Jackson v Health Services Union

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 515 of 2015

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 516 of 2015

JUDGES: JESSUP, GRIFFITHS AND WHITE JJ DATE: 17 DECEMBER 2015 PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 On 9 September 2015 the appellant (Ms Jackson) filed two appeals (VID 515 of 2015 and VID 516 of 2015). The respondent in both appeals is the Health Services Union (HSU). HSU has filed objections to competency in both appeals. In accordance with directions made by Jessup J on 6 October 2015 the objections to competency were heard and determined prior to the hearing of the appeals. At that time his Honour also made directions for the filing of written outlines of submissions. 2 For the following reasons the objections to competency will be upheld.

Background to the appeals 3 The appeals arise from two proceedings at first instance. The first of those proceedings (VID 1042 of 2013) was referred to by the primary judge as the "Victorian proceeding". The second proceeding (NSD 1501 of 2013) was referred to by his Honour as the "NSW proceeding". The Victorian proceeding involved multiple claims by the HSU against Ms Jackson which included inter alia that she had contravened relevant provisions of the Workplace Relations Act 1996 (Cth) (the WR Act) and the Fair Work (Registered Organisations) Act 2009 (Cth) (the FWRO Act). It is not necessary to set out the details of these claims. 4 The NSW proceeding was brought not by the HSU but by Mr Robert Elliott, who was National Secretary of the HSU from 1996 to 2002. Mr Elliott sought various orders in respect of his employment with the HSU. The HSU cross-claimed against the former President of the HSU, Mr Michael Williamson, as well as against Ms Jackson. The HSU alleged that, without authority and in breach of duty, Mr Williamson and Ms Jackson had caused the HSU to enter into an agreement with Mr Elliott pursuant to which he was paid benefits totalling approximately $400,000 to which he was not entitled. In April 2014, Mr Elliott discontinued his claim against the HSU and his cross-claim against Mr Williamson was stayed by Court order. This meant that in the NSW proceeding, the only remaining claim was the HSU's cross-claim against Ms Jackson. 5 The two proceedings were heard below concurrently. The HSU filed a consolidated statement of claim and Ms Jackson filed a defence. She also filed a lengthy affidavit. Ms Jackson did not appear at the final hearing of the substantive proceedings below. 6 Shortly before the commencement of the trial below, Ms Jackson was declared bankrupt under s 55 of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act), after she filed a debtor's petition. Subsequently, the HSU applied for and was granted leave under s 58(3) of the Bankruptcy Act to take further steps and continue the proceedings against Ms Jackson. 7 On 19 August 2015, the primary judge gave reasons for judgment in the substantive proceeding (Health Services Union v Jackson (No 4) [2015] FCA 865) (the primary judgment). In the Victorian proceeding, the primary judge ordered Ms Jackson to pay a total of approximately $927,000 as compensation for damage suffered by the HSU resulting from her contraventions of relevant provisions of both the WR Act and the FWRO Act. Ms Jackson was also ordered to pay the HSU an amount of approximately $68,000 as money had and received by her for the use of the HSU. In the NSW proceeding, Ms Jackson was ordered to pay the HSU compensation in the amount of approximately $410,000 for her contraventions of relevant provisions of both the WR Act and the FWRO Act. The primary judge also made orders requiring the parties to file submissions on the issues of costs and interest in both proceedings. 8 It is now convenient to say a little more about some relevant aspects of the proceedings at first instance. First, on 22 June 2015, the primary judge dismissed an application by Ms Jackson for a permanent stay of the proceedings. Ms Jackson had legal representation at the hearing of her interlocutory application. Her counsel argued unsuccessfully that the proceedings should be permanently stayed on the basis inter alia that the proceedings were brought by the HSU for an improper purpose. His Honour gave reasons for rejecting Ms Jackson's application (see Health Services Union v Jackson (No 2) [2015] FCA 670 (Jackson (No 2)) and made a formal order dismissing Ms Jackson's stay application. As will be discussed further below, part of both of Mr Jackson's appeals is directed to that interlocutory order. 9 Secondly, in the Victorian proceeding below, Ms Jackson filed a cross-claim for wages which she said were owing to her by the HSU. This cross-claim was dismissed on 15 August 2014 by operation of a self-executing order which was triggered when Ms Jackson failed to comply with certain orders made by the primary judge concerning preparation for the trial. Ms Jackson was represented by counsel when the primary judge made the order dismissing her cross-claim. No objection was raised on her behalf at that time to the making of that order. For reasons which will be developed below, that order was of an interlocutory nature. Part of both of Ms Jackson's appeals are directed to that order. 10 Thirdly, as noted above, on 3 July 2015, the primary judge granted an application made by the HSU under s 58(3) of the Bankruptcy Act for leave to take fresh steps and continue the proceedings against Ms Jackson despite her bankruptcy. His Honour gave reasons for that decision (Health Services Union v Jackson (No 3) [2015] FCA 694 (Jackson (No 3)). Part of Ms Jackson's appeals are directed to that order.

