Inspector Nathan Hamilton v Thiess Pty Ltd and Others

CATCHWORDS: Application by prosecutor that proceedings under section 8(1) and section 8(2) of the Occupational Health and Safety Act 2000 be vacated - application consented to by Thiess, John Holland, and Pells Sullivan Meynink - application opposed by Parsons Brinckerhoff -principles applicable to separate trial applications considered - application to vacate granted - orders.

LEGISLATION CITED: Occupational Health and Safety Act 2000

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Inspector Nathan Hamilton v Thiess Pty Ltd and Ors [2009] NSWIRComm 41 Masterton Homes Pty Ltd v WorkCover Authority of New South Wales (Inspector Batty) [2009] NSWIRComm 91 R v Dellapatrona and Duffield (1993) 31 NSWLR 123 CASES CITED: R v Oliver (1984) 57 ALR 543 R v Shillito [2009] NTSC 12 Symss v The Queen [2003] NSWCCA 77 Sheller JA The Queen v Edwards [2009] HCA 20 (21 May 2009) WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd (2000) 102 IR 40

PROSECUTOR: Mr J Agius SC with Mr R Reitano of counsel Solicitors: WorkCover Authority of New South Wales (Ms F Miller)

FIRST DEFENDANT: Mr A B Gotting of counsel Solicitors: Blake Dawson Lawyers (Ms L Constantine)

SECOND DEFENDANT: LEGAL REPRESENTATIVES: Mr J N West QC with Mr G W McGrath of counsel Solicitors: Herbert Geer & Rundle, Solicitors (Mr R Lund)

THIRD DEFENDANT: Ms T M Cabezas Solicitors: Kennedys Lawyers (Mr A A Howie)

FOURTH DEFENDANT: Mr B D Hodgkinson SC with Mr D Jordan of counsel Solicitors: Middletons Lawyers (Mr G Phillips)

