Mr Talbot said that he was just giving his point of view.
125 Prior to the meeting of the board of directors of NRMA on 5 November 1998, Mr Talbot was told by Mr Hullah that the defendant's poll papers had been split into three. He said that he formed the view that failure to sign the poll paper was deliberate and, he said, he realised the significance of what he said the defendant had said to him at the annual general meeting. Yet he did not raise the conversation at the directors' meeting. Nor did he raise it at the subsequent meeting on 26 November 1998, nor did he mention it to Mr Tyres. Mr Talbot's explanation was that Mr Tyres was a member of staff and he as a director did not want to pressure him. The Tyres' report was discussed at a board meeting on 25 March 1999. Mr Talbot did not raise the conversation at that meeting either, when it was resolved unanimously that the Tyres' report be referred for legal opinion including senior counsel as to any course of action that the board should take.
126 On the other hand, Mr Hullah corroborated one aspect of Mr Talbot's evidence to the effect that he was approached on one occasion by Mr Talbot after the close of the annual general meeting on 28 October 1998 when he said he could not give Mr Talbot the information and that he should ask the defendant. Mr Talbot said that when he approached Mr Hullah he looked nervously at him. Mr Hullah said he was not nervous and there was no reason for him to be so.
127 The defendant's assertion that he may have said: "You owe me a big favour. Wait till you see what I've done for you" in the different context related to Mr Talbot's position on various fee-paying committees and boards of subsidiary companies arose for the first time in his affidavit sworn after the conclusion of the plaintiff's case. Significantly this proposition was not put to Mr Talbot in cross-examination. I am unimpressed by the defendant's evidence in this regard. It smacks of a reconstruction. Notwithstanding that it gives verisimilitude to a conversation with Mr Talbot containing those elements, and notwithstanding that such statements, if made, are consistent with my findings in relation to the conversations had between Mr Hullah and the defendant, in view of the serious nature of the plaintiff's process, the contradictions in the testimony of Mr Talbot leave me with an insufficient satisfaction that the conversation took place in connection with the voting on resolution 6.
128 I adopt a similar attitude to the evidence of Mr Dempsey. Mr Dempsey was retained to provide strategic advice to Mr Dodd. His alleged conversation with the defendant had a serious potential for adverse publicity for NRMA, yet he did not alert Mr Dodd to it. Neither did he tell Ms Keating who was a close confidante with whom he shared important information. Mr Dempsey said he learned from Mr Dodd of the failure of the defendant to sign the poll paper on Saturday 31 October 1998. Again, he made no mention of the alleged conversation. Mr Dempsey spoke with the defendant often after the annual general meeting. Again, he made no mention of the alleged conversation to the defendant or asked him for an explanation. He made no mention of the alleged conversation to Mr Tyres.
129 Shortly after the annual general meeting, Mr Dempsey said he told Alan Peter Hunt, a friend and legal adviser, of the conversation. Mr Hunt said that he spoke with Mr Dempsey approximately twice a week during 1998 and he had no recollection of being told that the defendant, prior to the annual general meeting, told Mr Dempsey he was thinking of not signing a poll paper. He said he was confident in his recollection because it was the sort of thing that would stand out in his memory and it did not. Both Mr Dempsey and the defendant gave evidence that their relationship had deteriorated in about the middle of 1998 when the defendant wished to become chief executive officer of NRMA and Mr Dempsey advised against it. The defendant said that he remained in contact with Mr Dempsey in an attempt to ascertain Ms Keating's attitude to various matters. I find it difficult to imagine that the defendant would have armed Ms Keating through Mr Dempsey with an observation so detrimental to his position. Furthermore, if the relationship which existed between the defendant and Mr Dempsey in October 1998 was such that the defendant trusted Mr Dempsey to keep to himself the conversation, why did Mr Dempsey not tackle the defendant about it after learning on 31 October 1998 that the defendant had not signed the poll paper?
130 On the other hand, Optus records established that he defendant telephoned Mr Dempsey on the morning of the annual general meeting and a conversation took place. At his examination under the Australian Securities and Investments Commission Act 2001 (Cth) Mr Dempsey said he told no one of his conversation with the defendant. At the end of that examination he was told he could come back if he had any further things to say. Mr Dempsey said that he recalled having a conversation with Mr Hunt and he arranged for a further examination during which he revealed this information. He did not speak with Mr Hunt before his further examination and he maintained his recollection of a conversation with Mr Hunt notwithstanding his understanding that Mr Hunt had no recollection of such a conversation.
