Frigger v Parkyn

The respondent's decision 3 The respondent informed Mrs and Mr Frigger of his decision by a letter dated 3 February 2021. He did not give detailed reasons. After referring to the two documents that had been lodged (on 29 January 2021) the letter said: I have carefully considered the content of your documents and advise that I am unable to accept your documents for filing pursuant to Rule 2.26 of the Federal Court Rules 2011. Rule 2.26 of the Federal Court Rules 2011 provides that: A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious: (a) on the face of the document; or (b) by reference to any documents already filed or submitted for filing with the document. I am satisfied having considered the documents you have sought to file that they are on their face frivolous or vexatious. It would constitute an abuse of the process of the Court if they were accepted for filing.

The basis on which judicial review is sought 4 Despite the brevity of the respondent's letter, Mrs Frigger does not challenge it on the basis of inadequacy of reasons (when it is evident from her having argued that point in her previous application for judicial review that she was aware of that as a potential ground: see Frigger v Trott at [22]-[28]). Rather, the grounds stated in the originating application are that: 1. The making of the decision was an improper exercise of the power conferred by Federal Court Rule 2.26 in pursuance of which it was purported to be made. 2. The decision involves an error of law. 5 These grounds correspond to s 5(1)(e) and s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and I will treat the application as being based on those provisions. 6 Mrs Frigger's written submissions are mostly taken up with seeking to demonstrate that the claims sought to be made in the rejected documents have merit. They conclude by saying that in those circumstances the respondent erred 'at law' in rejecting the documents because: (a) It was not possible to reach the necessary state of satisfaction in the circumstances of 120 facts which appear on the face of the rejected documents and the judicial findings of fact referred [to] … above; (b) He had no regard to 120 facts appearing on the face of the rejected documents when forming his opinion; (c) His decision is so unreasonable that no reasonable person would have reached it; (d) He has no jurisdiction to summarily dismiss the plaintiffs' claims in the manner of a strike out application or summary judgment application; (e) Registrar Trott was not satisfied that the same claims contained in Lodgement 909455 were frivolous or vexatious. 7 Mrs Frigger thus submits that the respondent's opinion was not one that was open to him to form, and the state of satisfaction required by r 2.26 of the Federal Court Rules 2011 (Cth), (that the documents are an abuse of process or are frivolous or vexatious) could not have been reached. 8 I will proceed on the basis that Mrs Frigger's case for judicial review is that it was not reasonably open to form a view on the face of the documents that the claim was frivolous or vexatious or an abuse of process, so that the decision was an exercise of the power under r 2.26 that was so unreasonable that no reasonable person could have so exercised the power: see ADJR Act s 5(1)(e) read with s 5(2)(g). She also claims that the decision was based on an error of law (see ADJR Act s 5(1)(f)), although the only specific error identified is the one implied by [6(d)] above, namely that the respondent misconceived the power as being akin to a strike out or summary judgment application.