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

INSPECTOR NATHAN HAMILTON v PELLS SULLIVAN MEYNINK PTY LTD

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

INSPECTOR NATHAN HAMILTON v PELLS SULLIVAN MEYNINK PTY LTD

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

INSPECTOR NATHAN HAMILTON v PARSONS BRINCKERHOFF AUSTRALIA PTY LIMITED

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

INSPECTOR NATHAN HAMILTON v PARSONS BRINCKERHOFF AUSTRALIA PTY LIMITED

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

1 The prosecution has made an application to vacate the trial date currently set down to commence on 26 October 2009 against the defendants. The defendants, with the exception of Parsons Brinckerhoff Australia Pty Limited, have consented to the application. 2 The application arises from a successful application brought by John Holland Pty Ltd in the High Court to hear and determine an issue as to whether John Holland was a "non-Commonwealth licensee" at the time of the alleged offences and thereby excluded from the operation of the Occupational Health and Safety Act 2000. 3 John Holland's application in the High Court was heard by Justice Hayne. His Honour determined that the application should be listed in the original jurisdiction of the High Court with another matter. Inquiries made by the prosecutor of the Deputy Registrar of the High Court revealed that the earliest date on which the matters could be listed for hearing was in the September/October sittings, or in the November sittings. It would appear from the anticipated timetable that John Holland's application in the High Court will not be determined until some time after the hearing of the charges against it, and the other defendants, in this Court, which have been set down to commence on 26 October for seven weeks. 4 In an earlier judgment, I made orders on the application of the prosecutor that the charges against all defendants should be heard jointly: Inspector Nathan Hamilton v Thiess Pty Ltd and Ors [2009] NSWIRComm 41. At that time John Holland had objected to the application on the basis that the issue as to whether it was a "non-Commonwealth licensee" (referred to as the "Comcare issue") may be, or was likely to be, the subject of an application before the High Court. In setting all matters down for hearing on 26 October 2009 I set John Holland's matters down on a provisional basis granting it liberty to apply in order to make any application in the intervening period: at [10]. The likelihood of proceedings being commenced in the High Court has now become a reality. This, in my view is a significant factor, which taken together with John Holland's consent to the prosecutor's present application, is strongly in favour of that application being granted: see Masterton Homes Pty Ltd v WorkCover Authority of New South Wales (Inspector Batty) [2009] NSWIRComm 91 at [13]. An additional consideration in favour of the application being granted is that the remaining defendants, with the exception of Parsons Brinckerhoff have, as earlier noted, consented to the prosecutor's application. 5 It remains to consider whether all the matters should be heard together. This was the consensus of all the parties except Parsons Brinckerhoff which, in opposing the prosecutor's application relied primarily on the prejudice which it said it would suffer, by reason of delay. 6 The prosecutor submitted that all matters should be re-listed and heard jointly in early 2010. Two principal reasons were advanced in support of the submission. First it was sought to be emphasised that the issues are the same in all matters. What flowed from this was the undesirable prospect of having to run the same trial twice if the application was refused. If two trials were run the prosecutor said the time taken to run one trial will not be any less than the time taken to run the second trial. 7 As to the commonality of issues, the prosecution briefly outlined the facts and circumstances underpinning the offences. Those facts and circumstances concern the collapse of the Lane Cove Tunnel while under construction, which, it is alleged, gave rise to a risk to the safety of workers and other persons in the vicinity of the tunnel. The defendants' individual responsibilities with regard to the construction of the tunnel included construction, design and geotechnical inspection. The real issue according to the prosecutor will be who was responsible for the collapse. The prosecutor's case against all defendants will be that they shared the responsibility. The prosecutor anticipates that there will be a degree of "finger pointing" in which each defendant will seek to deflect responsibility for the tunnel collapse onto someone else. The primary allegation which will be made by the prosecutor is that there was a deviation from the intended design of the tunnel. Arising from these matters is, according to the prosecutor, a serious risk of inconsistent verdicts if the defendants' hearings are separated. The absence of one constructor may facilitate a defence run by the other constructor which would not otherwise be available if the charges against both were to be heard together. An unfair advantage may also accrue to a constructor if it is put on trial in the absence of the designer (Parsons Brinckerhoff). 8 A rationale therefore for joint hearings would be the enhancement of justice by reason of the avoidance of the possibility of inconsistent verdicts. 