Frugtniet v Tax Practitioners Board

The facts and procedural history 5 Because of the nature of the hearing before me, no submissions were advanced by either party as to the merits of the termination decision. However, some understanding of the background to that decision assists in dealing with the appeal. 6 On 30 May 2008 the applicant applied for registration as a tax agent to the former relevant regulatory body, the Tax Agents Board of Victoria ("the TABV"). The TABV's regulatory responsibilities were later assumed by the Board. His application was deferred until he had obtained acceptable work experience and was approved on 1 January 2010. 7 It is uncontroversial that the applicant holds a Bachelor of Laws and a Master of Laws but is not, and never has been, an Australian legal practitioner. He unsuccessfully applied for admission to legal practice in 2001, and again in 2004. 8 At a meeting of the Tax Practitioners Board on 16 January 2013 the Board considered the applicant's registration as a tax agent and resolved to terminate his registration on the basis that he had ceased to meet the requirement that he was a fit and proper person. The Board notified the applicant of the termination decision by letter dated 15 February 2013 ("the notification letter"). 9 A perusal of the notification letter, and of the decisions of the various courts and tribunals to which the letter refers, indicates various matters which the Tax Practitioners Board took into account in terminating the applicant's registration, including the following: (a) The Board received three complaints regarding the applicant's conduct from his clients. These were put to the applicant and the Board considered that he failed to adequately address the complaints in his response. (b) In investigating the complaints the Board learned that, at the time of his application for registration as a tax agent in 2008, the applicant had not disclosed to the TABV that he had been refused admission to practice as a lawyer in 2001 and 2004. The Board of Examiners refused him admission as it was not satisfied that he was a fit and proper person for admission to legal practice. The applicant appealed to the Supreme Court of Victoria against the refusal to admit him to legal practice on both occasions, and each time the Court dismissed the appeal. (c) In Frugtniet v Board of Examiners [2002] VSC 140 ("Frugtniet 1") Pagone J dismissed the appeal from the first refusal to admit the applicant to legal practice. His Honour noted at [15] that it was not his task to make a positive finding that the applicant was not a fit and proper person, and he refused the appeal on the basis only that the applicant failed to satisfy him that he was such a person. At [12] to [14] his Honour said that he was not satisfied that the applicant properly explained his failure to inform the Board of Examiners about his criminal convictions and also about criminal charges which he faced but of which he was acquitted. (d) In Frugtniet v Board of Examiners [2005] VSC 332 ("Frugtniet 2") Gillard J dismissed the appeal from the second refusal to admit the applicant to legal practice. At [17] his Honour set out the applicant's history of criminal convictions and criminal charges, and the history of the applicant's disclosure of such convictions and charges to various bodies, including the Board of Examiners. In summarising his Honour's recounting of this history I note the following: (i) 4 January 1978 - while living in the United Kingdom the applicant was convicted at the Crown Court in Leeds of 15 counts of handling stolen goods, forgery, obtaining property by deception and theft. He pleaded guilty to the charges. He asked the court to take into account seven additional charges. He was sentenced to a total period of imprisonment of four years and he served two years. (ii) 27 December 1989 - the applicant was charged with obtaining property by deception, it being alleged that the credit card facilities at the State Bank of Victoria had been tampered with. The charges were not proceeded with because a State Bank witness would not cooperate with the police. The magistrate discharged the applicant at committal. (iii) 21 and 22 May 1992 - the applicant, who was working at his wife's travel agency, gave evidence on oath before the Travel Agent's Licensing Authority in relation to his wife's Travel Agent's Licence. He stated that he had never had a criminal conviction in England or elsewhere. His wife lost her licence and appealed to the AAT. (iv) 20 November 1992 - the applicant gave evidence on oath before the AAT. He rejected as "outrageous" and "scandalous" the proposition that he had been convicted of a number of charges in the UK in 1978. (v) 14 May 1997 - the applicant was charged with five counts of obtaining financial advantage by deception by selling "blacklisted" airline tickets through his wife's travel agency. (vi) 24 November 1997 - the applicant appeared at Broadmeadows Magistrates' Court in relation to the above five charges. Four of the charges were withdrawn. The applicant pleaded guilty to the fifth charge and was fined $1000 without the conviction being recorded. (vii) 1997 - the applicant was charged with three counts