CEO of Customs v Au

CATCHWORDS: PROCEDURE - Double jeopardy - Autrefois acquit - Res judicata - Opponent charged with offences under Customs Act 1901 - Charges withdrawn before opponent called upon to plead - Charges recorded by Magistrate as "Withdrawn, dismissed" - No judicial determination of charges on merits - Proceedings subsequently instituted by way of statement of claim alleging same offences subject of original charges - Whether doctrine of autrefois acquit precluded subsequent proceedings - Justices Act 1902 s 80

Customs Act 1901 (Cth) LEGISLATION CITED: Justices Act 1902 Family Law Act 1975

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Limited (2003) 216 CLR 161 R v Phipps; Ex parte Alton [1964] 2 QB 420 Lawson v Wallace [1968] 3 NSWR 82 R v Galvin (No 2) [1961] VR 740 CASES CITED: Broome v Chenoweth (1946) 73 CLR 583 The Queen v Reynhoudt (1962) 107 CLR 381 Barnes v Gougousis [1969] VR 1019 Callahan v Broomham (1996) 68 IR 66 Zaravinos v Houvardas [2004] NSWCA 421

Chief Executive Officer of Customs PARTIES: John Martins Au

A: Australian Government Solicitor, Sydney SOLICITORS: R: Lloyd Truman Sadiq, Sydney

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41207/04 SC 40887/04

SHELLER JA TOBIAS JA BROWNIE A-JA

Thursday 21 April 2005 CHIEF EXECUTIVE OFFICER OF CUSTOMS v AU Judgment 1 SHELLER JA: I agree with Tobias JA. 2 TOBIAS JA: The claimant seeks the leave of this Court to appeal against an order made by Shaw J on 16 September 2004 dismissing its statement of claim filed in the Common Law Division of the Supreme Court on 26 April 2002. The statement of claim charged the opponent with offences under s 233(1)(a), s 234(1)(a) and s 234(1)(d)(i) of the Customs Act 1901 (Cth) (the Act). 3 The claimant sought the opponent's conviction in respect of each of those offences and an order that he pay to the claimant a substantial monetary penalty. The appeal has been heard concurrently with the application for leave.

The background history of the proceedings 4 On 2 March 2001 the opponent was arrested and charged with the very same offences with which he was charged in the statement of claim. The charges were preferred in Liverpool Local Court by way of information only: the opponent was not served with a summons to appear. The informant was John Alexander Mansfield who, I infer, was an officer of the Australian Customs Service. On 23 March 2001 the proceedings were transferred to the Local Court at the Downing Centre. They were mentioned on 28 March 2001 before Magistrate Sweeney who ordered that the prosecution's Brief of Evidence be served on the opponent by 1 May 2001. The proceedings themselves were adjourned to 8 May 2001 for further mention. 5 On 30 April 2001, the claimant's solicitor telephoned the opponent's solicitor advising that the informant proposed to withdraw the charges the subject of the informations. That was confirmed in a letter from the Australian Government Solicitor to the opponent's solicitors dated 1 May 2001. 6 On 8 May 2001 the proceedings came before Magistrate Stapleton. She was informed that the charges were to be withdrawn. I shall return in more detail to the course of events before the learned Magistrate later in these reasons. After some discussion between the legal representatives of the parties and the Magistrate, the latter said that she would "mark each of the papers withdrawn and dismissed." 7 The Magistrate then wrote on each charge sheet after the printed word "ORDERS" the following: (1) Withdrawn and dismissed. (2) Costs reserved. (3) Defendant's passport to be available for collection.