Principles 9 The provision of the Federal Court Rules under which the respondent purported to make the decision is quoted in his letter as set out above. 10 It is convenient to quote the following summary of principles from Frigger v Trott at [10]-[12]: A decision by a registrar to refuse to accept a document for filing under r 2.26 is a decision of an administrative character susceptible to judicial review under the ADJR Act: Satchithanantham v National Australia Bank Ltd [2009] FCA 1171; (2009) 260 ALR 567 at [30]-[31] (Foster J), upheld on appeal in Satchithanantham v National Australia Bank Ltd [2010] FCAFC 47; 268 ALR 222 at [49]-[50]; Nyoni v Murphy [2018] FCAFC 75; (2018) 261 FCR 164 at [32], [41] (Barker, Banks-Smith and Colvin JJ). While Satchithanantham concerned a decision made under the predecessor to r 2.26 in the Federal Court Rules 1979 (Cth) (O 46 r 7A), there is no reason to distinguish the power exercised under that rule from the power exercised by a registrar under r 2.26: Nyoni at [32]. In requiring the registrar to be satisfied that the documents filed are an abuse of process or frivolous or vexatious, the rule requires the existence of an opinion held by the registrar which must be honestly and actually formed. The opinion must be reasonable, but that is not a back door means of carrying out a merits review of the decision: Satchithanantham at [43]. It is also necessary that the registrar's state of satisfaction is reached on the face of the document or by reference to any documents already filed or submitted for filing with it: r 2.26(a) and r 2.26(b) and SZVCP v Cho [2017] FCA 310; (2017) 250 FCR 225 at [26] (Markovic J). 11 In Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213 at [31], Vaughan J said (citations omitted): An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed. 12 Also relevant is what Charlesworth J said in Shaw v Buljan [2016] FCA 829; (2016) 153 ALD 252 at [32]: The state of satisfaction to be reached by the Deputy Registrar is not one involving policy or taste. Rather, it is in the nature of an opinion concerning mixed questions of fact and law. Cases may arise under r 2.26 in which the formation of such an opinion involves the making of an evaluative judgment in respect of which reasonable minds may differ. In such cases, an applicant for judicial review may well have difficulty establishing reviewable error affecting the Registrar's decision. However, where an opinion formed by a Registrar is founded upon an error of law, or based upon an irrelevant consideration, the opinion will not be one that is open to the Registrar to form and the requisite state of satisfaction prescribed under the rule will not have been reached. 13 Mrs Frigger also relies on Re Rules of Supreme Court 1971 (WA); Ex parte Kingsfield Holdings Pty Ltd [2021] WASC 16 at [17], where Le Miere J said of a similar but differently worded rule: The rule is a filter to prevent the commencement of claims which are incomprehensible, incoherent or manifestly unsustainable for the purpose of protecting the court from the unwarranted waste of its time and resources, and to avoid the loss that would otherwise be suffered by those required to defend such claims. The rule is not a device for the ex parte summary disposal of claims on the same basis that the court approaches applications to strike out pleadings or for summary judgment.

The documents that were lodged 14 The nature of Mrs Frigger's case on the present application requires the court to assess the documents lodged so as to form a view as to whether it was reasonably open to the respondent to form a state of satisfaction that they were frivolous or vexatious on their face. But the role of the court is not to answer the question of whether they were frivolous or vexatious. That would be impermissible merits review. 15 The proposed proceeding purports to be brought under the Corporations Act 2001 (Cth). Mrs and Mr Frigger would be the plaintiffs. The proposed defendants are Professional Services of Australia Pty Ltd (PSA), Sandra May Banning, David Abraham Lenhoff, Timothy Richard Stephenson and Cameron Victor Eastwood. 16 According to the originating process, the proposed claims fall under five headings: (1) PSA is said to have contravened s 445C(c), s 459P and s 472 of the Corporations Act. Section 445C(c) provides that if a deed of company arrangement specifies circumstances in which the deed is to terminate, it terminates when those circumstances exist. Section 459P makes provision for who can apply for a company to be wound up in insolvency. Section 472 empowers the court to appoint a liquidator on an order being made for the winding up of a company. (2) Mrs Banning is said to have procured or been knowingly concerned in those contraventions by PSA. (3) Messrs Lenhoff, Stephenson and Eastwood, all of whom appear from the proposed affidavit accompanying the originating process to be lawyers, are said to have aided, abetted, counselled and/or procured PSA's contraventions. (4) Mrs Banning is also said to have contravened s 471A of the Corporations Act. This section was repealed with effect from 1 March 2017, but before its repeal it provided that while a company was being wound up in insolvency or by the court, a person cannot and must not perform or exercise a function or power as an officer of the company. (5) Messrs Lenhoff, Stephenson and Eastwood are said to have aided, abetted, counselled and/or procured Mrs Banning's contravention of s 471A. 17 On the basis of these claims, Mrs and Mr Frigger propose to seek a large number of remedies. They seek a declaration that PSA entered creditors' voluntary liquidation on 20 March 2009, alternatively on 31 August 2009. They seek injunctions to prevent PSA from enforcing costs orders against them in specified proceedings in the Supreme Court of Western Australia and related appeals. They seek a mandatory injunction that Mr Eastwood repay them $18,000 which was paid out by the Supreme Court. They seek repayment from Mr Lenhoff of all moneys they paid for legal costs in the Supreme Court proceedings. They seek payment out to them of $60,000 they paid into court in a proceeding in this court, WAD 607 of 2015. 18 They also seek damages, for '[l]oss of credit and reputation in' the Supreme Court proceedings, for the costs of defending those proceedings, and for the 'inconvenience, mental and emotional distress and vexation' of those proceedings. They also seek damages for 'loss of credit and reputation to Angela Frigger in the Means Inquiry Summons and costs paid and ordered to be paid in defending the Summons'. They seek damages for 'loss of credit and reputation to Angela Frigger in the Criminal Prosecution and costs paid in defending the Prosecution' (the references to a means inquiry and a criminal prosecution will be explained below). They seek damages for costs paid and ordered to be paid in WAD 607 of 2015. 19 They also seek damages for the 'tort of malicious prosecution of civil and criminal proceedings' in connection with most of the previous proceedings that have already been mentioned. 20 The basis of these claims is not clear from the originating process itself. I will now summarise what is said on the face of the other document sought to be filed with it, an affidavit of Mrs Frigger sworn 29 January 2021. To be clear, what follows describes what is said in the affidavit that was not accepted for filing. It does not mean that I accept the correctness of anything said in the affidavit.