9 The prosecutor conceded that the success of this application here carried with it a component of delay. It was emphasised however that delay is but one component of the administration of justice and when it is balanced against the other risks to the administration of justice it is of less significance than the prospect of having to run the trial twice. 10 On the aspect of delay the prosecutor informed the Court that all the prosecution witnesses will be available next year, and the brief of evidence is complete in that all statements and reports have been signed and served. The prosecutor also informed the Court that the evidence against the defendants is "locked in", in that it is all in writing. These matters, the prosecutor submitted, afford the defendants some protection by reason of any delay if the application is granted. 11 John Holland, joining in the prosecutor's application submitted that there was a legitimate interest, acknowledged in the law, in having the joint disposition of matters which involve multiple defendants. John Holland sought to reinforce a point made by the prosecutor, namely that the matters are factually entwined. The relevant role of the constructors, designers and others in the tunnel project are intersected and fundamentally bound up in the one matter. John Holland should be afforded the opportunity to have its matter in the High Court resolved before the proceedings in this Court commence against it and the other defendants. This is so according to John Holland because the issue before the High Court goes fundamentally to whether it can be prosecuted by the Court. This factor together with the commonality of issues and the same or substantially similar factual sub-stratum underpinning the cases against each defendant compel the conclusion that the proceedings against all defendants should be vacated and adjourned. 12 An additional risk identified by John Holland if the hearings were to be separated was the risk of inconsistent factual findings, specifically findings going to issues of credit. Witnesses should be heard once only and findings as to the credit of a particular witness or an issue should be made only once. To do otherwise may risk a fundamental unfairness. 13 John Holland also addressed the issue of delay. It stated that any delay which would ensue if the hearings were vacated would not amount to a specific or particular species of delay such as might arise for example where documents are lost or a witness is unable to be located. 14 Thiess Pty Ltd supported the prosecutor's application to vacate the proceedings and adopted the submissions put by both the prosecutor and John Holland on the application. Thiess also highlighted one further matter for consideration which was that Thiess and John Holland have been charged as a joint venture and it was therefore appropriate that their matters be heard together. Thiess also endorsed the view that the issues in the four sets of proceedings are factually entwined and the witnesses common to all matters. Pells Sullivan Meynink Pty Ltd adopted the submissions of the prosecutor and the submissions of the other defendants made in support of the application to vacate the hearings. 15 Parsons Brinckerhoff's submission in opposing the application was that the hearing dates in its matters and in the matters of Thiess and Pells Sullivan Meynink should be maintained. With regard to John Holland, Parsons Brinckerhoff sought to remind the Court that an adjournment of proceedings against John Holland was contemplated in the earlier judgment in which Orders were made that the matters proceed jointly commencing on 26 October this year. In the judgment John Holland's matters were set down on a provisional basis granting it liberty to apply in order to make an application in the period leading up to the 26 October (at [10]). Those last-mentioned Orders, I interpolate, were made in contemplation of John Holland successfully pursuing its application in the High Court to hear and determine the Comcare issue. 16 Parsons Brinckerhoff advanced the following grounds in opposition to the prosecutor's application. These were: (i) The present application to vacate the trial, made by the prosecutor, contradicts the basis upon which the prosecutor successfully applied to join the proceedings against the defendant/s. (ii) There has already been substantial delay in these proceedings. Since it was first listed in December 2008, a great deal of court time has been set aside for the October 2009 trial. (iii) The constitutional matter involving John Holland has no bearing on Parsons Brinckerhoff. If, as a result of the proceedings in the High Court, the prosecution against John Holland is discontinued, the significant further delay caused by vacating the October 2009 trial pending the High Court proceedings will have been a waste of time. (iv) Vacating the October 2009 trial will result in prejudice to the defendant. (v) By analogy with the principles applicable to adjournments pending appeals to the High Court, the defendant's case should proceed to hearing unless the prosecutor establishes that a refusal to vacate the trial would prejudice a party to the point of denying justice. In this case, the administration of justice is better served by severing John Holland from the October 2009 trial, as was envisaged in the Court's decision of 25 March 2009. 17 I propose to consider each of the grounds in turn. 18 The basis upon which Parsons Brinckerhoff developed its first ground was that when the prosecutor earlier sought to join the defendants in the one set of proceedings, he sought only the provisional inclusion of John Holland and pressed for the hearing date in October 2009 on the basis that, if necessary, the John Holland matters could be severed from the trial. 