She then signed her name to each charge sheet and dated it. 8 By consent the Magistrate also made a number of directions with respect to the filing of evidence on the outstanding question of costs. Argument on that question was adjourned to 3 July 2001. 9 Although it does not appear in the material before this Court, we were informed from the Bar table that ultimately the learned Magistrate made an order that the informant pay the opponent's costs of the proceedings in the Local Court. 10 As I have indicated, on 26 April 2002 the claimant instituted proceedings by way of statement of claim against the opponent in which it charged the opponent with the very same offences which had been the subject of the informations in the Local Court. On 7 October 2003 an Amended Defence was filed by the opponent pursuant to leave granted by Master Malpass on 3 October 2003 and which, under the heading "Res Judicata & Issue Estoppel" pleaded the following: "19. On 2 March 2001 the defendant was arrested and charged with an offence of 'smuggle goods' pursuant to section 223(1)(a) of the Customs Act 1901 ('the first charge'). 20. On 2 March 2001 the defendant was arrested and charged with an offence of 'evade payment of duty which is payable' pursuant to section 234(1)(a) of the Customs Act 1901 ('the second charge'). 21. On 2 March 2001 the defendant was arrested and charged with an offence of 'False/misleading statement re duty payable on goods' pursuant to section 234(1)(d)(i) of the Customs Act 1901 ('the third charge'). 22. On 8 May 2001 Magistrate Stapleton dismissed the first charge, the second and the third charge. 23. On 26 April 2002 the plaintiff filed a Statement of Claim in the Supreme Court seeking to convict the defendant of the first charge, the second charge and the third charge and penalties for such convictions. 24. The defendant claims that the proceedings brought by the Statement of Claim are an abuse of process as they are subject to the principle of res judicata and/or issue estoppel." 11 On 3 October 2003 the claimant filed a Reply to the Amended Defence in which it admitted paragraphs 19, 20, 21 and 23, denied paragraph 24 and, in paragraph 2, pleaded with respect to paragraph 22 of the Amended Defence that on 8 May 2001 the informant applied to Magistrate Stapleton to withdraw the charge which application was granted with the consequence that the Magistrate marked the court record "Withdrawn, dismissed" in respect of each of the charges. The pleading then alleged that the charges could not be dismissed and were not in fact dismissed and, relevantly, that the withdrawal of the charges did not raise either an issue estoppel, res judicata or autrefois acquit. 12 On 9 October 2003 the claimant filed a notice of motion seeking leave to file and serve an amended statement of claim. The proposed amendment added a claim said to arise out of the Local Court proceedings and mirrored the Reply. It claimed a declaration that the charges in the Local Court were not dismissed or, if they were, an order in the nature of certiorari setting aside Magistrate Stapleton's order dismissing the charges. 13 The following matter was then referred to the primary judge for determination: (a) The separate determination of the issues raised by (i) the amendments made to the defence on 3 October 2003; (ii) paragraph 2 of the Reply. (b) The claimant's notice of motion filed on 9 October 2003 for leave to amend its statement of claim and, if that leave be granted, the separate determination of the matters raised by the proposed amendments.