of perjury in relation to the evidence he gave on 21 and 22 May 1992 before the Travel Agent's Licensing Authority and on 20 November 1992 before the AAT. (viii) May 1998 - the perjury charges were heard in the County Court of Victoria before Judge Jones and a jury. The applicant relied on the Rehabilitation of Offenders Act 1974 (UK) which, in the words of Gillard J: provides that convictions recorded in the UK expired after 10 years and became spent convictions for the purposes of that Act. It followed that the accused (here the applicant) was to be treated as a person who had not committed or been charged with any of the offences. Division 3 of part VIIC of the Crimes Act 1914 (Cth) was also relevant, insofar as it applied to the disclosure of foreign convictions that are spent. Judge Jones apparently ruled that the effect of these Acts is that a person is not required in Australia to disclose to a Commonwealth authority the fact that he has been convicted of an offence that is spent, but that neither Act applied in Victoria to the Travel Agent's Licensing Authority or the AAT. This finding was critical to the applicant's defence of the perjury charges and Gillard J found that the applicant knew and understood that the effect of Judge Jones' ruling was that he could not rely on either Act in dealings with Victorian authorities. The applicant gave evidence that he honestly believed that the provisions of both Acts applied. The jury acquitted him of the charges. (ix) March 1998 - the applicant was charged with six counts of theft and three counts of attempted theft. It was alleged that while working as an employee of the ANZ Bank he had given personal details of accounts to an accomplice who then stole money from those accounts. (x) 26 October 1999 - the applicant applied to the Migration Agents Registration Authority for re-registration as a migration agent for the year October 1999 to October 2000. He completed a document in which he was asked to state, amongst other things, whether he was the subject of any criminal charges still pending before a court. The applicant stated that he was not and supported the document with a statutory declaration in which he stated that the information he had provided was complete, correct and up to date in every detail: Frugtniet 2 at [46]. Gillard J held in at [47] that "on no view could that answer be correct" because at that time he was facing nine charges arising from his employment at the ANZ Bank. Gillard J considered that the applicant admitted as much in the hearing before him. (xi) March 2000 - The accomplice pleaded guilty to the charges concerning theft from the ANZ Bank and gave evidence against the appellant. The applicant was acquitted. (xii) Between April 1998 - July 2000 - following dismissal from the ANZ Bank the applicant studied law, worked in his migration agency, and also had another job. It was alleged that during this period he obtained monies from Centrelink by deception, by claiming Job Search Allowance and Newstart allowance when he was working. (xiii) August 2001 - having completed his law degree the applicant applied to the Board of Examiners for admission to legal practice. He filed a letter of disclosure with the Board disclosing only the conviction at Broadmeadows Magistrates' Court in 1997 and no other criminal convictions or charges. On 28 August 2001 he filed an affidavit with the Board of Examiners deposing there was nothing else to disclose. (xiv) October 2001 - the Board of Examiners rejected his application. In May 2002, as I have said, Pagone J dismissed the appeal from that rejection. (xv) April 2003 - the applicant was charged with defrauding the Commonwealth by receiving Centrelink payments to which he was not entitled from March 1998 - November 2000. (xvi) May 2004 - the Centrelink charges were dismissed. (xvii) July 2004 - the applicant again applied for admission to legal practice and filed a number of documents in support of his application. He appeared before the Board and gave evidence on oath, and also gave evidence in the appeal before Gillard J (e) In refusing the applicant's appeal Gillard J noted at [68] of his judgment that: [The applicant's] pattern of conduct raises a substantial question mark concerning his honesty and his character and reputation. He is a person who does not appear to have learned from his experiences during 1989 to 2000. He carries a very heavy burden of persuading this Court that he is a person of good character and reputation and a fit and proper person to practice law. He has not discharged that burden. The way he has presented himself to this Court shows a man who is loose with the truth and is prepared to distort the truth if he thinks it will help him. Often he was asked questions which he failed to answer and went off on some tangent seeking to minimise his criminality in the past. The evidence does not persuade me that the appellant has learned from his past experience, or that he is a person motivated to tell the truth. (f) The Tax Practitioners Board considered that in his application for registration as a tax agent in 2008 the applicant had not properly disclosed the refusal of the Board of Examiners to admit him to legal practice. The