19 This, I should say at the outset, is not an entirely accurate characterisation of what was put by the prosecutor at that time. This is borne out by the transcript in which counsel then acting for the prosecutor, Mr Reitano, sought to draw a distinction between two less desirable outcomes namely where there are two hearings, one against three defendants and the second against John Holland alone, or where there are four separate hearings. Neither outcome was favoured by the prosecutor whose primary position was to avoid prosecuting in four separate hearings. 20 It would also be inaccurate to construe the Order of this Court provisionally listing John Holland's matters for hearing on 26 October with the other defendant, as indicative of an intention, in the event John Holland made a successful application to have the Comcare issue heard and determined by the High Court, to list John Holland's matter here for separate hearing. As it has transpired John Holland has been successful in its application to the High Court to have the Comcare issue heard but it has made no application to this Court for a separate hearing of the charges against it. Rather it has joined in the prosecutor's application to vacate the October hearing dates and have all matters set down for a joint hearing sometime in 2010. 21 Nor is it a consideration of much weight that if the Comcare issue is decided in John Holland's favour in the High Court then this would not dispense with the need of the prosecutor to call the John Holland witnesses in the proceedings against the other defendants. The Court cannot proceed on the basis that John Holland's application in the High Court will be successful. 22 Parson Brinckerhoff"s third ground also lacks merit. While it may be true that the determination of the Comcare issue in the High Court will have no bearing on the other defendants, the Court cannot base its findings and conclusions on speculation as to the outcome of that issue in the High Court. 23 Parsons Brinckerhoff's second, fourth and fifth grounds raise essentially the same issue, namely prejudice to it, by reason of delay, if the hearings are adjourned until 2010. Parsons Brinckerhoff contended that there had already been substantial delay in these proceedings. A chronology of the procedural history of the matters was provided to the Court. The chronology shows that Parsons Brinckerhoff entered pleas of not guilty to the charges brought against it on 11 December 2008. The current hearing dates of 26 October 2009 were set down on 25 March 2009. In the intervening period between 11 December 2008 and 25 March 2009, the Full Bench heard issues raised by way of Notices of Motion filed by John Holland and Pells Sullivan Meynink. Parsons Brinckerhoff was not a party to those applications. This timeline, however, of itself, does not suggest a substantial delay in the proceedings. Parsons Brinckerhoff also sought to rely on a "great deal of court time" which has been set aside for the October hearings. This may be so but it arises out of the size and complexity of the prosecution brief. The brief, the Court has been told, comprises 72 folders of documents as well as additional material. Some 46 prosecution witnesses will be called to give evidence. 24 Parsons Brinckerhoff relied on the anticipated length and complexity of the hearings as adding to a significant further delay if the October hearing dates are vacated. The further delay, it was said, will cause prejudice to Parsons Brinckerhoff because it will be harder for witnesses to accurately recollect events leading up to the collapse of the tunnel (in November 2005). This will affect its ability to properly clarify and challenge assertions made by the prosecution witnesses in their statements. In this regard Parsons Brinckerhoff sought to rely on the observations of McHugh J (made in the context of an extension of a limitation period in civil proceedings) in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551: The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates". Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo , "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. 25 In oral submissions Parsons Brinckerhoff stressed the factor of delay as a ground for opposing the application. It referred to the various Notices of Motion filed by its co-defendants in the proceedings which have caused a delay over which Parsons Brinckerhoff has had no control. It also expanded upon the aspect of fading memories of witnesses as a matter causing prejudice by reason of any further delay. The fact that the prosecutor's brief of evidence has been served and "locked in" (according to the prosecutor) does not dispose of the difficulties associated with the deterioration of memory of the witnesses, which condition may manifest during their oral evidence. These considerations cannot be subsumed by contrary assertions advanced by the prosecutor and the other defendants that the administration of justice will be brought into disrepute if the matters are not heard jointly. 26 Parsons Brinckerhoff in opposing the application did so on the basis that the October hearing dates in its matters and those of Thiess and Pells Sullivan Meynink should be maintained but that John Holland's matters could be severed and heard sometime in 2010. This proposal as I earlier observed would entail the Court having to hear two separate trials, traversing the same or substantially similar facts. On this construction I consider it appropriate to approach the countervailing factors raised by the parties in the context of an application for separate trials.