The notices of appeal 11 The notice of appeal in VID 515 of 2015 describes the matters which are the subject of that appeal as follows: The Appellant appeals from the whole of the judgment and of the orders of the Federal Court in proceedings numbered VID 1042 of 2013 given on 19 August 2015 at Melbourne in Health Services Health Services Union (sic) v Jackson (No 4) [2015] FCA 865 (Tracey J) and, further, from: (a) the interlocutory order made by Tracey J dismissing the Appellant's cross-claim; (b) the interlocutory judgment and orders made by Tracey J on 3 July 2015 at Melbourne in Health Services Health Services Union (sic) v Jackson (No 2) [2015] FCA 670 (Application for Abuse of Process Stay); (c) the interlocutory judgment and orders made by Tracey J on 3 July 2015 at Melbourne in Health Services Health Services Union (sic) v Jackson (No 3) [2015] FCA 694 (s 58(3) leave to proceed). 12 The notice of appeal in VID 516 of 2016 describes the subject matter of that appeal as follows: The Appellant appeals from the whole of the judgment and of the orders of the Federal Court in proceedings numbered NSD 501 of 2013 given on 19 August 2015 at Melbourne in Health Services Health Services Union (sic) v Jackson (No 4) [2015] FCA 865 (Tracey J) and, further, from: (a) The interlocutory order made by Tracey J dismissing the Appellants cross-claim; (b) The interlocutory judgment and orders made by Tracey J on 3 July 2015 at Melbourne in Health Services Health Services Union (sic) v Jackson (No 2) [2015] FCA 670 (Application for Abuse of Process Stay); (c) The interlocutory judgment and orders made by Tracey J on 3 July 2015 at Melbourne in Health Services Health Services Union (sic) v Jackson (No 3) [2015] FCA 694 (Section 58(3) Bankruptcy Act 1966 leave to proceed). 13 The grounds of appeal in both notices of appeal are the same. These grounds relate to: (a) the dismissal of Ms Jackson's cross-claim; (b) the dismissal of Ms Jackson's application for a permanent stay; (c) the grant of leave to the HSU under s 58(3) of the Bankruptcy Act; and (d) the primary judgment. 14 It is unnecessary at this point to set out the detailed grounds of appeal in respect of these four matters other than to note that in respect of the grounds of appeal concerning the primary judgment, Ms Jackson pleads that, given the errors pleaded in respect of the other three matters, the primary hearing should not have proceeded and the judgment and orders arising from that final hearing were affected by error. It is pleaded in the notices of appeal that Ms Jackson intends to file a supplementary notice of appeal under r 36.01 of the Federal Court Rules 2011 (the FCRs) which would set out her full grounds of appeal against the primary judgment. 15 It is stated in the two notices of appeal that they were prepared by Ms Jackson "with private assistance".