section 37 documents in the AAT file available to me include the applicant's Application for Registration as a Tax Agent and Schedule of Personal Details dated 30 May 2008. Question 14 of the Application enquired: Have you had membership or registration with a professional body or registration board, (including a Tax Agents' Board), refused, cancelled or suspended in the last 10 years? The applicant responded in the negative. Before the Board the applicant submitted that an application for admission to practice as a barrister and solicitor was not an application for membership or registration with a professional body or registration board. Question 17 of the Application enquired: Is there any other matter which may effect your eligibility for registration? Question 18 of the Schedule of Personal Details enquired: Is there any other matter of which you are aware, which may have an effect on whether the Board would regard you as a fit and proper person or of good fame, integrity and character? Notwithstanding the history set out above the applicant responded in the negative to both of these questions. The applicant declared that the particulars shown in the Application and in the Schedule were to the best of his knowledge and belief, true and correct in every detail. (g) In investigating the client complaints the Tax Practitioners Board also became aware of events that had occurred after 2008. In the termination decision the Board relied on these events too. The Board referred to the decision of Law Institute of Victoria Limited v Frugtniet (Legal Practice) [2011] VCAT 596 where Judge Jenkins, Vice President of the Victorian Civil and Administrative Tribunal, decided that in May 2010 the applicant had knowingly and intentionally or wilfully misrepresented himself and misled a barrister and a magistrate to believe that he was a lawyer and was entitled as of right to appear before the Magistrates' Court. His Honour ordered that the applicant be made a disqualified person under Division 3 of Part 2.2 of the Legal Profession Act 2004 (Vic) for a period of three years. In Frugtniet v Law Institute of Victoria Ltd [2012] VSCA 178 the Court of Appeal of the Supreme Court of Victoria relevantly upheld the decision and orders. 10 The applicant commenced his application to the AAT on 18 February 2013, and at the same time sought an order from the AAT staying the implementation of the decision to terminate his registration. On 12 March 2013 the application for a stay was heard by Senior Member Handley. The Senior Member refused the stay, but made orders setting a pre-trial timetable by which the substantive application for review might be brought on for determination at the earliest opportunity. The pre-trial directions included that both parties file and serve: (a) witness statements from all witnesses proposed to be called; (b) all reports, records and other documents on which the applicant intends to rely; (c) a statement of facts and contentions; and (d) any reply materials. The applicant sought written reasons for the decision and on 2 April 2013 Senior Member Handley provided the same. It is apparent from these reasons that the Senior Member intended that the substantive application be heard in May or June 2013. 11 The applicant commenced the appeal to this Court on 9 April 2013. At the same time he applied for interlocutory orders including that: (a) the pre-trial directions be set aside; and (b) the refusal to grant a stay be set aside and a stay be ordered pending determination of the substantive application to the AAT. The appeal to this Court has had the effect that the timetable envisaged by Senior Member Handley was disrupted.

the Appeal to this court 12 Section 44(1) of the AAT Act provides as follows: A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding. (Emphasis added.) 13 In the Notice of Appeal the applicant raises the following three purported questions of law from the decision of the AAT: 1. The Tribunal failed to take relevant considerations into account in that the Applicant's written submissions dated 13 March 2013, in conjunction with the oral submissions made including the affidavit of the Applicant's Accountant David Fu dated 11 March 2013. 2. The Tribunal erred in pre-determining the central issue to be determined in the substantive hearing that the applicant had been found to be a person who was not fit and proper and who failed to make disclosure of same [sic] to the respondent in his application for registration. 3. The Tribunal erred in asking the Applicant to comment on findings in proceedings before the Victorian Civil and Administrative Tribunal (VCAT) in April 2011. 14 The Notice of Appeal seeks also that the Court make findings of fact, and alleges that: The Tribunal's findings of fact that the applicant failed to disclose his applications of 2002 and 2005 to the Board of Examiners and the Supreme Court and that the applicant was not a fit and proper person pre-supposed that the applicant was required to disclose those applications under the Income Tax Assessment Act 1936, likewise erroneously concluded that the applicant had been found to be not a fit and proper person were not reasonably open as a matter of law.