27 In WorkCover Authority of New South Wales (Inspector Lane) v Australian Winch & Haulage Co Pty Ltd (2000) 102 IR 40 at [46] the Full Bench referred to the approach to be taken in this jurisdiction when dealing with a separate trial application:

We were referred to relevant authorities on the issue of separate trials and should deal briefly with the issue. The authorities are usefully considered by Hungerford J in Rech v F M Hire Pty Ltd (1998) 83 IR 293 at 294-295. His Honour referred to and applied the following statement of the Court of Criminal Appeal in R v Dellapatrona (1993) 31 NSWLR 123 at 133: "There remains a balance to be struck between the public interest in the efficient despatch of criminal trials and any prejudice which may be caused to the accused. It is desirable to have all those charged in relation to a particular crime tried at the same time unless positive injustice would thereby be caused." That statement was cited with approval in the more recent judgment of the Court of Criminal Appeal in R v Fernando [1999] NSWCCA 66 in the context of a thorough review of the law and practice as to the issue at pars 198 to 212. We conclude, on the basis of these authorities, that in proceedings under the Occupational Health and Safety Act as to offences alleged to have arisen from a particular accident or injury, whether the offences be brought under ss 15, 16, 50 or a combination of those provisions, the normal method of hearing the proceedings would be by a joint trial of the various defendants. The exercise of the trial judge's discretion as to an application for separate trials would depend upon the application of the authorities having regard to the particular nature of the offences under the Occupational Health and Safety Act and the fact that the trial would be heard by a judge sitting without a jury. 28 In R v Dellapatrona and Duffield (1993) 31 NSWLR 123 at 133 the Full Court also said on the issue of separate trials: That does not mean that an applicant for a separate trial must demonstrate that positive injustice would more likely than not be caused by a joint trial, as the Crown sometimes suggests. Some prejudice to one or other accused is inevitable in any joint trial, and that is a matter which must be taken into account in striking the balance to which reference has already been made. The positive injustice to which R v Oliver refers may well be established where the evidence admissible against one accused is significantly different to that admissible against another accused, but the mere existence of that significant difference does not establish positive injustice. A good illustration of the case in which such a positive injustice is established in such circumstances is to be found in the decision of the Supreme Court of Canada in Guimond v The Queen (1979) 44 CCC (2d) 481, which led to the High Court in R v Darby (at 678) to encourage separate trials in cases where the evidence admissible against different accused is significantly different.

(In Guimond , a co-accused was granted a new trial following his conviction in the earlier joint trial. The Supreme Court of Canada found that prejudice had been created in circumstances where Guimond had made a statement which clearly implicated the co-accused in a conspiracy and where the evidence against Guimond was significantly stronger.) 29 In Symss v The Queen [2003] NSWCCA 77 Sheller JA, with whom James J and Smart AJ agreed, referred to a judgment of Hunt J in R v Middis (Supreme Court of New South Wales, 27 March 1991, unreported) in which Hunt J briefly set out the relevant principles to be considered in an application for separate trials. These are:

1. where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him, and
2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him, and
3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial. 30 None of the above considerations apply here. Parsons Brinckerhoff, at least on the present application, has not suggested that the evidence against it is significantly weaker than or different from the evidence against the other defendants. Nor has it been suggested that the evidence against one or more of the other defendants contains highly prejudicial material not admissible against Parsons Brinckerhoff. 31 In R v Shillito [2009] NTSC 12 Mildren J considered an application by the accused for a separate trial. The Crown case against the accused and another accused, Anthony Jesson, was that they had formed a common intention to prosecute an unlawful purpose in conjunction with one another, or that they were involved in a joint criminal enterprise. The primary basis for the application was that the accused's defence, being of shorter duration than Mr Jesson's defence, would result in a very short trial if the accused were separately tried. In refusing the application his Honour said (at [12] to [14]) (references omitted): There is a prima facie presumption in favour of the conduct of joint trials in cases such as this. The prima facie rule is not easily displaced. There are also administrative and policy reasons for conducting joint trials which include the convenience of witnesses, the increased time and expense involved in separate trials and that the administration of justice requires avoiding wherever possible inconsistent verdicts. It was not suggested that there will be any prejudice to the accused other than the saving in costs and time if a separate trial were to be ordered. I doubt whether much time would be saved. I am not satisfied that the circumstances of this case warrants the ordering of separate trials in the exercise of my discretion. Accordingly the application is refused. 32 There can be little doubt that Parsons Brinckerhoff will suffer some prejudice by reason of the delay which will be caused if the prosecutor's application is granted. Parsons Brinckerhoff entered its plea of not guilty relatively early. It agitated for the hearing date of 26 October 2009. It has not been a party to any of the interlocutory applications brought by John Holland and Pells Sullivan Meynink. If the prosecutor's application is granted there will be a delay of several months before all the matters are heard and determined. This delay will be caused by the desirability of having the matters heard to completion in the one sitting, and the anticipated length of the hearings, being in the order of two to three months. This delay has been acknowledged by the prosecutor. It would have been difficult to contend otherwise. 33 Delay is however only one factor that the Court must take into account. Parsons Brinckerhoff's contentions were largely confined to generalised assertions of delay associated with, and arising from, the prospect of the trial being adjourned. One matter relied upon by Parsons Brinckerhoff was the prospect of the fading recollections of witnesses in the event the hearing dates are adjourned for several months. A period of several months however is not of such a duration that it would inevitably lead to the result that the memories of the witnesses will have deteriorated to such an extent that prejudice would be created. It should also be noted that the anticipated prosecution evidence is contained in statements and accompanying material. It is, to use the prosecutor's turn of phrase, "locked in". 34 In The Queen v Edwards [2009] HCA 20 (21 May 2009), a recent judgment of the High Court, the respondents had successfully applied at first instance for a permanent stay of proceedings of the trial on the basis of loss of evidence which was in electronic form. On appeal the respondents contended that the loss of the independent records produced an unfairness which would warrant a granting of the stay of the trial since the trial would otherwise involve an incomplete reconstruction of the relevant event. In rejecting the argument Hayne, Heydon, Crennan, Kiefel and Bell JJ said (at [31]): Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair. 35 These observations, although made in the context of an appeal against a decision to permanently stay proceedings, are nevertheless capable of application here. It has not been suggested that admissible evidence in the form of statements, other documentary material or other records has been lost and therefore might otherwise give rise to an irremediable prejudice. Rather what is here advanced is the prospect that several months delay will have an adverse effect. Accepting for the purpose of the argument that it will, it does not, as a potential prejudice, sufficiently outweigh the prejudice to the prosecutor if his application is refused.

36 That prejudice would arise if the matters were the subject of two separate hearings. The prosecutor's witnesses would have to testify on two occasions in relation to the one set of circumstances. In addition, the principle that persons involved in related or connected crimes should be heard together has obvious application here: R v Oliver (1984) 57 ALR 543 at 547. 37 In Oliver, Priestley JA referred to relevant discretionary factors to be taken into account when deciding whether separate or joint trials should be held. These were said to include prejudice to an accused person, the question of the public interest in the efficient despatch of trials, the conserving of costs, the avoidance of any inconvenience to witnesses by having to attend a number of trials, and the desirability of having persons allegedly concerned in the commission of the same crime all dealt with in the one litigation unless positive injustice would be caused by it. 38 Here, the considerable expense and inconvenience which would be occasioned if the prosecution witnesses have to testify twice, as well as the desirability of having the defendants dealt with in the one litigation by reason of the commonality of issues, and the same or substantially similar factual sub-stratum underpinning the alleged offences, outweigh the prejudice which will be suffered by Parsons Brinckerhoff if the prosecutor's application is granted. I should clarify that the factors I have taken into account are in my view, finely balanced. Parsons Brinckerhoff as earlier noted, agitated for early hearing dates. Any delay in the proceedings up to October 2009 can be attributed to the number of preliminary applications made in the proceedings, none of which have been made by Parsons Brinckerhoff. 39 Other factors were raised by the prosecutor and John Holland in support of the application that the hearing dates should be vacated. These factors included the possibility of inconsistent verdicts and the possibility of inconsistent adverse factual findings being made if the prosecutor's application were not granted. It is unnecessary, in light of my conclusions, for me to address these other matters and I decline to do so. 40 The following orders are proposed: (1) The hearing dates in Matter Nos IRC 1987 to 1994 of 2007, inclusive, set down on 26 October 2009 until 11 December 2009, are vacated. (2) The matters are stood over for a directions hearing on Friday 21 August 2009 at 9:30am in order that new hearing dates can be set. (3) Costs of the application are reserved.

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