The decision of the primary judge 14 The primary judge noted that the essential question before him was a separate issue as to whether the resolution (to use a neutral term) of the Local Court proceedings had resulted in the claimant being prevented from pursuing the allegations in the statement of claim as a consequence of the application of the doctrines of res judicata, issue estoppel and/or abuse of process. His Honour noted that before Magistrate Stapleton on 8 May 2001, the informant had sought leave to withdraw the charges, the opponent had consented to that application and the Magistrate had marked the papers "Withdrawn, dismissed" in relation to each charge. The question that therefore arose was whether the proceedings the subject of the statement of claim could be brought again in the Supreme Court to prosecute what were essentially the same allegations as were before the Local Court and which were the subject of orders of that Court. 15 After referring (at [6]) to the nature of a Customs prosecution as being proceedings for the recovery of penalties under the Act, and noting (at [9]) that the High Court in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Limited (2003) 216 CLR 161 had not characterised such proceedings as either criminal or civil, his Honour then summarised (at [11]) his understanding of what had occurred before the Magistrate on 8 May. His Honour then observed (at [12]): "It is reasonably clear from the authorities that the mere withdrawal of an information or complaint does not preclude subsequent proceedings based upon the same allegation. However, the 'dismissal' of the proceedings before a court of competent jurisdiction might, arguably, lead to res judicata or issue estoppel and/or abuse of process if some subsequent proceedings based on precisely the same facts and circumstances were to be alleged in the same or another court." 16 The issue with which the primary judge then grappled was whether there had been a "dismissal" which would, in the circumstances of the present case, lead to a valid defence to the statement of claim based on res judicata, issue estoppel and/or abuse of process. 17 The primary judge considered (at [13]) the power of the Magistrate to dismiss the informations. His Honour accepted that there was such power under s 80 of the Justices Act 1902 which was in the following terms: "After hearing what each party has to say and the witnesses and the evidence adduced, the said Justice or Justices shall consider and determine the whole matter, and convict or make an order upon the defendant or dismiss the information or complaint, as the case may require." 18 The question which then arose, according to his Honour (at [15]), was whether there had been a "hearing" within the meaning of s 80 of the Justices Act. His Honour considered (at [16]) that there had although he accepted that there had been no hearing on the merits because the procedural course taken was by consent. He considered that as the parties had appeared with their legal representatives and put to the Magistrate what they desired to do and say, that was sufficient to constitute a "hearing" and the fact that no witnesses were called was legally irrelevant. Accordingly, he concluded that the substance of the matter was that there had been a hearing. It followed that the Magistrate had the power to dismiss the informations pursuant to s 80. 19 As, in his Honour's opinion, there had been a dismissal of the proceedings, he considered (at [19]) that there was "at least an arguable case of double jeopardy", a question to which he then turned. 20 Having noted that s 80 of the Justices Act did not refer to a requirement of a hearing "upon the merits", his Honour said (at [22]): "Hence, it seems to me that there was a hearing and that there was a dismissal of the information itself (not merely a dismissal of the summons) and that therefore the matter was finally disposed of in a court with the requisite jurisdiction." (original emphasis) 21 The primary judge then referred to passages from the judgment of Lord Parker CJ in R v Phipps; Ex parte Alton [1964] 2 QB 420 at 428-9 and to observations by Asprey JA in Lawson v Wallace [1968] 3 NSWR 82 at 86. The latter was a case where the magistrate had marked the papers "Complaint withdrawn … dismissed". Because what had been dismissed was the summons and not the information, the Court of Appeal in Lawson held that no question of res judicata or issue estoppel arose. However, Asprey JA said (at 86), and his Honour cited, the following: "When a complaint is withdrawn, the effect in law is that the complainant has ceased to assert any matter against the person named in the complaint and, there being no longer any subject matter which, by the summons, the defendant has been commanded to answer, the summons may be dismissed. Where, however, the complaint itself is dismissed there has been an adjudication that the subject-matter of the complaint has not been established." 22 After discussing a number of authorities including Phipps, Asprey JA continued (at 86) (omitting citations) in a passage also cited by the primary judge (at [26]): "Where an information has been laid and the proceedings are of a criminal nature and the prosecution does not desire to proceed, the defendant may be in a stronger position to object to the granting of leave for the withdrawal of the information and may successfully insist upon its dismissal so that he has the benefit of acquittal. Where, as here, the complaint is allowed to be withdrawn there is no adjudication or determination of any of the matters the subject of the complaint and the dismissal of the summons merely relieves the defendant from any obligation to appear at the Court because there is no longer anything for him to answer." 23 The primary judge then expressed his conclusion in the following terms (at [28]): "I appreciate that the discussion of the dismissal of the information in the Local Court was in the context, it seems, of consequences as to costs. Nonetheless, it seems to me that I should focus upon the formal order of the court below which was quite expressly and in an unqualified way to dismiss the information, not merely the summons (of which there was none) and that I should accept the consequences of that curial order as precluding the bringing of a further action based, it is conceded, on essentially the same grounds and facts in this Court. Accordingly, I would find that there is either a res judicata, an issue estoppel or an abuse of process or all of these which precludes the statement of claim going forward in this Court. It follows that I should dismiss the statement of claim and order that the plaintiff pay the defendant's costs of these proceedings."

The claimant's submissions 24 The claimant's submissions were essentially two-fold. Firstly, it submitted that Magistrate Stapleton had no power to order that the informations be dismissed. The informant had made an application for, in effect, leave to withdraw the informations and this had been consented to by the opponent. There was therefore no occasion to order that the informations be dismissed and, as there had been no true adjudication of the matters discharged, she had no power to make any such order. It was submitted that the words in s 80 "after hearing what each party has to say and the witnesses and the evidence" the Magistrate shall "consider and determine the whole matter" and then only convict the defendant or dismiss the information, when read in the context of ss 77, 78, 78A and 79, make it clear that an order for dismissal under s 80 could only be made after there had in fact been an adjudication upon the subject matter of the complaint. Alternatively, and as often occurs, the defendant pleads not guilty to the charges and the informant offers no evidence. An order for dismissal would be within the Magistrate's power in such a case. However, that did not occur in the present case. 25 Secondly, the claimant submitted that what occurred in the present case was that the order for dismissal of the informations was made merely to ensure that the Local Court retained jurisdiction to deal with the opponent's application for costs of the proceedings in that court. There had been no adjudication on the merits, no admission by the informant that he was unable to prove the charges and no consent on the part of the informant that the informations should be dismissed upon the basis that that would be an end of the matter. In fact, the contrary was the case, as I will now seek to demonstrate.

