Road Transport (Third-Party Insurance) Act 2008 (ACT), ss 5A, 97, 136, 137, 139, 140, 141, 142, 143, 155, 156A, Pt 4.7, 4.8, Ch 4

Road Transport (Third-Party Insurance) Amendment Act 2012 (ACT)

Court Procedures Rules 2006 (ACT), rr 1179, 1306, Div 2.8.7

ACT, Parliamentary Debates, Legislative Assembly, 22 November 2007

Supreme Court of the Australian Capital Territory, Practice Direction No 1 of 2012 - Practice Direction - Docket system Civil matters - callovers, duty judges, the Master's applications list and return of subpoenas, 13 August 2012

Road Transport (Third-Party Insurance) Bill 2007 (ACT)

Calderbank v Calderbank [1976] Fam 93

Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" [1976] HCA 65; (1976) 136 CLR 529

Choi v Collansi [2002] QCA 441; (2002) 37 MVR 381

Douch v Betts [2013] ACTSC 126

Gitsham v Suncorp Metway Insurance Ltd [2002] QCA 310; [2003] 2 Qd R 251

Luck v Lusty EMS Pty Ltd [2008] QSC 146; [2008] 2 Qd R 522

Sobey v Nicol [2007] FCAFC 136; (2007) 245 ALR 389

Suncorp Metway Insurance Ltd v Jovanovic [2004] QSC 441

Verstappen v Fordyce (2004) 41 MVR 275

Young v Rothin [2009] ACTSC 71

INSURANCE AUSTRALIA LIMITED TRADING AS NRMA INSURANCE

1. The parties and their lawyers attend a compulsory conference under Pt 4.7 of the Road Transport (Third-Party Insurance) Act 2008 (ACT).

2. The parties be heard as to the date, time and place where the conference is to be held.

3. Under s 142 of the Road Transport (Third-Party Insurance) Act, the obligation on the parties to exchange mandatory final offers be dispensed with.

1. The plaintiff, Dilbagh Singh, claims damages for personal injuries suffered in a motor vehicle collision said to have occurred on Kings Avenue, Parkes, ACT on 26 February 2010 when the car he was driving collided with a car driven by the first defendant, Emma Rodden.

2. Mr Singh claims that he suffered injuries to his neck, chest, abdomen, arms and knees and some psychological injury.

3. He claims that the collision was caused by the negligence of Ms Rodden. By letter dated 21 October 2010, Ms Rodden's insurer has admitted liability for her conceded negligence.

4. On 31 May 2013, Mr Singh commenced proceedings in this Court against Ms Rodden and her compulsory third party insurer seeking damages and other orders.

5. The defendants have now sought an order that the Court fix a date, time and place for a compulsory conference between the plaintiff and the defendants.

6. Such a conference is provided for by s 136 of the Road Transport (Third-Party Insurance) Act 2008 (ACT). Indeed, s 136(1) makes such a conference a pre-condition to the commencement of court proceedings. That section is in the following terms:

136 Compulsory conference

(1) Before a claimant for a motor accident claim brings a court proceeding based on the motor accident claim, the parties for the motor accident claim must have a conference (the compulsory conference).

(2) Any party may call the compulsory conference -

(a) at a time and place agreed by each party; or

(b) if more than 6 months has passed since the respondent received, or is taken to have received, the claimant's complying notice of claim - at a reasonable time and place nominated by the party calling the conference.

(3) On application by a party, the court may decide the time and place for the compulsory conference and make any other orders the court considers appropriate in the circumstances.

(4) The parties may, by agreement, change the time or place for holding a compulsory conference or adjourn a compulsory conference from time to time and from place to place.

(5) The compulsory conference may be conducted, if the parties agree, by telephone, closed-circuit television or another form of communication allowing contemporaneous and continuous communication between the parties.

[note omitted]

7. Procedures for such a conference are set out in ss 139 and 140 of the Road Transport (Third-Party Insurance) Act. Section 139 of that Act requires the parties to provide each other with:

(a) a copy of each document they possess relevant to the claim and the collision;

(b) a statement verifying that each such document has been provided;

(c) details of legal representation for the conference; and

(d) a certificate of readiness as defined in s 139, a different document to that of the same name provided for under r 1306 of the Court Procedures Rules 2006 (ACT): McIntosh v Hikechukwu (2011) 5 ACTLR 284 at 286; [4].

8. Section 140 of the Road Transport (Third-Party Insurance) Act requires each party to attend the conference and to take an active part in an attempt to settle the claim.

9. Thereafter, the compulsory conference is an important trigger for the making of mandatory final offers under s 141 of the Road Transport (Third-Party Insurance) Act. That section provides:

(1) This section applies if, for a motor accident claim -

(a) the compulsory conference has been dispensed with under section 137 (Compulsory conference may be dispensed with); or

(b) the motor accident claim is not settled at the compulsory conference.