131 There is a congruence between the conversations I have found took place between the defendant and Mr Hullah and the alleged conversations between the defendant and Mr Talbot on the one hand and between the defendant and Mr Dempsey on the other. There is a temptation to say that the three were not collaborators and, having found that one conversation took place contrary to the assertion of the defendant, his denial of the other conversations should also be rejected. The defendant's continued statements that the conversations "did not happen" had a hollow ring to them. However, bearing in mind the seriousness of the plaintiff's allegations, I am concerned with the effect of the evidence of Mr Hunt. I accept his evidence that if Mr Dempsey had told him of the alleged conversation with the defendant, it would have stood out in his memory. The contradiction between his testimony and that of Mr Dempsey leaves me with an insufficient satisfaction that the conversation deposed to by Mr Dempsey took place.
132 In their written submissions, Mr Bannon SC who with Mr Stephenson appeared for the defendant, raised a number of arguments. The first was that the defendant did not fail to vote on behalf of the 3,973 members who instructed him to vote against resolution 6.
133 In its statement of claim, the plaintiff alleged that the defendant failed "to vote" against resolution 6 in accordance with the instructions of 3,973 members. Particulars were given one of which was abandoned at the commencement of trial. The second particular was that the defendant failed to sign the poll paper when presented with the opportunity of doing so by Mr Hullah. Mr Hullah did not ask the defendant to sign the poll paper nor did the defendant offer to do so. Neither had a view as to the efficacy of taking that course after the polls had closed. In my view the second particular is not made out on the evidence.
134 The first particular is that the defendant failed "to sign" the poll paper in question. That particular has been made out on the findings I have made. Notwithstanding those findings, it is submitted that the defendant did not fail "to vote" by a failure "to sign". I reject this submission. The rules for the meeting required a signature on a poll paper for it to constitute a valid vote. Notwithstanding that legal advice subsequently obtained was to the contrary effect, the defendant was aware that a failure to sign a poll paper would cause Mr Hullah to exclude the votes contained therein from the count. I regard the particular as explanatory of the phrase "to vote" and to constitute a proper pleading. I find that the allegation has been made out.
135 Secondly, it was submitted that the opportunity to vote continued until the result was declared with the consequence that any failure to vote was based on the legal advice of Mr Standen and Ms Mackenzie given to the defendant and Dr Morstyn when the defendant returned to the meeting venue. The second particular might be said to imply an entitlement to vote after the polls had closed. The first particular does not have that temporal connotation. It is confined to a failure to vote before the polls had closed by a failure to sign the poll paper at that time. At that time no legal advice had intruded and I reject the submission.
136 Thirdly, it was submitted that the defendant signed the poll paper by filling in his name and initials. Reliance was placed upon a number of cases which have found, in the absence of a signature in the usual sense, that the insertion of the name of a party was sufficient to satisfy the requirement of writing for the purposes of legislation similar to the Conveyancing Act 1919, s 23C.
137 In Schneider v Norris (1814) 2 M & S 287 (105 ER 388) it was held that a document in which the name of the vendor was printed and that of the purchaser was written by the vendor was a sufficient memorandum of the contract within the Statute of Frauds to charge the vendor. Similarly, in Evans v Hoare [1892] 1 QB 593 it was held that a memorandum containing the name of the party sought to be charged inserted in some part of the memorandum by that party or his agent as being a party to the agreement, where such memorandum was presented for signature to the other party, was a sufficient signature to bind the party sought to be charged.
138 These decisions were relied upon in Leeman v Stocks [1951] Ch 941 in which an auctioneer filled in the name of the vendor in a form of contract which the successful purchaser signed. The vendor subsequently alleged that there was no memorandum in writing sufficient to satisfy the statute. An action for specific performance was successful. It was held that when the auctioneer obtained the purchaser's signature neither he, acting on the vendor's behalf, nor the purchaser intended any other signature ever to be added, but that both intended the document with the purchaser's signature to be the final written record of the contract and accordingly there was a sufficient memorandum to bind the vendor. Reference was also made to Knight v Crockford (1794) 1 Esp 190 (170 ER 324), Saunderson v Jackson 3 Bos & Pul 238 (126 ER 1257), Johnson v Dogson (1837) 2 M & W 653 (150 ER 918), Durrell v Evans (1862) 1 H & C 174 (158 ER 848) and Cohen v Roche [1927] 1 KB 169.