The Objection to Competency 15 The appeal to this Court was filed on 9 April 2013. The accompanying interlocutory application for a stay was listed for hearing on 19 April 2013. 16 On 16 April 2013 the respondent filed and served a Notice of Objection to Competency of the appeal. In response to this objection, the applicant first argues that the Notice of Objection is itself incompetent. In this regard he relies on the judgment of Perram J in Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18 ("Yao"). In that case the respondent filed a notice of objection to the competency of an appeal from the AAT, in circumstances not dissimilar to those now before me. Perram J made a finding that the notice of objection was itself incompetent, doing so on the basis that the Federal Court Rules 2000 did not provide for the filing of such a notice in an appeal from the AAT. Before me, the applicant seeks a similar finding. 17 However, the Federal Court Rules 2011 ("the Rules") (which came into operation on 1 August 2011) now allow for the respondent to file a notice of objection to the competency of an appeal from the AAT. Division 33.2 of the Rules relates to appeals from the AAT. Rule 33.30 which appears in that Division provides as follows: 33.30 Notice of objection to competency of appeal (1) A respondent who objects to the competency of an appeal must, within 14 days after being served with a notice of appeal, file a notice of objection to competency: (a) in accordance with Form 68; and (b) that, briefly but specifically, states the grounds of the objection. (2) The applicant carries the burden of establishing the competency of an appeal. … (5) If the Court decides that an appeal is not competent, the appeal is dismissed. 18 In my view the respondent's Notice of Objection to Competency is competent. The substance of the objection to competency therefore falls to be determined.

The competency of the appeal 19 The respondent's objection to the competency of the appeal turns on the meaning of the word "decision" in s 44(1) of the AAT Act. The basis of the objection is that the appeal is brought from an interlocutory decision of the AAT that does not dispose of the substantive application, and is therefore not a decision from which an appeal can be brought. 20 The applicant has the burden of establishing the competence of the appeal. The applicant's submissions in this regard were somewhat rambling and difficult to follow, but their thrust is that the appeal is competent. I do not agree. In Director General of Social Services v Chaney (1980) 47 FLR 80 at 102 to 103 ("Chaney") the Full Court held per Deane and Fisher JJ that "decision" in the context of s 44(1) is to be given a narrow meaning and refers to a final decision or determination of the AAT. Deane J (with Fisher J agreeing) held that: …an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. Deane J also held that no appeal lay from an interlocutory decision of the AAT suspending the operation of the decision under appeal in that case. As his Honour explained at 104: Nor, in my view, was the interim order made by the Tribunal suspending the operation of the decision of the Director-General a decision of the Tribunal from which an appeal properly lay to this Court pursuant to s. 44 of the Act. The fact that such an order has independent operative effect does not, in the circumstances, warrant further qualification of the general rule that an appeal under s. 44(1) only lies from the determination effectively disposing of the proceeding before the Tribunal. 21 As Fisher J observed at 106, such an approach conforms: …not only with the scheme of the [AAT Act] and its true construction but also with the restraint properly accepted by courts when appeals from administrative tribunals are limited to errors of law. In such circumstances it is generally considered inappropriate for courts to intervene until the statutory process is completed. I respectfully agree with his Honour. 22 Chaney has been followed repeatedly in cases in which the Court's jurisdiction under s 44 of the AAT Act has been invoked, including by the Full Court Kowalski v Repatriation Commission (2009) 259 ALR 444 at [18]-[23] per Spender, Graham and Gilmore JJ. The appeal in the present case is on all fours with Chaney. It relates to an interlocutory decision of Senior Member Handley refusing to stay the operation of the administrative decision under review, pending the hearing and determination of the substantive proceeding. 23 In my view Senior Member Handley's refusal to grant the stay cannot be said to determine the outcome of the substantive application for review to the AAT, and is not a "decision" for the purposes of s 44(1) of the AAT Act. The appeal is incompetent and must be dismissed.