PSA's DOCAs and alleged winding up 21 PSA was the company of Mrs Banning and her late husband. In 2008 Computer Accounting & Tax Pty Ltd (CAT), which was then controlled by the Friggers, obtained judgment against PSA in the Supreme Court of Western Australia. PSA could not pay the judgment debt. Accordingly, it entered voluntary administration in November 2008 and executed a deed of company arrangement (DOCA) on 27 February 2009. This provided for another, different company called Banning Holdings Pty Ltd to pay CAT the judgment debt, interest and costs. Almost all of the debt was paid to CAT in June 2009. A replacement DOCA was made subsequently, which Mrs Banning signed as a director of PSA on 27 June 2009. The affidavit asserts that she was not a director at that time, meaning that the two versions of the DOCA were never executed validly, were 'void ab initio', and that Mrs Banning had acted as a shadow director. 22 The affidavit alleges that the second version of the DOCA automatically terminated on 30 August 2009 due to non-fulfilment of conditions requiring the payment of creditors, with the effect that PSA entered winding up. It says that notwithstanding that, a third DOCA was executed on 31 August 2009 and PSA continued as if it was subject to it, and not in liquidation. This seems to be advanced in the alternative to the claim that the DOCAs were void from the beginning.

PSA's appeal of the damages judgment 23 PSA appealed the judgment that CAT had obtained and the damages to be paid were reduced, with the result that CAT was required by order of the Western Australian Court of Appeal to repay approximately $770,000 (at least). But the affidavit says that PSA was required to set off against that amount claims for legal or enforcement costs which CAT had for an even larger amount. There is also an allegation that the Friggers believed that the third version of PSA's DOCA was current, when the Supreme Court had found in other proceedings to which neither the Friggers nor CAT were a party that the second version was current, although it is unclear what is said to follow from that. It is said that the Friggers did not discover until 2015 that PSA had (in their view) entered liquidation on 31 August 2009.

'Malicious prosecution' 24 There is then a series of complaints about the conduct of Messrs Lenhoff and Stephenson in acting as solicitors for PSA. PSA applied for freezing orders against the Friggers. The Friggers put CAT into members' voluntary liquidation. PSA rejected an offer from the Friggers to secure $850,000 for any debt CAT may have owed PSA, but only after CAT's legal and enforcement costs were set off. Freezing orders appear to have been made but they were subsequently discharged by consent. 25 The affidavit then describes litigation which appears to have been connected with the costs of the freezing orders. Mr Stephenson is said to have made numerous allegations of wrongdoing against the Friggers. There were then appeals by the Friggers to the Court of Appeal, for costs and compensation, and a cross-appeal by PSA for costs on an indemnity basis. According to the affidavit, the Friggers were unsuccessful in the appeals and the cross-appeal, and the Court of Appeal accepted allegations made by Mr Stephenson of wrongdoing against Mrs Frigger and referred the matter to the Director of Public Prosecutions for Western Australia (DPP). 26 The DPP did not commence any prosecution right away, but Mr Lenhoff wrote to it asking whether it agreed with assertions made by Mrs Frigger that the judgment was wrong. Mr Eastwood also wrote to the DPP asking it to review whether Mrs Frigger should be prosecuted for perjury or blackmail. The affidavit says that the police charged Mrs Frigger with one count of attempting to pervert the course of justice in 2017, but in 2019 the DPP discontinued the charge. 27 Mrs Frigger's affidavit then alleges that: the criminal prosecution against me was commenced by PSA, Stephenson and Lenhoff in Freezing Orders, continued in cost appeals and culminated in the letters said on behalf of PSA and Banning by Lenhoff, Stephenson and Eastwood. I believe it is a malicious prosecution because it ended in my favour and had no reasonable or probable cause and was actuated by malice towards me.