Notices of objection to competency 16 On 22 September 2015, the HSU filed notices of objection to competency in both of Ms Jackson's appeals. The HSU contended that the appeals were incompetent because: (a) Ms Jackson did not have standing to bring the appeals or seek leave to appeal as she is an undischarged bankrupt; (b) grounds 1 to 9 of the notices of appeal concern three interlocutory judgments of the Court and the appeals were incompetent by operation of s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) because Ms Jackson had not sought nor obtained leave to appeal from those judgments; and (c) ground 10 of the notices of appeal did not specify a ground of appeal (this was the ground which foreshadowed the filing of a supplementary notice of appeal). 17 It should be noted that ground (c) of the notices of objection to competency was not ultimately pressed. 18 As noted above, Jessup J made orders for the parties to file outlines of written submissions in respect of the objections to competency. Ms Jackson failed to file and serve her outline of submissions within the specified time. The HSU filed its outline of submissions in a timely manner. 19 Ms Jackson belatedly filed and served an outline of submissions the day before the hearing of the objections to competency (Ms Jackson's written submissions). 20 Ms Jackson's trustee in bankruptcy filed a submitting notice which stated that he would submit to any order the Court might make and that he did not wish to be heard on the question of costs.

Adjournment request 21 In her written submissions, Ms Jackson sought an adjournment of the hearing of the objections to competency. She submitted that she was a bankrupt, was unable to afford legal representation and that her "medical condition is such that I am unable to represent myself in person as a self-represented litigant". She sought an adjournment until such time as she was able to represent herself in person. Against the contingency that her adjournment request was refused, Ms Jackson proceeded in her written submissions to make submissions in respect of the HSU's objections to the competency of her appeals. 22 Ms Jackson's request for an adjournment was opposed by the HSU. After hearing oral submissions from Mr Irving, who appeared for the HSU, the Court dismissed the request for an adjournment and said that it would provide reasons for that decision in the Court's reasons concerning the objections to competency. Those reasons will now be stated. 23 The Court refused Ms Jackson's request for an adjournment because: (a) no medical evidence was provided by her in support of her contention that her medical condition was such that she was unable to represent herself in person; (b) no indication was given by Ms Jackson as to when it might be expected that she would be able to present her case in person; (c) Ms Jackson was apparently sufficiently well to draft or arrange for someone else to draft on her behalf her written submissions in respect of the objections to competency; and (d) we consider that there is force in the HSU's submission that, in circumstances where Ms Jackson has indicated that she would not oppose the final orders made by the primary judge being set aside and a default judgment being entered against her (i.e. that she did not truly oppose orders being made that she compensate the HSU), the matters in dispute should be resolved as soon as practicable.

The parties' submissions on the objections to competency summarised 24 As noted above, Ms Jackson failed to comply with Jessup J's directions concerning the timing of filing her written submissions. When Ms Jackson ultimately provided her written submissions she had the benefit of having reviewed the HSU's outline of written submissions. It is convenient to summarise the HSU's submissions before summarising Ms Jackson's submissions which, in effect, were in response. 25 The HSU's submissions in support of their objections to competency may be summarised as follows. 26 First, the HSU emphasised that Ms Jackson bore the onus of establishing the competency of her appeals (r 36.72(2) of the FCRs). In circumstances where, at the time of the filing of the HSU's submissions, Ms Jackson had not filed any submissions, the HSU submitted that the appeals should be dismissed without further consideration of the substantive arguments raised by the HSU in support of its objections to competency. 27 Secondly, in support of its contention that Ms Jackson lacked standing to bring her appeals, the HSU submitted that the proceedings were on all fours with the High Court's decision in Cummings v Claremont Petroleum NL [1996] HCA 19; (1996) 185 CLR 124 (Cummings). In particular, the HSU submitted that the final orders made by the primary judge on 19 August 2015 converted HSU's claims into a provable debt in Ms Jackson's bankruptcy. HSU relied upon the observations of the plurality (Brennan CJ, Gaudron and McHugh JJ) in Cummings at [13]. 28 Thirdly, in oral address the HSU submitted that no significance should attach to the fact that the final orders made on 19 August 2015 were not entered until 19 November 2015. 29 Fourthly, the HSU relied upon the Full Court's decision in Bagshaw v Scott [2002] FCAFC 362; (2002) 146 FCR 27 (Bagshaw) at [26]-[30] per Mansfield, Conti and Allsop JJ as supporting its contention that Ms Jackson lacked standing. 