The Application for leave to amend 24 In the course of argument on 19 April 2013, and in the face of the objection to competency of the appeal, the applicant sought to amend his pleading so that it included applications for judicial review under both the ADJR Act and s 39 of the Judiciary Act. He did so without notice to the respondent halfway through the hearing, and without seeking to file a draft amended pleading. Notwithstanding that subsequent to the hearing the applicant filed further submissions regarding the amendment sought, he still filed no draft amended pleading. 25 To borrow the words of Finn J in Garrett v Foster's Wine Estates Limited [2007] FCA 253 at [1], the applicant is an "unrepresented but experienced litigant". I have treated him accordingly, and given him appropriate leeway. Despite the manner and the timing by which the applicant sought to amend his pleading, I heard the application. 26 However, the application for an amendment must be refused. First, the AAT is not presently a party to the current proceedings and the applicant did not seek leave to join it. In Yao Perram J was faced with an application to amend in similar circumstances. His Honour said at [20]-[21]: During the course of the oral argument Mr Yao sought to outflank the Secretary's submission by seeking to recharacterise the notice of appeal as an application pursuant to the ADJR Act or s 39B of the Judiciary Act. I have already rejected that argument. However, it is appropriate to consider whether any such a case might have merit because, if so, the appropriate course might well be to strike out the notice of appeal but grant leave to put on an amended document. I leave to one side procedural questions such as whether a proceeding originally constituted as an appeal under the AAT Act can be struck out and reformulated as an application under the ADJR or s 39B of the Judiciary Act. I do not think that such a course, even if procedurally available, should be taken. This is for three reasons. First, as currently articulated the Tribunal is absent as a party whereas in any judicial review proceedings its presence would be a necessity. There was no application during the course of the hearing to join the Tribunal as a respondent nor any application to adjourn the present proceedings to allow such a course to be taken. I respectfully agree with Perram J, and consider that the same approach is appropriate in the present case. 27 Secondly, policy considerations point towards a tight restriction on appeals from interlocutory decisions. In Geographical Indications Committee v The Honourable Justice O'Connor (2000) 64 ALD 325 at [26], per von Doussa, O'Loughlin & Mansfield JJ, the Full Court observed: In the context of curial proceedings, the courts have been at pains to emphasise the undesirability of allowing appeals against interlocutory decisions involving matters of practice and procedure to fragment and delay the trial of proceedings. Their Honours cited Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-177 per Gibbs CJ, Aickin, Wilson and Brennan JJ and In Re the Will of F B Gilbert (dec.) (1946) 46 SR (NSW) 318 at 321 per Sir Frederick Jordan. 28 This is even more plain in relation to appeals from interlocutory decisions of the AAT under the ADJR Act and the Judiciary Act. In Commissioner of Taxation v Beddoe (1996) 68 FCR 446 per Spender J explained at 453: It is in my opinion wholly undesirable that the process contemplated by the AAT Act should be fragmented by applications seeking to challenge intermediate directions or determinations made along the way to reaching an ultimate determination of the issue before the Tribunal, in the same way that this Court should be reluctant to fragment the criminal process by entertaining applications under the ADJR Act in relation to committal proceedings and, in particular, intermediate rulings or determinations made in the course of committal proceedings rather than the ultimate decision to commit. I respectfully agree. 29 Thirdly, r 8.21 of the Rules provides the mechanism by which leave to amend an originating process should be sought. It relevantly provides: (1) An applicant may apply to the Court for leave to amend an originating application for any reason, including: … (g) to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises: (i) out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or (ii) in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding. 30 The power of the Court to grant leave to amend an originating process is discretionary. The relevant factors to be considered when considering an application for amendment were discussed at length in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [89] ("Aon") by the plurality of Gummow, Hayne, Crennan, Keifel and Bell JJ. Their Honours said at [98] and [111] to [112]: [98] Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account… [111] An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend… [112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. 