(2) The claimant and the respondent for the motor accident claim must exchange written final offers (each of which is a mandatory final offers).

(3) However, if a respondent denies liability altogether, the respondent must give the claimant a written notice of denial (a mandatory final notice).

(4) If the respondent gives the claimant a mandatory final notice, for this Act, the respondent is taken to have given the claimant a mandatory final offer of $0.

(5) A mandatory final offer must identify how much of the offer is for non-economic loss.

10. Under s 142 of that Act, the court may dispense with the obligation to exchange mandatory final offers.

11. It appears that no compulsory conference was held prior to Mr Singh commencing these proceedings. A question arises as to the status of the proceedings, since the section makes the holding of such a conference a pre-condition to the commencement of court proceedings.

12. In Racic v Haltiner (2010) 4 ACTLR 224, Master Harper held that the failure to hold such a conference does not make the proceedings a nullity but an irregularity. This, however, justifies the Court, in an appropriate case, in striking out the proceedings or staying them until the compulsory conference is held. I respectfully agree.

13. The holding of such a conference was an important part of the legislative intention in making specific provision as part of the Act. This is plainly so on consideration of the contextual material. See s 142(1) of the Legislation Act 2001 (ACT).

14. In introducing the Road Transport (Third-Party Insurance) Bill 2007 (ACT), which became the Act, Mr Stanhope, then Chief Minister, said (in ACT, Parliamentary Debates, Legislative Assembly, 22 November 2007, 3692-4) that the government expected the Bill would

modernise claims handling and procedures so that there is primary emphasis on health outcomes, as opposed to inordinately extended processes, leading to lump sum compensation, ground out over a number years.

...

Yes, it will save insurers money. So what - if the injured people, the people for whom the CTP scheme exists, physically recover to the maximum extent possible, and receive the financial compensation to which they are entitled, much sooner? It will lower the premiums motorists pay, as will the reduction in legal costs due to mandating a more efficient legal process.

15. This is made explicit in s 5A of the Road Transport (Third-Party Insurance) Act, which sets out its main objects to include "to keep the costs of insurance at an affordable level" (s 5A(c)) and "to encourage the speedy resolution of personal injury claims resulting from motor vehicle accidents" (s 5A(e)).

16. I note that s 137 of the Road Transport (Third-Party Insurance) Act permits the court to dispense with the compulsory conference, but may only do so "for good reason". It also provides in sub-section 2:

In considering whether to dispense with the compulsory conference, the court must take into account the extent of compliance by the parties with their respective obligations for the motor accident claim.

17. Clearly, the trend of authority is that such conferences should be held. See Racic v Haltiner at 228-9; [13]; Douch v Betts [2013] ACTSC 126 at [18]- [19].

18. The scheme of the Act is similar to that under the Motor Accidents Insurance Act 1994 (Qld). The Queensland Court of Appeal described the compulsory conference also required under that scheme as "a significant event in the regime established by ... the Act": Gitsham v Suncorp Metway Insurance Ltd [2002] QCA 310; [2003] 2 Qd R 251 at 255; [16]. As Byrne SJA said in Luck v Lusty EMS Pty Ltd [2008] QSC 146; [2008] 2 Qd R 522 at 523; [6]:

The compulsory conference is an important feature of a legislative scheme that aims ... to promote early settlement of claims and to ensure the parties are prepared for trial before litigation even commences ... To ensure that the parties are appropriately informed of matters that might affect a decision whether to compromise a claim and, if so, on what terms, the Act requires information pertinent to the claim to be supplied to the other party.

19. Nevertheless, s 137(1) provides for dispensation of the requirements. So far as I have been able to determine, this provision has not been subject to consideration by the ACT courts as to how the question should be considered and the matters which should be taken into account, although there was a passing reference to the issue in Furler v Haureliuk (2010) 4 ACTLR 230 at 232; [6].

20. In Verstappen v Fordyce (2004) 41 MVR 275 at 275; [4], Atkinson J pointed to what had been described in Choi v Collansi [2002] QCA 441; (2002) 37 MVR 381 at 383 as "a wide and unfettered discretion" as to the exercise of the power to dispense with a compulsory conference and considered relevant factors, saying:

There are a number of factors which in my view are relevant to the exercise of the discretion in this case. One is the objects of the Act and how they are best satisfied, a second is the behaviour of the parties leading up to the compulsory conference and the third is the desire for certainty in personal injury actions involving, as they do, persons as plaintiffs who very often have little, if any, experience of litigation apart from this action.

