Carrigan v Honourable Senator Michaelia Cash

1. The application for leave to appeal be dismissed.
2. The applicant pay the costs of the first and third respondents, as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 Before the Court is an application for leave to appeal from the decision of the primary judge granting summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth): Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466. By s 24(1D)(b) of the Federal Court of Australia Act, such a decision is taken to be an interlocutory judgment for the purposes of s 24(1A), so that an appeal may not be brought from such a judgment unless the Court or a judge gives leave to appeal. 2 The application for leave to appeal has been heard by a Full Court and the matter was argued together with the submissions on the appeal, if leave were granted. 3 The applicant's claim concerned a report by the second respondent, the Honourable Peter Heerey AM QC, to the first respondent, the Minister for Employment, provided on 15 February 2016. On 15 March 2016, the Minister tabled a redacted copy of the report in the Senate of the Australian Parliament and caused copies of it to be circulated. 4 Mr Heerey filed a submitting appearance. The third respondent is the Commonwealth of Australia. 5 The applicant's principal complaint in her application for judicial review of the report was that she had been denied procedural fairness by Mr Heerey in the preparation and provision of his report to the Minister and by the Minister in her tabling of the redacted version of the report in the Senate, leading to the subsequent publication of the report more generally. The applicant also contended that Mr Heerey had exceeded his terms of reference by inquiring into her own conduct. 6 The primary judge upheld the application of the first and third respondents to the effect that the applicant's application could not succeed in light of s 16(3) of the Parliamentary Privileges Act 1987 (Cth). 7 The real issue on the grant of leave to appeal is whether the decision of the primary judge is attended with sufficient doubt to warrant its being reconsidered by the Full Court. There can be no doubt that if the decision is wrong, significant consequences will be suffered by the applicant: Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655; 33 FCR 397. 8 The proposed grounds of appeal in the amended draft notice of appeal are as follows, omitting particulars: 1. His Honour erred in law in summarily dismissing the appellant's suit by failing to follow or misapplying the test in relation to the operation of s 31A of the Federal Court of Australia Act 1976 (Cth) as established by the High Court of Australia in Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118. 2. His Honour misconstrued the relevant Fair Work Act 2009 provisions and/or failed to consider or to properly consider the Appellant's argument, namely, at the time the Minister established the Heerey Enquiry and the purpose for writing the Heerey Report and thereafter its tabling, were all acts and conduct under executive authority including the Minister's) exercising their statutory functions/powers pursuant to s 641A of the Fair Work Act 2009. 3. His Honour failed to consider, or to fully consider that parliamentary proceedings as set out in s 16(2) Parliamentary Privileges Act 1987 are… all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House… the result of which led His Honour to misdirect himself in the weight given to the expression transacting of the business of the House. 4. His Honour failed to consider, or to properly consider the harm and/or unfairness invoked by engaging s 16(3) PPA to the facts of this matter and as a result failed to consider how the harm caused by s 16(3) may otherwise be ameliorated. 5. His Honour failed to acknowledge the Ministers' breaches of the appellant's privacy, breaches that were inconsistent with privacy laws in general and acts which were inconsistent with the protection due to the appellant whether it be under s 641A of the Fair Work Act 2009 and/or s 16 of the Parliamentary Privileges Act 1987. 6. His Honour erred when he accepted the Respondents' argument that the appellant's claim invoked the principle of non-intervention. 7. His Honour erred by impermissibly relying upon aspects of the relief sought by the appellant (such as the correction of certain records) when the appellant had indicated to the Court and to the parties, without objection, that the relief to be sought in its final form should be the subject of separate submissions and argument. 8. His Honour failed to determine the extent of the rights of procedural fairness attaching to the appellant in in the circumstances pleaded in relation to the material and adverse impact on the appellant that flowed from the actions of the Executive Government of the Commonwealth and its officers, servants or agents prior to the publication, redaction or tabling of the Heerey Report in the Senate. 