Winding up of CAT 28 The next sections of the affidavit recount a series of events in which Mr Lenhoff on behalf of PSA and Donald Campbell-Smith, the executor of Mr Banning's estate, served a statutory demand on CAT for the amount said to have been owed as a result of the variation of the damages judgment. This resulted in the Supreme Court of Western Australia ordering CAT to be wound up in insolvency on 6 May 2010, with Mervyn Kitay appointed as liquidator. Mrs Frigger asserts that the winding up of CAT was a nullity because Mr Lenhoff had no authority to act on behalf of PSA, because it was in fact in winding up, and accordingly, its directors' powers had ceased. She also asserts that there was no money owing by CAT to PSA because of the alleged set off, and makes other complaints about the winding up proceedings.

Means inquiry 29 At some point it appears that Mrs Frigger sued Mr Campbell-Smith for damages pursuant to an undertaking as to damages he gave in relation to the freezing orders. While this is not explained in the affidavit, from annexures it appears that he had been a defendant to CAT's action against PSA in his capacity as executor of Mr Banning's estate. The application for damages seems to have been unsuccessful because the Supreme Court awarded costs in Mr Campbell-Smith's favour that were assessed at approximately $31,000. 30 In 2015, Mr Stephenson and Mr Eastwood took out a means inquiry summons against Mrs Frigger in relation to those costs. Mr Campbell-Smith died in 2018 and his death certificate suggests he may have been suffering from dementia at the time of the means inquiry. Mrs Frigger asserts this means that the proceeding was a nullity because Mr Campbell-Smith was under a legal disability and accordingly Mr Stephenson and Mr Eastwood had no authority to act. There were numerous hearings in the means inquiry and Mrs Frigger was required to provide a great deal of confidential information. She asserts that it ended in her favour because no enforcement orders were made against, her, and yet she was ordered to pay costs of $10,000. She makes allegations about what are, in effect, ulterior purposes which Mr Stephenson and Mr Eastwood had for the means inquiry.

Other matters 31 The affidavit also alleges that Mr Lenhoff made disparaging comments about Mrs Frigger to solicitors, which led the solicitors to withdraw their services and led the Friggers to be unable to obtain legal representation. 32 Other documents are annexed to the affidavit, the relevance of which is not explained in the affidavit. One of them is an affidavit of Mr Campbell-Smith's wife sworn in WAD 607 of 2015 in this court in which she says that Mr Campbell-Smith was liable to Mr Eastwood's firm for costs. It is asserted that because Mr Campbell-Smith had dementia at the time he incurred those costs and so could not give instructions or accept liability, this court was misled when it made a security for costs order in that proceeding.