139 Those cases were decided in the context of a written instrument not intended to bear a signature of one of the parties. In this case, the rules for valid voting at the annual general meeting required both the filling in of a name and initial and the appending of a signature.
140 The Bills of Exchange Act 1909 (Cth) provided that where any instrument was required to be signed by any person, it was not necessary that it be signed with that person's own hand, but it was sufficient if the signature was written thereon by some other person by or under authority. It was also provided that a person was not liable as drawer of a bill of exchange if that person had not signed it as such. In Commonwealth Bank of Australia v Muirhead [1997] 1 Qd R 567 the female appellant alone signed bills of exchange beneath the printed words "for and on behalf of" the names of both appellants. They failed in their contention that the male appellant was not liable as a drawer of the bills. It was held that in the absence of express provision to the contrary, legislation requiring signature of a document should not be taken to preclude signature by an agent and that in signing her name, as she was authorised to do by her husband, the female appellant adopted and authenticated the printed words on the bills. In so doing, she thus signed not only her own name, but that of her husband. Again, that context is far removed from the present which required the proxy, personally, to sign the poll paper. Reference was also made to Deputy Commissioner of Taxation v Boxshall (1988) 19 FCR 435 in which it was held that a bankruptcy petition was validly signed in the name of the appellant by his duly authorised agent signing the appellant's name.
141 I reject the submission that the poll paper in question was signed by the defendant. The poll paper not only required the filling out of name and initials. It also required the personal signature of the proxy.
142 Fourthly, it was submitted that contravention of the Corporations Law (Cth), s 250A(4)(c) did not, of itself, give the plaintiff jurisdiction to bring the proceedings. I agree with that submission. However, it does not dispose of the plaintiff's process. I am asked to make declarations and orders for penalty and disqualification under s 1317EA. That section applies if a court is satisfied that a person has contravened a civil penalty provision. Section 250A is not a civil penalty provision as that term is defined in s 1317DA. Section 250A(5) contains its own sanction for breach of the provision. A person who contravenes s 250A(4) is guilty of an offence if appointment as a proxy resulted from the company sending to members a list of persons willing to act as proxies, or a proxy appointment form holding the person out as being willing to act as a proxy.
143 The Corporations Law (Cth), s 232(2), s 232(4), s 232(5) and s 232(6) were civil penalty provisions in terms of s 1317DA. Fifthly, it was submitted that the defendant's conduct was not conduct within the scope of his office within the meaning of those provisions. The provisions relied upon by the plaintiff set out in par 2 above require an officer of a corporation to act honestly in the exercise of powers and the discharge of duties of office, to exercise the degree of care and diligence of a reasonable person in the exercise of powers in the discharge of duties of office and not to make improper use of the office to gain an advantage or to cause detriment. It was submitted that the functions of a chairman are distinct from the powers and duties of the office of director with the consequence that there was no breach of the civil penalty provisions. My attention was drawn to the well known distinction between powers conferred on a board of directors and powers exercised by members in general meeting (John Shaw & Sons (Salford) Ltd v Shaw [1935] 2 KB 113 at 134).
144 It is clear that the chairman of a meeting of members of a company has a number of clearly defined duties some of which are usually contained in a company's constitution, others of which are supported by authority and in the texts. I was referred to Shaw and Smith, The Law of Meetings - Their Conduct and Procedure, 5th ed (1979) 56, Joske's Law and Procedure at Meetings in Australia, 8th ed (1994) ch 6, National Australia Bank Ltd v Market Holdings Pty Ltd (in liq) (2001) 37 ACSR 629 at 644-645, Davidson, Company Meetings, 2nd ed (1992) par 1002, Lumsden, Managing Proxies and the Role of Chairman, Australian Institute of Company Directors (1998), Horsley's Meetings, Procedure, Law and Practice, 4th ed (1998) par 6.10, Puregger, The Australian Guide to Chairing Meetings (1998) 12-13, Shackleton on the Law and Practice of Meetings, 9th ed (1997) 57-61, Moore, The Law and Procedure of Meetings, (1979) ch 13, Clyne, The Law of Meetings, (1971) ch 20 and Renton, Guide for Meetings and Organisations, 4th ed (1985) 30-38.