9. His Honour failed to acknowledge or find that they had been a long history of complex and quite separate parliamentary processes found within both State and the Federal parliaments with respect of the removal of Judges from office, all of which mitigated against the weight given to the Heerey Report. (Original emphasis.) 9 The first and third respondents relied on a notice of contention, the two grounds of which were as follows, omitting particulars: 1. Words spoken and acts done in the preparation and provision of the Heerey Report were 'proceedings in Parliament' within the meaning of s 16(2) of the Parliamentary Privileges Act 1987 (the Act) because they were for 'purposes of or incidental to' the transacting of parliamentary business: these 'purposes' were established, not only by Mr Heerey's intention and purpose, but also by the Minister's intention and purpose. 2. Section 16(3) of the Act precluded 'statements, submissions and comments' about the relevant proceedings in Parliament from being lawfully made in the Statement of Claim itself; the unlawfulness of most of Statement of Claim meant that the remainder failed to disclose a reasonable cause of action and therefore had no reasonable prospects of success. 10 Section 16 of the Parliamentary Privileges Act is relevantly as follows: 16 Parliamentary privilege in court proceedings (1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section. (2) For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes: (a) the giving of evidence before a House or a committee, and evidence so given; (b) the presentation or submission of a document to a House or a committee; (c) the preparation of a document for purposes of or incidental to the transacting of any such business; and (d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published. (3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of: (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament. 11 The primary judge said, at [36], that the construction of s 16 was not at the heart of the issues for the Court's present determination and that the issues were more factual in nature. We agree. The question is whether the impugned conduct of Mr Heerey and the Minister were "acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House". A more specific question was whether the report was prepared "for purposes of or incidental to the transacting of any such business", although we observe that those words from s 16(2)(c) do not limit the generality of the words we have earlier quoted: "acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House". 12 The primary judge first considered, at [44] and following, Mr Heerey's purpose. 13 The primary judge said, at [51], that inferences as to Mr Heerey's purpose could be drawn from the letter by which the Minister appointed him to make the inquiry (including the attached terms of reference) and the report which Mr Heerey provided in response. In addition, inferences could be drawn from the circumstances more generally in which Mr Heerey was appointed and which existed while he was carrying out his inquiry and report. 14 Important to Mr Heerey's purpose was the Minister's letter of appointment to him dated 19 October 2015 which included the following: Dear Mr Heerey Instrument of Appointment - Inquiry into Complaints about Vice President Lawler As Minister with portfolio responsibility for the Fair Work Commission (FWC) I am writing to appoint you to inquire into and report on complaints about the Hon Michael Lawler, Vice President of the FWC, and related issues. The terms of reference for the inquiry are attached to this letter. I am informed that you have had the opportunity to review these terms. I would appreciate your report to me on the matters set out in the terms of reference by Friday, 11 December 2015 but please let me know if you consider that more time is required to complete the inquiry [and] report. Vice President Lawler was appointed to the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (WR Act) in 2002 and holds the status of a Federal Court Judge. His appointment subsequently transferred to the FWC and his WR Act terms and conditions of appointment were preserved by Schedule 18 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. … 15 It is, in our opinion, important to note the references to the basis of the appointment of Mr Lawler as Vice President of the Fair Work Commission because this relates to any ground or grounds for his removal. As found by the primary judge, Mr Lawler had been appointed to the Australian Industrial Relations Commission under the Workplace Relations Act 1996 (Cth). On the commencement of the Fair Work Act on 1 July 2009, Vice President Lawler had become a member of the Fair Work Commission pursuant to Sch 18 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). By item 2 of that Schedule, a Vice President of the Australian Industrial Relations Commission, such as Vice President Lawler, held office under the Fair Work Act on the same terms and conditions as attached to his appointment under the Workplace Relations Act. The respondents took the view that Vice President Lawler's existing terms and conditions of appointment had been preserved by that Schedule. This meant that it was s 82 of the Workplace Relations Act which governed his removal from office. Section 82 provided: The Governor-General may remove a Presidential Member from office on an address praying for removal on the grounds of proved misbehaviour or incapacity being presented to the Governor-General by both Houses of the Parliament in the same session. 