21. The principle purpose of the compulsory conference is, as Fryberg J said in Suncorp Metway Insurance Ltd v Jovanovic [2004] QSC 441 at 5, "to enable negotiations to take place between the parties with a view to settling the proceedings" and this is clearly consistent with the purposes of the Act.

22. On 7 February 2013, the defendants' insurer wrote to Mr Singh's lawyers referring to a letter of 4 December 2012 which had contained an offer of settlement and indicated that it would like to arrange a compulsory conference. It set a date, time and place, noting that failing a response within seven days, that would be the date, time and place for the compulsory conference. That conference was, it appears, not held.

23. These proceedings were then commenced on 31 May 2013.

24. On 3 July 2013, lawyers for the defendants' insurers wrote to Mr Singh's lawyers asserting that the proceedings had been commenced without the pre-trial procedures in Ch 4 of the Road Transport (Third-Party Insurance) Act having been completed. The lawyers indicated that they did not propose to file a Notice of Intention to Respond until the period for acceptance of mandatory offers (see s 143 of the Road Transport (Third-Party Insurance) Act) had expired. They gave notice that, unless a satisfactory response was received, they would prepare an application for a stay of the proceedings and referred to Racic v Haltiner.

25. On 18 July 2013, Mr Singh's lawyers responded. They stated that Mr Singh had been referred to a pain specialist for treatment, details of which had been provided to the defendants or their lawyers. They had sought funding for this treatment but had not been favoured with a response to that request. They added that they would not be in a position to participate in a compulsory conference until the recommended treatment had been completed and Mr Singh was medically stable.

26. On 23 July 2013, the defendants' insurer's lawyers replied, agreeing to the funding sought but on condition that progress reports of treatment be provided and that a compulsory conference be held within twenty-eight days of the final treatment at the Canberra Injury Management Centre.

27. Mr Singh's lawyers replied the next day indicating that they did not object in principle to a compulsory conference following treatment but making the caveat that, if Mr Singh remained medically unstable following the treatment, or if further treatment was required, they would not be in a position to participate meaningfully in such a conference.

28. The following day, the lawyers for the insurers for the defendant wrote again and set a date, time and place for a compulsory conference four weeks later. They indicated that, unless Mr Singh's lawyers agreed to attend the conference, they would prepare and file an application for an order that the court decide the time and place for a compulsory conference.

29. On 5 August 2013, Mr Singh's lawyers replied, reiterating that they were not in a position to participate in a compulsory conference because all the recommended treatment had not been undertaken. They stated that they would resist any application as foreshadowed.

30. On 16 August 2013, the defendants filed a Notice of Intention to Respond. It was not a conditional Notice of Intention to Respond.

31. Ordinarily, it would seem, the filing of a Notice of Intention to Respond, at least one that is unconditional, would waive any irregularity as to the commencement of proceedings or as to service of the originating process. See Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" [1976] HCA 65; (1976) 136 CLR 529 at 539.

32. However, on the same day this application was made by the defendants.

33. I received detailed information about the medical condition of Mr Singh. I do not need to canvass that in detail; the summary below will suffice.

34. Mr Singh was referred by the second defendant to Dr David Macintosh, Consultant Orthopaedic Surgeon, for a medical assessment. Dr Macintosh opined, in a report dated 28 January 2011, that Mr Singh has suffered soft tissue injuries to his neck, lower trunk and lower back and both knees. His opinion was that all conditions had resolved, save for the injury to his right knee, which suffered a significant contusion to the bone of the patella and the medial tibial plateau of the right knee. He considered that the condition would improve "significantly" over the following twelve months but "the prognosis is guarded and he needs further assessment by an orthopaedic surgeon".

35. Mr Singh underwent bilateral knee arthroscopies on 3 August 2011.

36. On 5 May 2012, Mr Robin Jackson, Consultant Orthopaedic Surgeon, provided a Report to the second defendant. In relation to the diagnosis and prognosis, his opinion was as follows:

1. a minor soft tissue injury to his cervical spine, which has recovered;
2. a possible minor soft tissue injury to the lumbar spine, which has recovered;

1. injuries to both knees, with evidence from investigations to include damage to menisci and chondral damage.

Prognosis for his knee joints, in my opinion, has to be guarded on the basis that he has not improved from the surgical procedures undertaken and still described high levels of pain and disability.

37. On 19 September 2012, a report was prepared for the lawyers for Mr Singh by Dr G G Griffiths, Consultant Surgeon. He considered that Mr Singh required further medical treatment and referred to some "helpful" recommendations. He expressed the outcome of such treatment as being hopeful that it "would achieve significant symptomatic relief of both physical and psychological aspects of his problems."