30 Fifthly, insofar as Ms Jackson's cross-claim for wages is concerned, the HSU submitted that that claim was part of Ms Jackson's property and, accordingly, vested in the trustee upon her becoming a bankrupt. Any right of appeal relating to that claim for wages also vested in the trustee. The HSU submitted that Ms Jackson had no right to bring appeal proceedings to protect, enhance or add to the property of which she was divested, relying on both Cummings and Bagshaw. 31 In addition to these contentions concerning Ms Jackson's lack of standing to bring or prosecute her appeals, the HSU submitted that, having regard to the form of the notices of appeal, leave to appeal was required in respect of the three interlocutory orders and such leave had neither been sought nor granted. In support of its contention that the self-executing order was an interlocutory order, the HSU relied upon the Full Court's decision in Bourke v State Bank of New South Wales [1995] FCA 1122 per Beaumont, Einfeld and Beazley JJ. 32 As noted above, Ms Jackson belatedly filed written submissions. After hearing oral argument from Mr Irving, the Court extended the time for Ms Jackson to file and serve her written submissions, which had the effect of entitling her to rely upon that part of her submissions which responded to the HSU's contention that she lacked standing. The Court declined to permit Ms Jackson to rely upon the balance of her written submissions, which addressed her claim that the entire proceeding, as well as the objections to competency, constituted an abuse of process. Ms Jackson filed no evidence before us to support those claims. 33 As to the question of her standing to bring the appeals, Ms Jackson did not dispute that Cummings supported the HSU's primary contention that she lacked standing in the sense that, because of her bankruptcy, she did not have a financial interest in the final orders that she pay damages to HSU. Rather, Ms Jackson's submissions emphasised the following two matters concerning her standing. 34 First, as previously mentioned Ms Jackson stated that she did not oppose the setting aside of the primary judgment and its findings and a default judgment being substituted for the primary judge's findings of fact. It may be interpolated that this submission strongly suggests that Ms Jackson's concern is not with the orders made by the primary judge in either the primary judgment or in respect of the interlocutory matters, but is rather directed to certain findings of fact made by the primary judge. 35 Secondly, Ms Jackson submitted that the primary judge's findings reflected adversely on her personal reputation, and that those matters did not vest in her trustee in bankruptcy; however, she submitted that she had standing to challenge those "underlying factual findings".

Consideration and disposition of the objections to competency 36 For the following reasons, HSU's objections to competency must be upheld. First, it is incontrovertible that Ms Jackson has the burden of establishing the competency of her appeals (see r 36.72(2) of the FCRs). The HSU submitted that the Court should find that this burden was not discharged simply because Ms Jackson did not file her written submissions by the appointed time. That submission should not be accepted in circumstances where the Court subsequently extended the time within which that was to occur. There are other reasons, however, why Ms Jackson has failed to discharge her burden. 37 Secondly, as noted above, Ms Jackson did not contest the HSU's primary submission that, having regard to authorities such as Cummings and Bagshaw, she had no financial interest which gave her standing to appeal in her own name. As the plurality observed in Cummings at [13] (footnotes omitted): So far as a judgment entered in an action against a bankrupt creates or evidences a provable debt, we respectfully agree that the bankrupt has no financial interest which would confer locus standi to appeal in his own name against the judgment. That is because it is fundamental to the law of bankruptcy that the bankrupt is divested of both his interest in his property and liability for his provable debts. 38 It may be noted that Cummings involved appeals against a judgment which had been entered against the appellants. In the proceedings here, the orders made by the primary judge on 19 August 2015 were entered on 19 November 2015. Thus Cummings is directly in point. In any event, having regard to the definition of "provable debt" in s 82(1) of the Bankruptcy Act we strongly doubt that it would have made any difference to the outcome of the HSU's objections to competency if, final orders having been made by the primary judge, they had not formally been entered. 39 Thirdly, as to that part of the appeals which relates to the dismissal of Ms Jackson's cross-claim, we accept the HSU's submission that this claim was part of Ms Jackson's property and vested in her trustee when she became a bankrupt. Any right of appeal in respect of that self-executing order also vested in the trustee and Ms Jackson has no standing (see Cummings at [13]-[14] and Bagshaw at [26]-[32]). 40 Fourthly, Ms Jackson's contention that she had standing to bring these appeals because the primary judge made adverse findings which affected her personal reputation should not be accepted for the following reasons. 