16 The Minister's letter to Mr Heerey stated the terms of reference for the inquiry and report as follows: The inquiry should consider: 1. matters raised in Ms Jane Carrigan's complaints to the Minister for Employment of 6 July 2015 and 9 July 2015 about Vice President Lawler and about the Fair Work Commission's management of her initial complaint to the President of the Fair Work Commission. 2. the processes of the Fair Work Commission to investigate complaints and allegations made against members of the Commission, including those appointed under previous workplace relations legislation. 3. the circumstances of Vice President Lawler's absence from duty at the Fair Work Commission during 2014 and 2015 including, but not limited to, the reasons behind the specific leave taken by Vice President Lawler that are related to the Fair Work Commission. 4. any actual or perceived conflicts of interest on the part of Vice President Lawler that may affect the standing of the Fair Work Commission, and the appropriateness of any process in the Commission to manage such conflicts. 5. whether there is a reasonable basis for both Houses of Parliament to consider requesting the Governor-General to remove Vice President Lawler from the Fair Work Commission on the grounds of proved misbehaviour or incapacity. 6. any other matters considered relevant. 17 The primary judge said, at [54], that the terms of reference considered as a whole made it apparent that item 5 was to be addressed by Mr Heerey having regard to his assessment, amongst other things, of the subject matter of items 1, 3 and 4, each of which concerned, to at least some extent, the conduct of Vice President Lawler. We agree. 18 As to Mr Heerey's report, the primary judge referred in particular to [21], [72], [370] and [380] of the redacted copy. The primary judge expressed the view that the conclusions were suggestive of Mr Heerey preparing and providing his report for the consideration of the Parliament and not just the Minister. Again, we agree. 19 The primary judge then referred to statements by the Minister, in particular as to her intention to table Mr Heerey's findings in the Senate at the appropriate time. 20 The primary judge expressed his conclusions in relation to Mr Heerey's purpose at [69]-[71], as follows: In my opinion, these matters warrant the conclusion that Mr Heerey provided his report with the knowledge and intention that it could, and in all probability would, be used by each House of Parliament in considering whether or not to make a recommendation to the Governor-General concerning the termination of Vice President Lawler's office as Vice President of the FWC. Further, Mr Heerey had no other purpose in preparing his report. These conclusions arise from the following matters in particular when considered in combination: (a) Vice President Lawler occupied an office from which he could be removed by the Governor-General only on an address from both Houses of the Australian Parliament praying for his removal on grounds of proved misbehaviour or incapacity; (b) Vice President Lawler's conduct had by the second half of 2015 attracted considerable public attention, including attention in the Senate and action to bring about his removal from office was contemplated; (c) Mr Heerey had been appointed to inquire into, and report on, aspects of Vice President Lawler's conduct and particularly as to whether there was a reasonable basis on which both Houses of Parliament could consider requesting the Governor-General to remove Vice President Lawler from his office in the FWC; (d) the person who appointed Mr Heerey was the Minister with the responsibility for the administration of the FW Act; (e) the Minister had stated publicly her intention to table Mr Heerey's report in the Parliament; (f) Mr Heerey did address the terms of reference and addressed specifically whether there were reasonable grounds upon which the Houses in the Australian Parliament could consider requesting the Governor-General to remove Vice President Lawler from his office; (g) the public interest concerning the matter and the Minister's statements made it almost inevitable that Mr Heerey's Report would be provided to, and used by, the Parliament; and (h) Mr Heerey can be taken to have known of these matters. There is no indication that Mr Heerey prepared his report for a more confined purpose such as that for which Ms Carrigan contends, namely, simply to provide advice to the Minister for her consideration in relation to the issues raised by Vice President's Lawler's conduct more generally. Accordingly, I conclude that the Heerey Report, when prepared and thereafter is a "proceeding in Parliament" for the purposes of s 16(2) of the PP Act. 21 Later in his reasons, his Honour considered the Minister's conduct and held, at [73], that the Minister's conduct in tabling the report was conduct "in the course of, or for the purposes of or incidental to, the transacting of the business of [the Senate]". 