Evaluation 33 To repeat, the task of the court on judicial review is not to substitute its own view about whether the documents were frivolous or vexatious on their face for the view of the respondent. The task is to decide whether the respondent's state of satisfaction that they were frivolous or vexatious was reasonably open, or whether any error of law is evident from the fact that he did reach that state. Despite some innuendo in Mrs Frigger's submissions filed in this proceeding, she makes no clear allegation that the respondent's state of satisfaction was not genuine and there is no basis to think that it was not. 34 It is evident from the description given above that there are many bases on which the respondent could reasonably have concluded that claims made in the documents were frivolous or vexatious. The following is a non-exclusive list of views that were open to the respondent to form on the face of the documents: (1) In part, the claim purports to be based on contraventions of s 445C(c), s 459P and s 472 of the Corporations Act. But none of these provisions are capable of being contravened. The first simply takes effect if certain events specified in a DOCA occur. The second authorises certain persons to make a winding up application and the third grants a power to the court to order winding up. The fact that these provisions cannot be contravened undermines both the claim against PSA as alleged primary contravener and the claims against the other defendants for involvement in the contraventions. (2) Section 471A of the Corporations Act, in contrast, was logically capable of being contravened. But it does not follow that there is a coherent and arguable claim for relief based on that provision in the documents lodged here. For one thing, the basis of the application is said to be s 1324 of the Corporations Act. That provision empowers the court to grant injunctions against persons who have engaged, are engaging or are proposing to engage in contraventions of the Act. Even if the sections mentioned in the preceding item were capable of being contravened, the contraventions in question are said to have happened in 2009. Despite the breadth of the power to grant injunctions in s 1324, it was open to the respondent to conclude that to seek an injunction based on conduct that occurred over a decade ago is frivolous or vexatious. (3) There is a claim that Mrs Banning executed DOCAs as a director of PSA when she was not a director. But the only evidence of the latter fact is a current company search which states 10 May 2016 as the date on which she became a director. As a current search only, in circumstances where PSA was previously under external administration for a time, it alone cannot establish that Mrs Banning was not a director of PSA in 2009. (4) The standing of the Friggers to claim a declaration that PSA's DOCAs were never effective or terminated, so that PSA entered winding up in 2009, is also unclear. While CAT may have been a creditor of PSA at that point, it would appear that the Friggers, in their personal capacity, were not. (5) The claim for malicious prosecution stated in the affidavit is incoherent. While it appears to be based on the criminal prosecution, it seems also to be comprised, somehow, by the seeking of the freezing orders in the Supreme Court of Western Australia and the appeals to the Court of Appeal. Whether those civil proceedings are also the bases for separate torts of malicious prosecution is not clear. (6) Assuming they are, it is an open question as to whether a claim can be made for malicious prosecution of civil proceedings of that kind: see Perera v Genworth Financial Mortgage Insurance Pty Ltd [2019] NSWCA 10 at [15]. But even allowing for that possibility, the claim for malicious prosecution faces significant difficulties. The elements of the tort are (A v State of New South Wales [2007] HCA 10; (2007) 230 CLR 500 at [1]): (a) that proceedings of the kind to which the tort applies were initiated against the plaintiff by the defendant; (b) that the proceedings terminated in favour of the plaintiff; (c) that the defendant, in initiating or maintaining the proceedings acted maliciously; and (d) that the defendant acted without reasonable and probable cause. Even if it is assumed that the defendants here 'initiated' the DPP's criminal prosecution (as to which see Lee v Abedian [2016] QSC 92; [2017] 1 Qd R 549 at [107]-[108]), they can hardly be said to have done so without reasonable and probable cause when the prosecution was based on a referral from the Court of Appeal. To the extent that the claim is for malicious prosecution of the appeals, those appeals were all decided against the Friggers, so the second element above is not satisfied in those cases. (7) The various claims for malicious prosecution have no real connection with the purported claims under the Corporations Act. The lawyers who are alleged to have committed the tort(s) could have done so regardless of whether PSA was in liquidation and regardless of whether Mrs Banning was a director of PSA authorised to instruct them on the company's behalf. So the tortious claims are not part of the same 'matter' as the Corporations Act claims, meaning that this court has no jurisdiction over the former: see Fencott v Muller (1983) 152 CLR 570 at 603, 608. (8) The orders sought to prevent the enforcement of various costs orders made in the Supreme Court, or for the repayment of money paid out pursuant to orders, and for Mr Lenhoff to pay the costs of proceedings in which the Friggers were unsuccessful, are collateral attacks on orders made by that court and an abuse of process: see Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 31. In substance they are attempts to re-litigate in this court matters which have already been decided in the Supreme Court. (9) The same may be said of the attempt to impugn or claim damages for the winding up of CAT by order of the Supreme Court. (10) The same may be said of the attempt to reverse or seek damages for what appears to have been costs orders, and security for costs orders, that were made in this court in WAD 607 of 2015. The fact that those orders were made in the same court as the proposed proceeding does not improve that aspect of the claim. (11) The attempt to impugn the means inquiry conducted in the Supreme Court also appears on its face to be an abuse of process. Even if that proceeding did not result in any final determination, it was a proceeding conducted in and under the supervision of that court and it is vexatious to question the conduct of that proceeding some six years later in this court. (12) It is not clear how the allegations that Mr Lenhoff made disparaging comments about Mrs Frigger, leading lawyers to withdraw their services, give rise to any of the relief sought. 35 I would add that it requires a generous approach to the logical coherence of the claims even to be able to comprehend them enough to reach the views expressed above. It will be apparent from the description of the claims I have given above that the way they are said to give rise to liability on the part of the proposed defendants is unclear. 36 With respect, the written submissions filed by Mrs Frigger in this application for judicial review do not advance matters. If anything, they make it even clearer that the main purpose of the proposed proceeding is to re-litigate issues that have already been finally decided against the Friggers in courts of law. For example, the submissions claim that the statutory demand which led to the winding up order against CAT is void. But even if it was, the order was made, and on the face of things it would be deleterious to the administration of justice to permit the basis of the order to be questioned in a different court, over 10 years later. 37 The submissions also cast further doubt on the coherence of the claims the Friggers would make if the lodged documents were to be accepted for filing. For example, they say that the liquidation and provisional liquidation of CAT, proceedings terminating unsuccessfully from the Friggers' point of view, were nevertheless 'malicious prosecutions', an element of which is that the relevant proceeding has terminated in the plaintiff's favour. 38 Of course, the respondent did not have those submissions and could not act on the basis of anything other than what appeared on the face of the documents: see Frigger v Trott at [38]. So the submissions cannot be relied on to support any conclusion that his decision was legally effective. But they do not shed light on the claims made in the lodged documents in such a way as to dispel the concerns listed non-exhaustively above.