41 The first reason is that her contention is inconsistent with Cummings. In that case, the appellants made a similar submission to the effect that, independently of the trustee's interests, the effect on their personal reputation of the trial judge's findings that they had been involved in conspiracy to defraud, deceit and contraventions of statutory obligations not to engage in misleading or deceptive conduct gave them standing to appeal. Both the plurality and the minority in Cummings rejected that submission, albeit on different grounds: (a) at [14] of Cummings, the plurality observed that if a trustee declined to sue or appeal against such a judgment, the appropriate relief for the bankrupt was to make an application under s 178 of the Bankruptcy Act and the Court could make an order "as it thinks just and equitable". The plurality did not consider that a bankrupt's personal reputation provided a sufficient basis for standing independently of an order made under s 178; and (b) at [29], the minority in Cummings (Dawson and Toohey JJ) stated that findings of conspiracy to defraud, deceit and contraventions of such statutory obligation could affect the appellants' reputations, but such findings were made in the course of arriving at orders to be made and (footnotes omitted): Although they affect reputation, they are not themselves a "personal injury or wrong done to the bankrupt" which could form the basis for a separate cause of action". 42 The inconsistency between Ms Jackson's contention and Cummings provides a sufficient basis to reject her contention that her personal reputation gives her standing. We would add, however, that there is a second reason why the contention must be rejected, which relates to the fact that her notices of appeal do not particularise any individual findings of fact made by the primary judge which impugn her personal reputation. 43 While it may be accepted that the primary judge's conclusions that Ms Jackson had contravened provisions of both the WR Act and the FWRO Act affect her reputation, they are not the matters which are particularised in the notices of appeal. Indeed, in neither her written submissions nor in her notices of appeal, has Ms Jackson particularised any individual findings of fact made by the primary judge which could be regarded as "going to [Ms Jackson's] personal reputation". The particularised findings of fact all relate not to the primary judgment, but to the earlier interlocutory judgments or orders. Hence, in the case of her appeals against the dismissal of her interlocutory application for the proceedings to be stayed as an abuse of process, Ms Jackson pleads that the primary judge made findings "that mistake the facts". One of the particularised findings is the primary judge's finding in [1] of Jackson (No 2) that the delay in commencing the trial was "in no small measure, attributable to failures on the part of Ms Jackson to comply with procedural orders made by the Court". That finding scarcely affects Ms Jackson's reputation. In any event, it should also be noted that the primary judge proceeded to say that there were other additional reasons for such delay which were beyond Mr Jackson's control, including health reasons which prevented her from giving instructions to her solicitor and counsel. Those reasons were not critical of Ms Jackson's reputation. 44 As noted above, Ms Jackson's claims that the proceedings were being prosecuted by the HSU for an improper purpose and amounted to an abuse of process were considered by the primary judge in the light of all the evidence, including affidavits affirmed by Mr Jackson. His Honour found, however, that the material did not support the inference claimed by Ms Jackson, namely that the proceedings had been brought "to cause her financial ruin, and as a vehicle for the pursuit of an ongoing campaign of false, smear and attack that has been and is being waged against her by those who now control the Union, and others, since August and September 2011". Again, this finding, while plainly adverse to Ms Jackson's claims, hardly amounts to a finding which was harmful to her personal reputation. 45 The same can be said regarding other findings made by the primary judge in Jackson (No 2) which are particularised in the notices of appeal. They include matters which the primary judge gave as illustrations for why he concluded that it was "simply too tenuous to forge the link between past political differences with other Union officials and the decisions of those presently in elected office in the Union who are responsible for the prosecution of these proceedings". Similarly, the primary judge's references to evidence given to the Royal Commission into Trade Union Governance and Corruption by Mr Brown (the current National Secretary of the HSU) does no harm to Ms Jackson's reputation, particularly in circumstances where the primary judge noted in [23] of Jackson (No 2) that, as Ms Jackson's counsel pointed out, Mr Brown's evidence remained untested. 46 As to Ms Jackson's complaint that the primary judge's findings in [30]-[33] of Jackson (No 2) concerning the prejudice created for her case by the large number of lost or missing documents, the primary judge found that, after analysis, the alleged "gaping holes" in the evidence, were not as large as claimed. Moreover, the primary judge noted that Ms Jackson had not sought by way of discovery many of the documents which she subsequently claimed were unavailable and prejudiced her case. Again, these findings do not harm Ms Jackson's personal reputation. 