22 The primary judge concluded, at [74], that the conduct of Mr Heerey in preparing and providing his report and the conduct of the Minister which the applicant wished to impugn in the proceedings were both within the description of "proceedings in Parliament" as that expression is defined in s 16(2) of the Parliamentary Privileges Act. So also was the action of the first and third respondents in causing the publication of the redacted report, after its tabling in the Senate. 23 At [75]-[77], the primary judge concluded that the applicant sought to adduce evidence of the conduct of Mr Heerey and the Minister "by way of, or for the purpose" of a matter specified in s 16(3) of the Parliamentary Privileges Act. This was because the applicant intended that the Court should draw inferences or conclusions concerning Mr Heerey's preparation of his report which would result in it being declared to be void and of no effect. She intended that the Court should draw inferences or conclusions concerning the tabling of the report by the Minister and sought an order from the Court that the Minister correct the records of the Commonwealth and of the Parliament. Orders to this effect would infringe the principle of non-intervention (as referred to in Prebble v Television New Zealand Limited [1995] 1 AC 321 at 334). The primary judge said, at [77]: Accordingly, the prohibition contained in s 16(3) of the PP Act is engaged. In fairness to Ms Carrigan, she recognised that, if the conduct of Mr Heerey and of the Minister which she wishes to impugn is within the term "proceedings in Parliament", this conclusion would follow. 24 In our opinion, no error has been shown in the conclusions of the primary judge as to Mr Heerey's purpose. Indeed, not only does that conclusion follow from the circumstances set out by the primary judge, but also from the affidavit of Benjamin Ross Davies sworn 22 July 2016 which was read before the primary judge. That affidavit stated, at [19], that the primary objective in appointing Mr Heerey to inquire and report was to obtain a considered report from a suitably experienced person as to whether the various concerns and complaints about Mr Lawler were sufficiently serious to warrant both Houses of Parliament considering an address praying for his removal. This was raised for consideration by terms of reference 1, 3, 4, 5 and 6. We also refer to [21]-[26] of the same affidavit which set out the Minister's intention to use the report to inform and assist the Parliament in one or both of two ways. The first way was that, if it appeared the removal was warranted and appropriate, the report would provide both Houses of Parliament with a detailed and authoritative basis on which to consider a prayer for removal. Secondly, and in any case, the report would provide Parliament with a considered and detailed understanding of the complaints and concerns that had attracted the significant Parliamentary and public interest in Mr Lawler's behaviour and capacity. 25 We note the applicant's submission that she was not able to cross-examine Mr Davies (because of his ill-health), but the matters she indicated she wished to cross-examine him on do not appear to us to affect the matters of fact to which he deposed. Indeed it was not clear to us that the applicant ultimately maintained that she had been disadvantaged in this respect. 26 We next consider the individual grounds of appeal, which we have set out at [8] above. 27 As to ground 1, the primary judge referred, at [42], to the cautious approach necessary on applications pursuant to s 31A of the Federal Court of Australia Act and referred specifically to Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [24]-[27]. We do not accept the claim that the primary judge failed to follow or misapplied the relevant test. We do not accept the submission that the primary judge "did not really turn [his] mind in a substantive way to the case of Spencer." 28 In light of the issue on which the summary judgment application turned, we do not accept the applicant's submission that the primary judge "failed to consider the disadvantage suffered by the [applicant] in not having the interlocutory application for summary dismissal or strike out heard concurrently with the originating application for judicial review, a process which would have been subject to the usual interlocutory application such as discovery." In our opinion, the primary judge assumed that the matters pleaded by the applicant were, if consistent with the Parliamentary Privileges Act, correct for the purposes of the interlocutory application. There was no disadvantage to the applicant. 