145 In Link Agricultural at 480 it was said that the purpose of the powers conferred upon a chairman with respect to the conduct of polls was to facilitate the voting and counting of votes in order that the will of the majority of members should be reliably ascertained and whether or not there was error in a chairman's ruling depends on whether it was made in good faith and for that purpose. It was submitted this was a power qua chairman and not a power qua director. To this end I was referred to a number of decisions describing the power of a chairman to adjourn a meeting (Byng v London Life Association Ltd [1990] Ch 170 at 188), to allow a vote by a proxy (Wall v Exchange Investment Corporation [1926] Ch 143 at 146) and to demand a poll (The Second Consolidated Trust Ltd v Ceylon Amalgamated Tea & Rubber Estates Ltd [1943] 2 All ER 567 at 569).
146 It was submitted that to import the concept of the duties of a director into the duties of a chairman might place a chairman who was also a director in an intolerable position. It was submitted that a proxy is an agent of the member and must vote in accordance with the member's instruction. If a chairman/director was of the opinion that the directed vote was not in the best interests of the company, an intolerable position would arise if his duties as director intruded upon his duty as agent to comply with his principal's direction.
147 It was submitted that the defendant assumed the chair as President and acted qua chairman and not qua director and that the allegations of breach of a director's duty based on the failure to sign the poll paper are not sustainable. The defendant was required to vote as proxy against resolution 6 because he was the proxy holder in the chair. The obligation did not arise because he was a director of NRMA. It was further submitted that the Corporations Law (Cth) drew a distinction between a breach of the obligations of a director and a breach of responsibilities as chairman because s 250A contained its own penalty for breach of the chairman's obligation to vote as proxy in accordance with a member's direction.
148 Clearly, a chairman of a meeting owes duties which are distinct from the duties owed by a director. That does not mean, however, that the duties are mutually exclusive or that a breach of the Corporations Law (Cth), s 250A cannot also constitute a breach of s 232(2), s 232(4) or s 232(6). None of the authorities and texts to which reference is made above compel a contrary conclusion.
149 A director of a company does not cease to be a director because he or she chairs a meeting of members. If I, as chairman/director of a general meeting, refrain from demanding a poll when I have been appointed proxy to vote against a resolution approving the sale of company property to my wife at an undervalue, I am in breach of my duty as chairman and I am also in breach of my duty as a director to act in good faith in the best interests of the company and my duty not improperly to gain an advantage or cause detriment to the company. Likewise, if a poll is demanded and I fail to vote against the resolution on behalf of those members who appointed me proxy and instructed me so to do, I am in breach of the Corporations Law (Cth), s 250A(4)(c) and also in breach of s 232(2) and s 232(6).
150 Article 111 of NRMA's constitution provided that the board of directors should each year elect from their number a President. A power was conferred upon the President under art 31 to take the chair at each meeting of members. That was a power qua director. It was not a power shared by all directors but, nonetheless, it was a power obtained by the director elected as President and once that power was exercised, the Corporations Law (Cth), s 232(2) required the defendant to exercise that power honestly. In the exercise of that power, the defendant was subject to the duties discussed in the authorities and texts to which reference is made above. In the discharge of those duties the defendant was obliged to act honestly in terms of s 232(2). The position of the defendant as the director elected President included the power to chair meetings of members. The defendant was obliged, pursuant to s 232(6), not to make improper use of that position to gain an advantage for himself or any other person. In voting in accordance with the instruction of a member appointing him proxy, the defendant would not infringe any duties cast upon him as director.
151 Furthermore, the obligation of a proxy to vote in accordance with the instruction of the member appointing him or her is not confined to a chairman and does not have its foundation in the Corporations Law (Cth), s 250A(4)(c). It is a duty imposed upon every proxy (The Second Consolidated Trust at 570). A proxy, as agent, is duty bound to carry out the instructions of his or her principal. It follows that the failure of any director appointed as proxy to vote in accordance with the instructions of the member appointing him or her is in breach of duty qua director.
