Clyne v NSW Bar Association

DECISION: 1. Leave to appeal granted with effect from 9 January 2007 so as to deem the appeal instituted that day to be competent; 2. Dispense with further compliance with the Rules; 3. Appeal dismissed; 4. No order as to costs; 5. Liberty to the Second Respondent to apply for a different order for costs within 14 days by lodging written submissions in the submissions box on Level 12 and serving a copy on the solicitors for the Appellants.

CATCHWORDS: APPEAL - APPEAL AS OF RIGHT - MONETARY THRESHOLD - NON-MONETARY ISSUES - ADOPTION - ADOPTION OF ADULT - BY STEP-PARENT - STATUTE - CONSTRUCTION - WHEN WORDS CAN BE IMPLIED

Adoption Act 2000 (NSW), ss24, 27, 28, 30, 95, Sch 3 LEGISLATION CITED: Adoption Amendment Act 2006 (NSW) , Sch 1 Family Law Act 1975 (Cth) Supreme Court Act 1970 (NSW), s 101

Clyne v NSW Bar Association (1960) 104 CLR 186 Cooper Brookes (Wollongong) Pty Limited v F C T (1981) 147 CLR 297 Jones v Wrotham Park Settled Estates [1980] AC 74 Kammins Ballrooms Co. Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 Laker Airways Ltd v Department of Trade [1977] QB 643 CASES CITED: Parrett v Secretary, Department of Family and Community Services (2002) 124 FCR 299 R v Young (1999) 46 NSWLR 681 Re DG and the Adoption Act 2000 [2006] NSWSC 968 Re Director-General, Department of Community Services (NSW), Adoption of DR by DCB and HMB (2000) 26 Fam LR 107 Re Lockwood [1958] Ch 231 Saraswati v R (1991) 172 CLR 1 Thornton v Brunsden (1956) 56 SR (NSW) 265

Demetrius James Galanakis PARTIES: Catherine Galanakis Diana Artemis Galanakis Director-General of DOCS

1st & 2nd Appellants - M. Anderson COUNSEL: 1st Respondent - M. Anderson 2nd Respondent - Ms M. England

1st & 2nd Appellants - Gwynne Thompson Solicitors SOLICITORS: 1st Respondent - Not legally represented 2nd Respondent - Crown Solicitors

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 968

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40642/06

SANTOW JA BASTEN JA HANDLEY AJA

Friday 14 September 2007 RE DG AND THE ADOPTION ACT 2000 APPEAL - APPEAL AS OF RIGHT - MONETARY THRESHOLD - NON-MONETARY ISSUES

The appellants, the step-father and mother of DG, a 35-year-old married woman, applied to adopt her. The primary judge rejected the application because of s. 30(b) of the Adoption Act 2000, as DB had not been living with the appellants for the required period immediately before the application was made. The appellants argued that words were implied in the subsection which would enable the order to be made.

HELD:

1. Section 101(2)(r) of the Supreme Court Act bars appeals as of right unless they satisfy the monetary threshold. An appeal which is not about money or property does not satisfy this condition and leave to appeal is required. Clyne v NSW Bar Association (1960) 104 CLR 186 applied.

2. Statutory language may read down but words cannot be omitted if they have an intelligible meaning. The Court could not omit the words "immediately before the application was made" in s. 30(b). Saraswati v R (1991) 172 CLR 1 considered. Cooper Brookes (Wollongong) Pty Limited v FCT (1982) 147 CLR 297, and Re Lockwood [1985] Ch 231 distinguished.

3. Implying words into a statute requires fulfilment of three conditions. First, it must be possible to determination the purpose of the statute. Secondly. It must be apparent that the eventuality is one that has been overlooked through inadvertence. Thirdly, it must be possible to state with certainty the words that would have been added if the eventuality had not been overlooked. None of these conditions were met. R v Young (1999) 46 NSWLR 681 and Jones v Wrotham Park Settled Estates [1980] AC 74 applied.