29 We do not accept that the primary judge was disadvantaged by not seeing the first and third respondents' draft defence, prepared, we assume, against the circumstance that their submissions based on the Parliamentary Privileges Act failed. The draft defence was not in evidence before us. The applicant sought to tender the draft defence but we refused to permit that tender given that the draft defence was not before the primary judge. We do not accept that the applicant was disadvantaged by the primary judge not seeing the draft defence. 30 As to ground 2, we see no error in the conclusion of the primary judge in relation to purpose. Neither do we see any error in the conclusion of the primary judge that s 641A of the Fair Work Act was not relevant in light of the transitional provisions applicable to Vice President Lawler by virtue of the date of his appointment and the terms of the Fair Work (Transitional Provisions and Consequential Amendments) Act. The effect of this was that it was s 82 of the Workplace Relations Act which applied, as the primary judge held at [22]. 31 As to ground 3, as we have said, we see no error in the conclusion of the primary judge in relation to purpose. The relevant purpose was whether there should be an address praying for the removal of Vice President Lawler on the grounds of proved misbehaviour or incapacity, that address being presented to the Governor-General by both Houses of the Parliament in the same session. We reject the claim that the primary judge misdirected himself as to the weight to be given to the expression "the transacting of the business of a House" within the meaning of s 16(2) of the Parliamentary Privileges Act. 32 As to ground 4, in our opinion it was not a matter for the Court "to consider how the harm caused by s 16(3) may otherwise be ameliorated." The primary judge found the facts in relation to purpose and, having correctly construed s 16, applied that provision to the facts as found by him. 33 As to ground 5, in light of the conclusions of the primary judge it was neither necessary nor appropriate for him "to acknowledge the Ministers' breaches of the appellant's privacy". To do so would be contrary to the terms of s 16(3) of the Parliamentary Privileges Act. It is not permissible to start with a view as to what protection was due to the appellant and thereafter to consider the terms of s 16: instead, the necessary and appropriate course for the Court is first to consider the applicant's claims and then to consider any application of s 16. This was the course taken by the primary judge. 34 As to ground 6, that the primary judge "erred when he accepted the Respondents' argument that the appellant's claim invoked the principle of non-intervention" (see [23] above), this ground raises no separate issue but falls with our other conclusions, especially in relation to ground 3. 35 As to ground 7, as we understand it the applicant did not and has not at any stage sought to articulate a case for relief which does not transgress the terms of s 16 of the Parliamentary Privileges Act. It is not relevant to the determination of the present application for leave to appeal that the primary judge referred, at [31] and [76], to consequential orders claimed by the applicant directing the Minister "to correct the official records". We return to a related issue at [47] below. 36 As to ground 8, there was no occasion for the primary judge "to determine the extent of the rights of procedural fairness attaching to the appellant in the circumstances pleaded…" As we understand it, the actions complained of by the applicant were in respect of the actions of Mr Heerey in the preparation of his report and the actions of the Minister in tabling the report. 37 As to ground 9, in our opinion this is misconceived. The primary judge had regard to the report of Mr Heerey so as to consider the purpose. It was not a matter of giving weight to that report. We do not understand the relevance of any long history of other parliamentary processes with respect to the removal of judges from office. We return to a related issue at [42] below. 38 In relation to the notice of contention, in our opinion the relevant purpose was common to both the Minister and Mr Heerey and the same result would follow from a consideration of the Minister's purpose. In other words, the Minister sought and obtained Mr Heerey's report for the requisite parliamentary purpose. We have referred at [24] above to the affidavit of Mr Davies. 39 It is not necessary to deal with the balance of the notice of contention but we note that the primary judge, at [78], said that had it been necessary to do so he would also have struck out the impugned paragraphs in the applicant's statement of claim. 