The course of the proceedings before Magistrate Stapleton on 8 May 2001 26 The transcript of the proceedings before Magistrate Stapleton makes it clear that the only reason she ordered that the informations be not only withdrawn but also dismissed was to keep alive her power to make an order for costs. So much was acknowledged by the primary judge in the first sentence of [28] of his judgment which I have extracted in [23] above. 27 Thus, on page 2 of the transcript, Mr Horler QC, senior counsel for the opponent, said: "I think what is proposed today, and that would meet our approval, is that the Commonwealth will withdraw all of the three charges that I have identified and particularised, be withdrawn (sic) and dismissed keeping alive our claim for costs and that we come back later this week in order to argue the question of costs and our entitlement and the amount of those costs." 28 On page 5 Mr Horler QC said: "What is proposed is a course of conduct, that I don't understand the prosecutor objects to, that he withdraw the charges and we come back and argue the costs on another day." 29 I interpolate that Mr Horler QC alleged, and the solicitor for the informant denied, that there had prior to May 2001 been an agreement between the solicitors for the respective parties whereby the informant agreed to pay the opponent's costs of the Local Court proceedings. Mr Horler QC wished to establish that agreement or, alternatively, if he could not or otherwise the Local Court had no power to enforce it, he wished to apply pursuant to s 81 of the Justices Act for an order that the informant pay the opponent's costs. That section empowers a magistrate, in the case of an order of dismissal, to order the prosecutor to pay the defendant's costs in such amount as seems just and reasonable. 30 The learned Magistrate appreciated as much for she observed (at page 5 of the transcript) that if there was no such agreement as alleged by the opponent, the question arose as to whether the provisions of s 81 applied to permit the defendant to have a costs order in his favour. The solicitor for the informant acknowledged that the only issue between himself and Mr Horler was whether or not s 81 applied. 31 After further discussion, the learned Magistrate said that she proposed to make directions regarding the service of affidavits in relation to the question of costs. The following exchange then took place (transcript p10): "BENCH: … And I take it then, Mr Vorreiter [solicitor for the informant], that I can note the papers that each of the charges are withdrawn? VORREITER: All three are withdrawn yes. HORLER: Sometimes there was a formula 'withdrawn and dismissed', your Worship. It may be surplusage, I don't know, but … BENCH: I beg your pardon, it may be? HORLER: Withdrawn and dismissed, sometimes that was the language that used to be used. BENCH: I suppose that prevents them from being brought again Mr Horler. VORREITER: No, it doesn't. BENCH: It doesn't? VORREITER: No, because there has never been a hearing on the merits. BENCH: I will mark each of the papers withdrawn and dismissed. HORLER: And in case there is any jurisdictional problem, which I doubt, all questions of costs reserved."