ORDERS

1. Leave to appeal granted with effect from 9 January 2007 so as to deem the appeal instituted that day to be competent.
2. Dispense with further compliance with the Rules.
3. Appeal dismissed.
4. No order as to costs.
5. Liberty to the Second Respondent to apply for a different order for costs within 14 days by lodging written submissions in the submissions box on Level 12 and serving a copy on the solicitors for the Appellants.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40642/06

SANTOW JA BASTEN JA HANDLEY AJA

Friday 14 September 2007 Re DG and the Adoption Act 2000 (NSW) Judgment 1 SANTOW JA: I agree with Handley AJA.

2 BASTEN JA: This matter was commenced as an appeal against the judgment of Austin J, dismissing a summons seeking an adoption order: Re DG and the Adoption Act 2000 [2006] NSWSC 968. For the reasons given by Handley AJA leave to appeal was required, but should be granted. 3 I agree with the orders proposed by Handley AJA and with his Honour's reasons. There are some further matters which support those conclusions. 4 I agree with the principles of statutory construction as explained by Handley AJA at [43]-[48]. There have been cases in which reference to the same authorities has produced statutory exegesis having a carcinogenic quality: see, eg, Parrett v Secretary, Department of Family and Community Services (2002) 124 FCR 299 at [50]. While there may be circumstances in which a greater degree of flexibility may be attributed to legislative language than in others, this is not such a case, for a number of reasons. First, as will be noted below, an adoption order can result, not only in the creation of a new legal status between individuals, but also in the destruction of the status as between others. Careful attention to these consequences is required in order to avoid unintended effects, not only in relation to areas of civil law, including inheritance and domicile, but also under the criminal law: see, eg, s 95(4) of the Adoption Act 2000 (NSW). 5 Secondly, where a person sought to be adopted is a child of a marriage, there may be consequences for the operation of State and Commonwealth laws, such as the Family Law Act 1975 (Cth). Thirdly, there may be consequences for inter-country adoptions and consistency with Australia's international obligations. 6 There are other considerations specific to this case. The particular problem arises in the context of the adoption of an adult. As the New South Wales Law Reform Commission noted in its Report No. 81, "Review of the Adoption of Children Act 1965 (NSW)": "4.17 The Adoption Act is primarily and fundamentally concerned with the permanent placement of children in a family so that they can be brought up, maintained and educated within a secure and loving family environment. It is therefore anomalous to allow the adoption of adults; the purpose of making such an order will always diverge from the provision of a home in which to be raised and protected."

The Commission nevertheless continued: "4.18 Having said that, there is no real reason why legislation should so fetter the Court that it can never make an order for adoption of an adult. Provided the making of such order is seen as exceptional, the Commission recommends that the power to do so remain in the legislation. … 4.20 Adult adoption lies at the outer margin of adoption." 7 The fact that different purposes may attend an adult adoption, as recognised by the Commission, has been blurred by the drafting technique of consistent use of the term "child" with a definition providing: "(a) a person who is less than 18 years of age, or

(b) a person who is 18 or more years of age and in relation to whom an adoption is sought or has been made." 8 The Commission recommended repeal of the requirement that marriage form a barrier to an adult adoption order, but maintained the requirement that the adoptive parents must have had a parenting relationship with the child, as a child. These recommendations were both reflected in the Adoption Act 2000. 9 The latter requirement is now to be found in s 24 of the Adoption Act 2000, set out by Handley AJA at [25] in the form in which it existed at the date the adoption order was sought, namely by summons filed on 8 June 2006. An amendment made by the Adoption Amendment Act 2006 (NSW) at least clarified the requirement that a five year period of parenting was to have occurred prior to the child reaching 18 years of age and not necessarily for the five year period immediately before the application was made. However, it would have been open to the Court to adopt this construction of s 24(2)(a) in any event. Whether the amendment can be relied upon is more doubtful. Item [13] in Schedule 1 of the 2006 Amendment Act included a new Schedule 3, Part 3 in the Adoption Act 2000, including the following clause: " 15 Who can be adopted? Section 24, as amended by the 2006 amending Act, does not apply to any adoption order arising from an application for adoption made before the commencement of the amendments made to that section by that Act."