31 I must consider the application for amendment not simply by reference to the rights of the parties in the present proceeding but also the impact on other litigants and the administration of justice. Section 37M of the Federal Court of Australia Act 1976 (Cth) also requires that I be guided by the overarching purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. 32 In my view the applicant had an opportunity to seek to amend the pleading to include an application for judicial review pursuant to the ADJR Act and the Judiciary Act following receipt of the Notice of Objection to Competency. Instead, he seeks to substantially amend his application halfway through the hearing as to the competency of the appeal, without notice to the respondent, doing so informally and without supporting documentation. This militates against allowing the amendment. To allow the amendment would require an adjournment to enable the applicant to file an Amended Notice of Appeal, and would then require the allocation of a further hearing date for the respondent's objection to the competency of the appeal under s 44(1) of the AAT Act, notwithstanding that the hearing in relation to the objection was already underway. 33 Finally, the thrust of the appeal involves the allegation that in refusing a stay Senior Member Handley denied the applicant procedural fairness, exhibited bias and prejudged the central issue in the forthcoming substantive proceeding. The Senior Member said at paragraphs 18 to 19 and 21 of the written reasons provided on 2 April 2013: [18] I was satisfied, and I remain of the same opinion, that it would not be desirable to grant a stay of the decision terminating the applicant's registration as a tax agent. In making that decision, whilst I was mindful of the affect upon the applicant of the prohibition upon him acting as a tax agent pending the hearing of this review, I was concerned also that the interests of members of the public and his current clients would not be best served by having their taxation affairs managed by a person who has been found to be a person who was not fit and proper and who had failed to make disclosure of same to the respondent in his application for registration. [19] On the basis of the documents that were available to me at the hearing of the stay application, the submissions the applicant made and the decisions previously made in the Supreme Court and VCAT, I was and remain of the view that the prospects of the applicant successfully challenging the decision under review are remote. … [21] I do not discount the possibility that the applicant, with adequate time to prepare for a hearing and with the benefit of competent advice may well advance evidence and submissions which will permit the Tribunal to set aside or vary the decision. However, on the basis of the limited nature of his taxation practice, the likelihood of attention being given in a taxation practice to preparation of income tax returns after 1 July and the direction that I made with respect to the lodging of pre-hearing documents that will cause this application to be heard in May or June, I was satisfied that it would not be desirable [sic] to grant the stay. (Emphasis added.) 34 The applicant points out, correctly in my view, that the statement that the applicant had been found not to be a fit and proper person is erroneous. In applying for admission to legal practice in 2001 and 2004 the onus was on the applicant to establish that he was a fit and proper person, and the relevant findings were that he had failed to do so. This is different to a finding that he was, in fact, not a fit and proper person. 35 While it appears that the Senior Member's remarks at paragraph 19 relate to the application for review of the termination decision, the thrust of his observations at paragraphs 18 to 19 and 21 relate to the difficulty in the application for a stay. These are self evident. Considering the applicant's history of criminal convictions and charges, the history of disclosure to regulatory bodies, and the obligation of the Tax Practitioners Board to act to protect the interests of the public and of other clients of the applicant, it is hard to see the applicant's appeal against the refusal of the stay as having much merit. This too militates against allowing an amendment to his appeal. 36 Of course, if the applicant can show that in the hearing of the substantive application before the AAT he is not accorded natural justice then he will be entitled to relief. In my view the circumstances indicate that the applicant should first await the hearing and determination of the substantive application before the AAT.

Conclusion 37 The application to amend the appeal is refused. The appeal is dismissed. 38 The respondent argues that there should be no order as to costs. I do not agree. In my view the appeal is incompetent, and even if treated as competent it is of little merit. In those circumstances it is appropriate that the applicant pay the respondents costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.