Did the primary judge err? 32 In my opinion, it is clear from the course of the proceedings before Magistrate Stapleton on 8 May 2001 that, firstly, there was never any adjudication of the charges on their merits; secondly, the opponent consented to the charges being withdrawn; thirdly, it was made clear by the solicitor for the informant that it was not intended that the use of the formula "withdrawn and dismissed" should prevent the charges being brought again; fourthly, this was accepted (at least inferentially) by senior counsel for the opponent who, fifthly, was only concerned with the marking of the papers as dismissed to ensure that the opponent's claim for costs of the Local Court proceedings was kept alive after the charges were withdrawn, there being no summons which could be dismissed to form the jurisdictional foundation for an order for costs in the opponent's favour. 33 Although the opponent's amended defence to the statement of claim asserted that the effect of the dismissal of the informations was to give rise to res judicata, issue estoppel and/or abuse of process, it is clear (and the opponent accepted at the hearing of the appeal) that in the circumstances no question of issue estoppel or abuse of process could arise. So far as res judicata was concerned, it was also accepted that upon the basis that the proceedings in the Local Court were criminal proceedings, the civil law concept gave way to the more appropriate defence of autrefois acquit. 34 In the context of the foregoing, the claimant relied upon the decision of the Full Court of Victoria (comprising a Bench of five judges) in R v Galvin (No 2) [1961] VR 740. In that case the applicant was charged on two informations with assaulting a member of the police force in the execution of his duty and resisting a member of the police force in the execution of his duty. When the matter came on for hearing the applicant was not called upon to plead to either charge. On the application of the informant the charge for assault was withdrawn but as the informant stated to the magistrate that he had no instructions as to what application he should make with respect to the resisting charge, the magistrate said he would dismiss the charge and the court reporter recorded the decision as "dismissed". In the meantime, the appellant had been charged before the Court of General Sessions with having assaulted, resisted or wilfully obstructed a member of the police force in the execution of his duty. A jury found him not guilty of assault but guilty of resisting. The question that arose was whether the dismissal of the charge of resisting by the magistrate was a bar to the applicant's conviction in the Court of General Sessions on the same charge. No plea of autrefois acquit was made at the trial but only after the guilty verdict was the matter raised. Nevertheless, the Full Court dealt with the issue in a manner particularly relevant to the present case. 35 In their joint judgment, O'Bryan, Dean and Hudson JJ (with whom on this point the dissenting judges Barry and Sholl JJ agreed) held that the applicant could not have successfully availed himself of the plea of autrefois acquit even if he had raised the plea when arraigned. They said (at 743): "Undoubtedly the information was 'dismissed' before issue had been joined between the parties. The applicant was never called upon to plead to the charge contained in the information and the trial of his guilt or otherwise of the offence charged was never commenced. The withdrawal of the information or its purported 'dismissal' by the magistrate for that reason does not operate as an autrefois acquit ." 36 Their Honours then referred to the decision of the High Court in Broome v Chenoweth (1946) 73 CLR 583 and in, particular, to the following passage from the judgment of Dixon J (at 599): "The rule against double jeopardy requires for its application not only an earlier proceeding in which the defendant was exposed to the risk of a valid conviction for the same offence as that alleged against him in the later proceedings but that the earlier proceeding should have resulted in his discharge or acquittal. This last requirement may be satisfied by something less than an actual adjudication upon the truth of the allegations contained in the charge or upon the existence of some exculpatory fact. It may be enough if the judgment or order pronounced in favour of the person who stands in jeopardy must, according to its legal construction, imply a failure upon the part of the prosecution to make out the charge or some ingredient therein or even a preliminary condition legally indispensable to a conviction, that is if the condition is of a kind that cannot be fulfilled after the failure of the earlier charge and before the laying of the later charge. In the present case the proceedings had advanced to a stage when it became incumbent upon the prosecutor to support his information by proof, or evidentiary presumption, in order to avoid a dismissal. That being so, I see no reason why the actual order dismissing the information, although expressed to be for want of prosecution, should not amount to a sufficient discharge affording a bar to further prosecution, if the other requirements are satisfied upon which a defence of prior acquittal depends." 37 In their joint judgment, their Honours considered that the words "the proceedings had advanced to a stage when it became incumbent upon the prosecutor to support his information by proof, or evidentiary presumption, in order to avoid a dismissal" in the above passage referred to the fact that the applicant had answered and pleaded to the information and was thereby placed in jeopardy and was in the hands of the Court. They continued (at 744-5): "In the present case, however, the applicant never was in jeopardy of a conviction and there never was a hearing of any sort. The information was 'dismissed' before the process of adjudication was even entered upon. Whatever expression was used by the magistrate to dispose of the case, the applicant's position resembles a case in which the Attorney-General has entered a nolle prosequi before the defendant is called upon to plead. Such a course does not operate as a bar to further prosecution for the same offence on the same facts." 