This language is awkward, but must, to have effect, operate in relation to the application for the order, so as to affect the circumstances in which an order might otherwise be made. 10 Because of the requirement in relation to an adult sought to be adopted, that the applicant and proposed adoptee have been in a parenting relationship for at least five years, the applicant, as one of a couple, is likely to be a "step parent" because married to the prospective adoptee's birth parent or because they have lived in a de facto relationship of three or more years duration: see Adoption Act 2000, Dictionary, step parent. 11 The Act makes separate provision for "adoption by one person" in s 27 and "adoption by couple" in s 28. Where one of the couple is a birth parent, it is clear from the terms of s 27(3) (consent of spouse) that an application may be made by the other member of the couple alone. 12 In the present case, it might have been open to the adoptee's stepfather to apply as a sole applicant. Because he continues to live with the birth parent it seems likely, pursuant to s 95(3), that the relationship between birth parent and adoptee would not cease where the birth parent and step parent are living together. (This conclusion is expressed with some hesitation, because sub-s (3) is expressed to be "[d]espite subsection (1)", whereas the effect it is reversing appears to be that achieved by sub-s (2)(d).) 13 Because the present application was made by the adoptee's birth mother and stepfather as a couple, s 28 of the Act applied. Pursuant to s 28(2), the Court could not make an order in favour of the couple, one of them being a step parent, "unless s 30 is complied with". That provision as explained by Handley AJA, requires in apparently intractable language that the step parent must have lived with the child and the child's birth parent for not less than three years "immediately before the application for the adoption order". The effect of this provision, if applicable, is to preclude an adoption order in relation to an adult adoptee who is no longer living in his or her parent's home immediately before the application for the order is made. 14 That conclusion can be avoided only on one of two approaches. The first is that pursuant to s 28(2), the operation of s 30 only applies in relation to adoption by a couple where one of the couple is a step parent. That, of course, would not apply in the present case, but might allow an application by a step parent alone. However, if that had been intended, the terms of s 30 could have been incorporated directly into s 28(2), rather than by reference. Rather, s 30 must have been intended to apply both to adoptions by one person and adoptions by couples, it being assumed that there was no need to make express reference to it in s 27 because it clearly operated where the order was sought by the step parent alone. 15 The other approach, considered at some length in argument, was that the requirements in s 30(b) could be treated disjunctively, with respect to the child and the other parent. That would in effect require reading-in between the words "for a continuous period of not less than three years" and the words "immediately before the application" words to the effect "and in the latter case". However, for reasons explained by Handley AJA, that course would exceed the proper limits of the powers of the Court in construing legislation. 16 Two additional points might be noted. First, the courts not infrequently complain about difficulties of construing language used in legislation. It ill behoves a court to impose, by a form of linguistic contortion, a meaning which is inconsistent with that which has been expressed with reasonable clarity in the legislation. Secondly, the language of paragraph (b) in s 30 was not that recommended by the Law Reform Commission. Accordingly, one can be reasonably satisfied that there was a deliberate intention to impose a constraint on adult adoptions by step parents, beyond those which the Commission intended. 17 HANDLEY AJA: This is an appeal, or alternatively, an application for leave to appeal from the decision of Austin J on 19 September 2006, who refused to make an adoption order in respect of an adult on the application of her step-father and birth mother. The intended adoptee is married and lives with her husband and children at a different address. The only question before the Court, apart from the competency of the appeal, is whether s.30(b) of the Adoption Act 2000 prevents the Court making the order. All other statutory pre-conditions were satisfied, and Austin J said that "were it not for that one difficulty I would have no hesitation in making the order". He held that s.30(b) prevented the Court making the order. 18 On 9 January 2007 the Applicants appealed as of right. The competency of the appeal must have been questioned because on 27 February they filed a notice of motion seeking a declaration of competency or leave to appeal. Section 101(1) of the Supreme Court Act provides: "Subject to this and any other Act and subject to the Rules, an appeal shall lie to the Court of Appeal from - (a) any judgment or order of the Court in a Division;" 19 Section 101(2)(r) provides: "An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from - … (r) a final judgment or order in proceedings of the Court, other than an appeal: (i) that involves a matter at issue amounting to or of the value of $100,000 or more, or (ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more." 20 Mr Anderson for the Appellants argued that an appeal which could never satisfy para (r), because it was not about money or property, was not affected by the monetary limit and lay as of right. 21 The suggested construction is contrary to the scheme of s.101(2)(r) which bars all appeals as of right unless the monetary threshold is satisfied. It is also inconsistent with Clyne v NSW Bar Association (1960) 104 CLR 186, 205. Mr Clyne's right to remain on the roll of barristers was not property, and was incapable of being valued. The High Court held that he therefore needed special leave because the monetary threshold for appeals as of right was not satisfied. The Court's reasoning is equally applicable to s.101(2)(r) of the Supreme Court Act. The fact that para (r) and other paragraphs of sub-section (2) overlap does not assist the Appellants. 22 The appeal was therefore incompetent, but the construction issues warrant the grant of leave and the Court indicated during oral argument that this would be granted. 23 The common law does not recognise adoption: Halsbury's Laws of England 4th Edition Volume 24 para 624, and therefore it is entirely the creature of statute. The Appellants' application is unusual because it relates to a married woman aged thirty-five, and the applicants are her step-father and birth mother. Because of this the application had to satisfy requirements which do not apply to other adoptions.