Conclusions 39 To return to the reasons given in Mrs Frigger's submissions as to why the respondent's decision should be set aside (see [6] above): (1) Having regard to the facts which appear on the face of the lodged documents (whether 120 in number or not) reveals numerous bases to conclude that the proposed proceeding was frivolous or vexatious. It was open to the respondent to conclude that the Friggers' claims were so obviously untenable that they could not possibly succeed, and that they raised no serious question to be tried. It was possible to reach the necessary state of satisfaction in the circumstances of those facts, and the content of the respondent's decision provides no basis to say that he did not have regard to those facts. (2) There were reasonable bases to conclude that the lodged documents were frivolous or vexatious, so it cannot be said that the decision was so unreasonable that no reasonable person would have reached it. The respondent's decision was, to say the least, an evaluative judgment in respect of which reasonable minds could differ: see Shaw v Buljan at [32]. (3) It is not possible to infer from the lodged documents and the respondent's decision that he committed an error of law, such as the application of a standard more demanding of the lodged documents than 'frivolous or vexatious', akin to that which would be applied in a strike out or summary judgment application. And no such error appears on the face of the decision. (4) The submission that Registrar Trott was not satisfied that the same claims contained in the previous lodgement were frivolous or vexatious seems to be based on the fact that in the letter which was the subject of Frigger v Trott, Registrar Trott did not say so in as many words. But he did say that those earlier lodged documents were scandalous and an abuse of process, so the precise formulation he used is hardly significant. In any event, the documents sought to be lodged in the present proceeding are different and the application must be considered on its merits, not by reference to a different registrar's expression of his reasons in relation to different documents. 40 I would add that to the extent that abuse of process provides a reason for rejecting the documents under r 2.26 which is separate to the reason that they are frivolous or vexatious, the evident character of the proposed proceedings as a collateral attack on historical decisions of the Supreme Court, the Court of Appeal, and decisions of this court, provides independent support for the respondent's rejection of the lodgement. 41 For all these reasons, Mrs Frigger has not established either of the grounds of review in s 5 of the ADJR Act on which she relies. The application for judicial review must be dismissed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.