40 We do not accept the applicant's submission that the absence of a certificate under s 17 of the Parliamentary Privileges Act had any bearing on what the primary judge was required to decide. A certificate signed by or on behalf of the President of the Senate, the Speaker of the House of Representatives or a chairman of a committee is, under that section, no more than evidence of the matters contained in the certificate. We do not therefore accept the applicant's submission that such a certificate "would have resolved the issue there and then." Absent a withdrawal of the proceedings by the applicant, the presence of such a certificate would not have absolved the primary judge from determining the question or questions of fact which arose. We do not accept the applicant's submission that the absence of a certificate under s 17 gave rise to a negative inference about the purpose of the respondents. 41 We do not accept the applicant's submission that the primary judge erred in construing s 16(2) of the Parliamentary Privileges Act by virtue of not giving sufficient attention to 16(1). We do not accept the submission that s 16(1) goes to establishing what transacting the business of the House is, for the purpose of the balance of s 16. That is not how s 16(1) is written. We have set out that provision at [10] above. 42 We do not accept the applicant's submission that, by reference to Amann Aviation Pty Ltd v Commonwealth of Australia [1988] FCA 24;19 FCR 223, the primary judge erred in the use he made of the contents of the report. In Amann Aviation, Beaumont J was considering a submission that for the Court even to read an extract from Hansard would be a breach of s 16(3) of the Parliamentary Privileges Act. It was in that context that his Honour said, at 232, that it was open to the court, without any breach of s 16(3), to look at the extract from Hansard on a de bene esse basis, that is, to receive it provisionally for the purpose of a temporary and conditional examination in order to enable the court to inquire whether the reception of the extract into evidence was, or was not, prohibited by s 16(3) as properly construed. We do not accept the submission that Amann Aviation prevented the primary judge from considering the terms of the report in order to form a view as to the purpose of Mr Heerey and the Minister in order to rule on the applicability of the Parliamentary Privileges Act. In our opinion, the expression "temporary and conditional examination" does not mean that the report may not be read according to its terms. 43 We do not accept the applicant's submission that whether or not the Parliament accepted the Heerey report per se affected the purpose of either Mr Heerey or the Minister. In our opinion, the fact that a report is not accepted by a House does not mean that the report is not covered by parliamentary privilege: in a case such as the present, what happens or may happen later does not detract from the purpose for which the report is prepared. 44 We do not accept the applicant's submission that what occurred in the Senate when the Minister tabled the report meant that the preparation of the report or the tabling of the report were not for the purposes referred to in s 16(2). We do not accept the dichotomy, for which the applicant contended, that the Minister, as a member of the executive, was acting only in that capacity in the House and was therefore not acting for a purpose within s 16(2). Similarly, we do not accept the applicant's argument that the Minister's act was an executive act rather than proceedings in Parliament and, as we understood it, that therefore the preparation of the report and the tabling of it was not for a purpose referred to in s 16(2). That, from the applicant's perspective, the process began, in whole or in part, by a complaint by her does not colour what thereafter occurred or detract from the purpose of the preparation and tabling of the report as found by the primary judge. 45 We do not accept the applicant's submission to the effect that some non-parliamentary purpose can be discerned from what did or did not occur in Parliament or from what was said in Parliament in the examples to which the applicant took the Court. 46 We do not accept the applicant's submission that the resignation of Vice President Lawler before the tabling of the report meant that the primary judge erred in his finding of the purpose of the preparation of the report. In our opinion, that the report and the tabling the report were no longer necessary for the direct purpose of s 82 of the Workplace Relations Act (for an address praying for removal of Vice President Lawler on the grounds of proved misbehaviour or incapacity being presented to the Governor-General by both Houses of the Parliament) did not mean that that purpose had ceased to apply to the report. 47 We do not accept the applicant's submission to the effect that the exercise of the primary judge's discretion miscarried because she could have re-pleaded her case to claim a declaration that the report be set aside in so far as it affected her. In our opinion, the same difficulty with the Parliamentary Privileges Act would remain. 48 In our opinion, the decision of the primary judge is not attended with sufficient doubt to warrant its being reconsidered by the Full Court and we would refuse leave to appeal. The applicant should pay the costs of the first and third respondents. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Dowsett, Besanko and Robertson.