24 The Act has been amended since the decision of Austin J by the Adoption Amendment Act 2006, but the transitional provision referred to by Basten JA makes the amendment inapplicable.

"(1) An adoption order may be made in relation to a child who: (a) was less than 18 years of age on the date on which the application for the order was made, or (b) was 18 or more years of age on that date and was cared for by the applicant or applicants for the order. (2) For the purposes of sub-section (1)(b) a child was cared for if the child: (a) has been brought up, maintained and educated by the … applicants … as … their child for a continuous period of at least 5 years before the application was made, or

(b) …" 26 Child is relevantly defined in the Act's Dictionary as "(b) a person who is 18 or more years of age and in relation to whom an adoption is sought or has been made." This application satisfied the requirements of s.24. An application by a couple must also satisfy s.28. The relevant provisions are: 28 "(2) The Court must not make an order in favour of a couple if one of them is a step-parent unless s.30 is complied with. (3) … (4) The Court must not make an adoption order in favour of a couple unless the couple have been living together for a continuous period of not less than 3 years immediately before the application for the adoption order. (5) …" 27 Section 30 dealt with the requirements for adoption by a step-parent: "The Court must not make an adoption order in favour of a step-parent of a child unless: (a) the child is at least 5 years old, and (b) the step-parent has lived with the child and the child's birth or adoptive parent for a continuous period of not less than 3 years immediately before the application for the adoption order, and (c) … (d) …" 28 The Applicants had been living together for not less than 3 years "immediately before the application for the adoption order" and s.28(4) was satisfied. However s.28(2), possibly for more abundant caution, required compliance with s.30, which would have applied of its own force. 29 Section 30(b) repeated, in slightly different words, the general requirement in s.28(4) that the adoptive couple must have lived together for the specified period but added the requirement that "the step-parent has lived with the child and the child's birth or adoptive parent" for that period (emphasis supplied). 30 Under s.24(2)(a) the continuous period of 5 years did not have to be "immediately" before the application. However the absence of "immediately" in this context emphasised its significance in s.28(4) and s.30(b).

