view of my conclusion that discretionary relief should be refused, the general order is discharged.
(1995) 4 Tas R 355
(1995) 184 CLR 163