47 The same may be said in respect of Ms Jackson's complaint regarding the primary judge's finding at [34] of Jackson (No 2) that the absence of documentation would not necessarily operate to the benefit of the Union because it carried the onus at trial and the absence of some of the documentation could undermine its capacity to make good its case. Those observations do no harm to Ms Jackson's personal reputation. 48 Similarly, the primary judge's findings in [40]-[41] to the effect that Ms Jackson had failed to establish that the non-availability of evidentiary material had been "deliberately hidden or destroyed for the purpose of preventing her making good her defence" does not amount to a finding which harms her personal reputation. 49 Ms Jackson pleads in her notices of appeal that these findings by the primary judge in Jackson (No 2) were not open and/or were unreasonable. Whether or not that be so, none of these findings affects Ms Jackson's personal reputation so as to give her standing to bring these appeals even if, contrary to the above, standing could arise in that way. 50 When attention is then turned to those parts of Ms Jackson's notices of appeal which relate to Jackson (No 3) and the grant of leave to the HSU under s 58(3) of the Bankruptcy Act, it is notable that there are no adverse findings particularised at all. Rather, Ms Jackson claims that the primary judge failed to take into account "material considerations", such as that she was unable to afford lawyers because of the actions of the HSU and her medical condition was such that she was medically unfit to appear as a litigant in person and represent herself at the substantive hearing below. Neither of these matters, nor any of the other considerations particularised by Ms Jackson, impacts upon her personal reputation. 51 As noted above, Ms Jackson particularised no specific findings made by the primary judge in Jackson (No 4). Rather, she simply relied upon the errors pleaded in respect of the three interlocutory matters in contending that the primary judge erred in permitting the substantive hearing to proceed. 52 For these reasons, we are not satisfied that Ms Jackson has pointed to any finding made by the primary judge which affects her personal reputation so as to confer standing on her despite her status as a bankrupt assuming, contrary to the above, that standing can arise in that way. 53 The second stated basis for the HSU's objections to competency concerns the operation and requirements of s 24(1A) of the FCA Act and the need to obtain leave to appeal against an interlocutory judgment or order. The orders made by the primary judge on 15 August 2015 (the self-executing order); on 22 June 2015 (dismissing the application for a permanent stay) and on 3 July 2015 (the grant of leave under s 58(3) of the Bankruptcy Act) are all interlocutory orders. We accept Mr Irving's submission that the Full Court's decision in Bourke stands for the proposition that a self-executing order is interlocutory, rather than final. The relevant orders made by the Court in Jackson (No 2) and Jackson (No 3) are plainly interlocutory. Ms Jackson did not contest that the three relevant orders and judgments were interlocutory; indeed, they are described in those terms in her notices of appeal. 54 The HSU did not dispute that under s 24(1E) of the FCA Act a party could found an appeal from a final judgment on an interlocutory judgment and that, under that provision, the Court could take into account an interlocutory judgment in determining an appeal from a final judgment (as to which see Shannon v Commonwealth Bank of Australia [2014] FCAFC 108 at [17]-[18] per Logan J). However, as Mr Irving submitted, the notices of appeal here were drafted in a way which directly challenged the relevant interlocutory orders made by the primary judge rather than simply challenging them derivatively through the final judgment. The drafting of the notices of appeal and their reference to appealing not only from the whole of the judgment and orders made on 19 August 2015, but also "further" from the three relevant interlocutory orders and judgments means that leave to appeal was required under s 24(1A) of the FCA Act. The appeals in respect of these interlocutory matters are incompetent because, at the time the notices of appeal were filed, Ms Jackson had neither sought nor obtained leave to appeal in respect of them. And, although there was no requirement to obtain leave to appeal from the primary judge's final orders made on 19 August 2015, the notices of appeal specified no other grounds of appeal in relation to those final orders other than those pleaded in respect of the interlocutory orders. Necessarily, therefore, the appeals are incompetent in their entirety.

Conclusion 55 For these reasons, the objections to competency should be upheld and the appeals dismissed as incompetent. The HSU stated that it did not press its application for costs. Accordingly, there will be no order as to costs. Orders will be made accordingly. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jessup, Griffiths and White.