31 Applications by a step-parent have to satisfy the requirement in s.30(b) that the step-father and the birth mother must have lived with "the child" for a continuous period of not less than 3 years immediately before the application. 32 The Court was not unsympathetic to the merits of the appeal and a number of possible constructions of s.30 and s.30(b) were explored in argument. Some failed to survive examination but others must still be considered. 33 The word "immediately" cannot be ignored, and the possibility of implying words in s.30(b) which would limit the "immediately before" requirement to the adopting couple foundered because this was already required by s.28(4). The additional requirement for the step-parent and the birth parent to have lived with the child for the same 3 years cannot be wished away. 34 There is no warrant for reading s.30 as limited to children under 18, and this construction would not assist the Appellants. Their application had to satisfy s.30 otherwise s.28(2) would prevent the order being made. 35 The 2000 Act was passed following the report of the Law Reform Commission 1997 which reviewed the 1965 Act. The Act generally gave effect to the Commission's recommendations reflected in the Draft Bill included in the report. However Parliament did not adopt clause 29 of the Draft Bill which provided: "The Court is not to make an adoption order in favour of a step-parent of child unless: (a) the step-parent has lived with the child's birth or adoptive parent for a continuous period of not less than 3 years immediately before the application for the adoption order, and (b) consent to the adoption of the child by the step-parent has been given in accordance with this Act by the appropriate persons, and (c) the child has established a relationship of at least 5 years duration with the step-parent." 36 This clause repeated the requirement in cl 27(1) that the adoptive couple must have lived together for a continuous period of not less than 3 years immediately before the application but contained no requirement for them to have lived with the child. The requirement in cl 29(c) for a relationship with the child for at least 5 years reflected the requirement in cl 23(b)(1) (now s.24(2)(a)) that the child must have been cared for by the adoptive couple for a continuous period of at least 5 years before the application was made. This did not have to be immediately before the application. 37 Section 30 added the requirements in para (a) that the child must be at least 5 years old and in para (b) that the child must have lived with the adoptive parents for at least 3 years immediately before the application. Both changes made it harder for a step-parent to adopt a step child. 38 It was argued, with some encouragement from the Bench (who were not then aware that the amendment was not retrospective), that the 2006 amendment to s.24(2)(a) justified the implication of the words "for a continuous period of not less than 3 years" at an earlier point in s.30(b) so that the paragraph read: "The step-parent has lived with the child for a continuous period of not less than 3 years and with the child's birth or adoptive parent for a continuous period of not less than 3 years immediately before the application for the adoption order" (additions emphasised). 39 This submission faced a number of difficulties. Section 30(b) is not inconsistent with amended s.24(2)(a). The latter is a general provision applying to all adoptions of adults while s.30 is another general provision which applies to all adoptions by step-parents. Section 30(b) is more stringent as the child must have lived with the adoptive couple while s.24(2)(a) can be satisfied although the child lived elsewhere.