38 Although the decision in Galvin was overruled by the High Court in The Queen v Reynhoudt (1962) 107 CLR 381, the disapproval of the High Court did not relate to that part of the Full Court's judgment with which I am presently concerned and which has been applied in a number of cases since: see Barnes v Gougousis [1969] VR 1019 at 1022; Callahan v Broomham (1996) 68 IR 66 at 70. 39 The decision on the issue of autrefois acquit in Galvin is consistent with the commentary in Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed para 308 where it is pointed out that for the plea to succeed there must have been in substance an acquittal on the merits. The learned authors deal with the nature of such an acquittal in [231] in the following terms: "It [the plea of autrefois acquit ] will not apply unless the first proceeding was a prosecution on a criminal charge which terminated in favour of the accused. However, not every termination will support the plea. Thus the discharge of a jury before verdict is not an acquittal nor is the withdrawal of a summons. There must in substance have been an acquittal on the merits. It is essential that the defendant was in jeopardy on the prior charge. Thus the hearing of the earlier proceedings must have commenced either by a plea in summary proceedings or by the accused being put in charge of the jury in a trial on indictment. If thereafter a charge or count is dismissed, albeit without a hearing on the merits, the prosecution may not institute fresh proceedings on the same or an essentially similar charge or count. This may depend on the court's power to prevent an abuse of process rather than on the plea of autrefois acquit . If the summary dismissal of a charge or count occurs because it is defective, the defendant will never have been in jeopardy. In particular, a consensual dismissal of an original charge upon the substitution of a new one will not support a plea of autrefois acquit . The Supreme Court of Canada has held that a stay of proceedings for abuse of process is equivalent to an acquittal on the merits." 40 It is clear from the foregoing, and was ultimately conceded by counsel for the opponent, that on the basis of the decision in Galvin, it was not open to the opponent to plead autrefois acquit as a defence to the charges set forth in the statement of claim. Furthermore, even if one were to apply the principles of res judicata, as with autrefois acquit the same result would follow. Recently, this Court in Zaravinos v Houvardas [2004] NSWCA 421 dealt with a case where the respondent made an application to the Local Court under the Family Law Act 1975 seeking, inter alia, a declaration that the transfer of certain properties was void. Having been advised that the application was not "correct", the applicant filed consent orders that the applications be withdrawn and dismissed. He then instituted proceedings in the Equity Division of the Supreme Court seeking the same relief as had been sought in the Local Court. It was submitted in those proceedings that the dismissal by the Local Court of the applications commenced by the applicant under the Family Law Act constituted a res judicata estopping him from instituting the equity proceedings. 41 This issue was dealt with by Sheller JA, with whom Handley and Ipp JJA agreed, in the following terms (at [65]): "The withdrawal and hence dismissal of a claim for reason that the relief sought was thought to be beyond the jurisdiction of the tribunal is not res judicata . Res judicata is founded upon judicial determination upon the merits or by admission or consent. Withdrawal of an application to a court for the reasons stated here is the antithesis of a judicial determination. The dismissal flows from the withdrawal and not from any judicial determination arrived at on the merits or by admission or consent: see generally, Res Judicata, Spencer Bower Turner & Handley, 3rd ed, para 31-33." 42 As I have already noted, the course of proceedings before Magistrate Stapleton did not involve any form of judicial determination arrived at on the merits: nor did the informant consent to the dismissal of the informations as if on the merits. As in Galvin, the opponent was never called upon to plead to the charges contained in the informations and the trial of his guilt or otherwise of the offences charged was never commenced. The informant sought to withdraw the informations and the opponent consented thereto. The order dismissing the informations was purely for the purpose, possibly agreed to by the informant and certainly sought by the opponent, of preserving the Local Court's jurisdiction to deal with the question of costs. That was its only purpose. As it turned out, the Local Court's power to order costs in favour of the opponent was not dependant upon s 81 of the Justices Act or upon any order dismissing the informations but rested on the provisions of s 263 of the Act. 43 It follows from the foregoing that the primary judge erred when he disregarded the context in which the informations were dismissed and which he acknowledged as relating to the question of costs. No proper basis existed to justify his finding that a res judicata, an issue estoppel or an abuse of process precluded the claimant from proceeding in the Supreme Court pursuant to its statement of claim. However, it must be pointed out that his Honour was not assisted by being referred to the decisions in Galvin or Zarovinos (the latter of which, of course, had not then been decided). If he had, he may have been led to a different conclusion.

Conclusion 44 In my opinion the following orders should be made: (1) Grant leave to appeal. (2) Appeal allowed. (3) Set aside the orders made by Shaw J on 16 and 17 September 2004. (4) There be judgment for the claimant on the separate issue the subject of paragraph 2 of the claimant's Reply dated 3 October 2003. (5) The claimant's Notice of Motion filed on 9 October 2003 for leave to amend its Statement of Claim be dismissed. (6) The opponent to pay the claimant's costs of the Notice of Motion filed on 9 October 2003, the proceedings before Shaw J, summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified. 45 BROWNIE A-JA I agree with Tobias JA. **********

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