152 There was a controversy which does not arise under the Corporations Act 2001 (Cth), s 181(1), as to whether or not s 232(2) of the Corporations Law (Cth) required a consciousness that what was being done was not in the interests of the company (Marchesi v Barnes [1970] VR 434) or, whether the provision was breached where a director exercised powers in a subjectively honest way but for a purpose which the court determined was an improper one (Australian Growth Resources Corp Pty Ltd v Van Reesema (1988) 13 ACLR 261). On my findings, the defendant asserted when confronted with the unsigned poll paper by Mr Hullah that he was acting in the best interests of the organisation. I am not bound to accept that assertion of the defendant and I reject it. I have found that the defendant deliberately omitted to sign the poll paper. He had the deliberate intent to disenfranchise the members who had appointed him proxy and required him to vote against resolution 6 and he was seeking, deliberately, to over-ride the intent of the members of NRMA which he knew to be against the passing of resolution 6 as a special resolution. He had the necessary consciousness that what he was doing was not in the interests of NRMA and his action was deliberate conduct in disregard of that knowledge sufficient to bring him within the Marchesi principle. I reject the submission that the conduct of the defendant was not within the scope of his office as a director of NRMA for the purpose of s 232(2).
153 Sixthly, it was submitted that the conduct of the defendant was inadvertent and not intentional. I have already dealt with that issue. My finding is that the defendant deliberately failed to sign the poll paper in question.
154 Seventhly, it was submitted that the plaintiff had not proved the validity of a single appointment of the defendant as proxy so as to enliven any obligation to vote.
155 Mr Hullah did not personally check each of the appointments of proxy. He carried out sampling checks upon the work of his staff. The statement in the annexure to his final report of 27 October 1998 that 4,429 members had validly appointed proxies and instructed them to vote against resolution 6 was admissible if, as a business record, it fell within the Evidence Act 1995, s 69. The hearsay rule does not apply to such a document if the representation was made on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact. For the purpose of the provision, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was, or might reasonably be supposed to have been, based on what the person saw, heard or otherwise perceived.
156 Article 48 of NRMA's constitution required an instrument appointing a proxy to be in writing under the hand of the appointor, or the appointor's attorney, duly authorised in writing. It was submitted that Mr Hullah's staff were not familiar with the handwriting of members of NRMA and a matter of judgment outside the scope of the Evidence Act 1995, s 69 was involved in the representation which ceased to be one purely of fact. Likewise, it was said that judgment came to bear on determining the degree of spoiling which would render an appointment invalid. This objection was raised at the time of tender of Mr Hullah's report and I was invited to reserve my decision on it.
157 Many asserted facts are based upon a prior exercise of judgment. If I say an event happened at sunset I am exercising a judgment as to when the sun moved below the horizon. Yet my statement is one of fact. Mr Hullah's staff saw the instruments of appointment of proxy and exercised a judgment that they had been completed under the hand of respective members of NRMA. In my view there was a sufficient compliance with the Evidence Act 1995, s 69(5) to constitute personal knowledge of the asserted fact that a valid instrument appointing a proxy had been lodged with NRMA for the purpose of s 69(2)(b). Accordingly, I find that the defendant was validly appointed as proxy by 3,973 members of NRMA who instructed him to vote against resolution 6.
158 I was also invited to reserve my decision on a number of objections to the affidavits and documents. Events have largely overtaken those objections. It will be obvious from my recitation of the facts asserted on both sides, what material I regard as relevant and freed from other forms of objection.
159 Finally, it was submitted that none of the instruments of appointment of proxy satisfied the requirements of the Corporations Law (Cth), s 250A(1) and, thus, the obligation in s 250A(4) was not enlivened.
160 An appointment of proxy form was contained in the notice of the annual general meeting to be held on 28 October 1998. It provided a choice between the appointment of a named person and the appointment of the chairman as proxy. The Corporations Law (Cth), s 250A(1)(c) required an instrument of appointment of proxy to contain the proxy's name or the name of the office held by the proxy. Section 250A(2) provided that the constitution of a company might provide that an appointment of proxy was valid even if it contained only some of the information required by s 250A(1). It was submitted that no provision of the constitution of NRMA provided for any such relaxation.
161 The Corporations Law (Cth), s 82A(1) defines the term "officer" to include a director, secretary, executive officer or employee of the body or entity. It was submitted that a chairman was not included in this definition and was, in consequence, not an office. It was submitted that all instruments of appointment of the chairman as proxy were invalid.