40 This situation occurred in Re Director-General, Department of Community Services (NSW); Adoption of DR by DCB and HMB (2000) 26 Fam LR 107, a case under the 1965 Act. An Australian couple treated a child in India as their son and provided all the care and support they could until they brought him to Australia when he was 17. Hodgson CJ in Eq held that the child had been "brought up, maintained and educated" by the couple while he was in India but clearly he had not lived with them during that period. The additional requirements in s.30(b) are cumulative on, and not inconsistent with, s.24(2)(a). 41 The words sought to be implied would create two separate conditions in s.30(b), one that the step-parent must have lived with the child, the other for the step-parent to have lived with the birth or adoptive parent. Any implication having this result would be inconsistent with the structure of s.30(b) which requires a single qualifying period immediately before the application during which the step-parent must have lived both with the child and the birth or adoptive parent. 42 While the words sought to be implied reflect the omission, by the 2006 Act, of the words "before the application was made" from s.24(2)(a), the original section did not require the qualifying period to occur immediately before the application. On the other hand the words sought to be implied do not reflect the new requirement in s.24(2)(a) that the qualifying period occur before the child reaches 18. 43 In my judgment s.30(b), with its requirement for a single qualifying period immediately before the application is not amenable to the suggested implication. The principles governing the implication of words in a statute were summarised in R v Young (1999) 46 NSWLR 681, 686-7 by Spigelman CJ who said: "The proposition that a court can introduce words into an Act of Parliament offends a fundamental principle of our constitutional law. It is no part of the function of any judge to amend legislation. The task of the courts is to determine what Parliament meant by the words it used, not to determine what Parliament intended to say … In order to construe the words actually used by parliament, it is sometimes necessary to give them an effect as if they contained additional words. This is not, however, to introduce words into the Act. This involves the construction of the words actually used … The process by which words omitted by inadvertence on the part of the draftsperson may be supplied by the court, must remain capable of characterisation as a process of construction of the words actually used. The contemporary approach is as set out by Lord Diplock in [ Jones v. Wrotham Park Settled Estates ] [1980] AC 74, 105 - 7: 'But … the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co. Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course was satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by parliament had their attention been drawn to the omission before the Bill passed into law …' The court may construe words in the statute to apply to a particular situation or to operate in a particular way, even if the words used would not, on an literal construction, so apply or operate. However the words which actually appear in the statute must be reasonably open to such a construction. Construction must be text based … the court supplies words omitted by the draftsperson only in the sense that the words so included reflect in express, and therefore more readily observable, form, the true construction of the words actually used. In my opinion the authorities do not warrant the court supplying words omitted by inadvertence per se." 44 In Saraswati v R (1991) 172 CLR 1, 22, in a judgment concurred in by Toohey J, but which did not attract majority support, McHugh J said: "… once a court concludes that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole including the policy which may be discerned from its provisions, it is entitled to give effect to that purpose by addition to, omission from , or clarification of, the particular provision." (emphasis supplied). 45 The authorities cited by McHugh J do not support the proposition that the Court is entitled to give affect to the purpose of Parliament by "omission from" the particular provision. No such question arose in the four cases he cited which included Kammins Ballrooms [1971] AC 850, 880 - 2, and Jones v Wrotham Park Settled Estates [1980] AC 74, 105. In Cooper Brookes (Wollongong) Pty Limited v F C T (1981) 147 CLR 297, 321-3 the Court held that a general definition was excluded by a contrary intention derived from the context. In Re Lockwood [1958] Ch 231, 238 Harman J did not ignore the words which created the difficulty but preferred "to treat them as not binding me to construe the word 'class' in the earlier part of the sub-section as confined to the primary class"; cf Thornton v Brunsden (1956) 56 SR (NSW) 265. 46 In Laker Airways Ltd v Department of Trade [1977] QB 643, 699 Lord Denning MR said: "In summarising the statutory provisions, I have missed out the words in s.3(1) 'otherwise than by this section' and in s.3(2) 'otherwise than by this sub-section'. They are the words of a purist intent upon literal accuracy. But to my mind they contribute nothing but confusion. The best way of understanding the provisions is to omit those words altogether." 47 At 716 Roskill LJ referred to the difficulty of giving those two phrases "any intelligible construction" and ignored them. At 725 Lawton LJ did the same, refusing to give substantive effect to "draftsman's jargon". 48 These cases do not authorise a Court to omit words from the statutory text which have an intelligible meaning, although words may be read down, as in Cooper Brookes (above) and Re Lockwood (above), to reflect the overarching intention of Parliament expressed in the statute, and meaningless jargon may be ignored. 49 In my judgment the conditions identified by Lord Diplock are not satisfied in this case. The purpose of the Act, read as a whole, was to remedy the mischief occasioned by the absence of any power to adopt at common law, but this is not particularly helpful. Another purpose was to permit a step-parent to adopt a step-child in some circumstances but this is not helpful either.

50 In terms of the second condition it is not apparent that the drafter and Parliament overlooked and failed to deal with an eventuality that had to be dealt with if the purpose of the Act was to be achieved. They had before them the Draft Bill from the Law Reform Commission and deliberately changed it. 51 The third condition is that it must be possible to state with certainty the words which were omitted. There is no certainty in this case because the words proposed to be implied would change the structure of s.30(b) by converting a single composite condition into two conditions one of which would be surplusage. 52 An insuperable difficulty is that the implication would reverse the effect of the amendments made by Parliament to cl 29 of the Draft Bill as proposed by the Law Reform Commission. Another is that the suggested implication would be inconsistent with the requirement in s.30(b) for a single qualifying period when the three parties are living together immediately before the application is made. In my judgment s.30(b) prevents the order being made and the appeal should be dismissed. 53 The Department appeared by counsel to oppose the appeal on legal grounds and to assist the Court. The submissions of Ms England on behalf of the Department have been helpful, and in substance have been upheld. However, as at present advised, I would be disposed to treat the appearance of the Department as that of an amicus curiae and I would not make an order for costs in its favour. However the parties have not been heard on that question and I would reserve liberty to the Department to apply for a different order within 14 days. The following orders should be made:

1. Leave to appeal granted with effect from 9 January 2007 so as to deem the appeal instituted that day to be competent.

2. Dispense with further compliance with the Rules.

5. Liberty to the Second Respondent to apply for a different order for costs within 14 days by lodging written submissions in the submissions box on Level 12 and serving a copy on the solicitors for the Appellants.

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