162 In my view there are three answers to this submission. First, art 50 of NRMA's constitution provided that every instrument appointing a proxy should be in the form determined by the board of directors from time to time. The proper inference from the inclusion of the proxy form in the notice of meeting is that it was approved by the board of directors with the consequence that the Corporations Law (Cth), s 250A(2) was satisfied. The constitution provided that an appointment was valid even if it contained only some of the information required by s 250A(1).
163 Secondly, the definition of "officer" in the Corporations Law (Cth), s 82A was not exhaustive. Article 111 of NRMA's constitution provided for the election of office bearers. One such office bearer was the President who was entitled to, and did, assume the chair at the annual general meeting. The nomination of the chairman was the nomination of an office in the event, as happened, that the President assumed the chair.
164 Thirdly, the Corporations Law (Cth), s 250A(4)(c) assumed the appointment of the chair as proxy. It should be inferred, therefore, that s 250A(1)(c) includes within the notion of an "office", the chairman of a meeting.
165 As I have pointed out in par 5 above, the Corporations Act 2001 (Cth), s 180(1) is a civil penalty provision in terms of s 1317E(1)(a). Section 1317S(2) provides that if it appears to the court that a person has contravened a civil penalty provision but that the person acted honestly and, having regard to all the circumstances of the case the person ought fairly to be excused for the contravention, the court may relieve the person either wholly or in part from liability to which he or she would otherwise be subject. I was invited to exercise my discretion under this provision with respect to the defendant's alteration of the minutes of the meeting of the board of directors of 11 August 2000. To this end, testimonials as to the character and integrity of the defendant were in evidence. Having made findings reflecting badly upon the defendant's character and integrity, I am not impressed by the testimonials.
166 Nonetheless, while the defendant acted arrogantly and without due care and diligence, I do not think that he acted dishonestly in proffering the amended minutes. As I have said they were merely a draft submitted to the board of directors for its confirmation. Until they were confirmed, they had no force. There was no guarantee they would be confirmed. Indeed, the evidence was that they were likely to be further amended by a board divided into factions with some board members bitterly opposed to him. Mr Cousins would have his opportunity to voice his view of the minutes, as he did, and in view of his conversation with the defendant he was likely to do so. In my view, the defendant's dishonesty lay in denying the conversation with Mr Cousins rather than in putting forward the amendments to the minutes in conflict with what Mr Cousins had told him.
167 I agree with the sentiments of Mr Cousins when he said that for the life of him he could not understand why anyone would bring a case based on the alterations of a draft set of minutes when it is very rare for a draft set of minutes not to be altered by the board of directors.
168 In the exercise of my discretion under the Corporations Act 2001 (Cth), s 1317S(2) I relieve the defendant wholly from any liability to which he would otherwise be subject for his breach of s 180(1).
169 The Corporations Law (Cth), s 1317JA(2) is in like terms to the Corporations Act 2001 (Cth), s 1317S(2). I was invited to exercise my discretion under this provision with respect to the defendant's failure to sign the poll paper for votes against resolution 6. I decline to do so. The findings I have made negate an honest omission on the part of the defendant.
170 I find that the defendant by failing to sign the poll paper with respect to his appointment as proxy by 3,973 members of NRMA Limited (now National Roads and Motorists' Association Limited) who instructed him to vote against resolution 6 at the annual general meeting held on 28 October 1998, contravened the Corporations Law (Cth), s 232(2), s 232(6) and s 250A. I will make declarations to that effect under s 1317EA(2) and generally. I will hear the parties on the form of the declarations.
171 I have found that in revising the minutes of the meeting of the board of directors of NRMA Insurance Group Limited of 11 August 2000 relating to his remuneration package, causing the revised minutes to be circulated to the other directors and in entertaining their adoption at the board meeting of 6 September 2000, the defendant breached the Corporations Act 2001 (Cth), s 180(1). I will make a declaration to that effect under s 1317E(1). Being satisfied that the defendant, nonetheless, acted honestly with respect to the revision of the minutes, and having regard to all the circumstances, I have found that the defendant ought fairly to be excused for the contravention of s 180(1) and I have relieved him wholly from liability to which he would otherwise be subject in exercise of the discretion conferred on the court under s 1317S(2). I will hear the parties on the form of the declaration.
172 In accordance with directions previously made the question of penalty will be considered separately. I reserve the question of costs until the conclusion of that hearing. I will stand the matter over for the making of the declarations and the fixing of dates for the further hearing. I direct the parties to bring in forms of declaration in accordance with these reasons for judgment.