38. In 2013, Mr Singh was referred to the Canberra Injury Management Centre under the care of Dr Garth Eaton, Occupational Physician. The program included Psychological Treatment, Pain Management Education, Hydrotherapy, a Gym Programme and Manipulative Therapy.

39. On 29 May 2013, Professor Richard Jones, Consultant Physician in Rehabilitation Medicine provided a Report to the second defendant. Professor Jones accepted that Mr Singh's current symptoms were connected to the accident. He concluded that the "treatment programs would seem appropriate in the circumstances".

40. That treatment program, however, had not concluded at the time of this application.

41. Section 5A of the Road Transport (Third-Party Insurance) Act (as partially quoted above at [15]) sets out the objectives of the Act and, in particular, these include:

(c) to keep the costs of insurance at an affordable level; and

...

(e) to encourage the speedy resolution of personal injury claims resulting from motor accidents; and

(f) to promote and encourage, as far as practicable, the rehabilitation of people who sustain personal injury because of motor accidents

42. Clearly the compulsory conference is an important contribution to those objectives and, as such, should be given significant weight by the Court as a step that should be taken and in a timely fashion.

43. The defendants pointed to the significant responsibilities that were imposed on the person against whom a claim is made and this will, in reality, usually be the responsibility of an insurer. These responsibilities, in particular to make a fair and reasonable estimate of the plaintiff's damage and make an offer, are set out in s 97 of the Road Transport (Third-Party Insurance) Act and are clearly designed to achieve the objectives of that Act.

44. Mr J Pappas, who appeared for the defendants, submitted that the compulsory conference was an important part of the procedures that permitted an insurer to discharge its obligations, even if there is a level of uncertainty as to the precise medical condition or prognosis of a plaintiff.

45. There are some difficulties with this submission because of the terms of the Act, which was clearly drafted without a keen appreciation of the realities and practicalities of the nature of claims of the kind regulated under the Act.

46. This can be seen in the requirement under s 139 of the Act, for the parties are to sign, at least 7 days prior to the compulsory conference, a certificate of readiness. The certificate requires the parties to have obtained "all investigative material required for the trial", and expert (including medical) reports from "each person the party proposes to call as an expert witness at the trial".

47. Interestingly, the provision has been modified since the decision in McIntosh v Hikechukwu, for the certificate under the section then provided that the parties had to certify that the certifying party was "in all respects ready for - ... (ii) the trial".

48. His Honour had held in that case that such a requirement could not be read literally or it would exclude the important pre-trial procedures that are so important in preparation for trial, but are only available after proceedings had been commenced. His Honour referred to discovery and production of documents and interrogatories, recognising that these are the exception rather than the rule in motor vehicle personal injuries litigation, but also the procedures under Div 2.8.7 of the Court Procedures Rules for facilitating non-party production of documents. Another important procedure would be the subpoena of documents.

49. In any event, the provision requiring a certification of readiness for trial (as opposed to for the compulsory conference, that is, the section quoted in [47]) was omitted by the Road Transport (Third-Party Insurance) Amendment Act 2012 (ACT), which commenced on 1 January 2013. Interestingly, as though such a significant change was being slipped through, the Explanatory Statement made no express reference to the change but referred to the clauses which included that which made the change in the following rather odd way: "These clauses make technical corrections applying to some of the notes in the CTP Act in line with the provisions referred to by those notes."

50. It seems to me that to omit such a certification of readiness for trial to be rather more than a "technical correction" and it certainly seems to me to be amending a substantive provision, rather than a note in the Road Transport (Third-Party Insurance) Act (which was the Act referred to as the CTP Act).

51. Master Harper held, however, in McIntosh v Hikechukwu, that the certificate required under s 139 could not exclude the proper - and statutorily permitted - further preparation for trial after the commencement of proceedings which would ordinarily follow a compulsory conference preceded by the certification. Indeed, the amendment to s 139, to which I have referred, seems to me to reinforce the view that approach of the learned Master is correct.

52. Mr Pappas submitted that the compulsory conference would provide a proper opportunity to discuss settlement of proceedings in a case where liability was not in dispute and the only issue was the quantum of damages. He pointed out that the Statement of Claim disclosed that the plaintiff's lawyers had completed a good deal of preparatory work, which showed that they were able to identify a long list of disabilities, list an impressive array of treating professionals and provide extensive and appropriate details of economic loss. It was, he described it, a well-prepared pleading showing evidence of careful and comprehensive preparation.

53. Thus, he submitted, the plaintiff's lawyers were approaching the question of a compulsory conference with "old thinking", an approach that was rooted in that which applied before the Road Transport (Third-Party Insurance) Act had so substantially changed the dynamic of compensation claims in 2008.

54. Mr D Richards, for the plaintiff, submitted that the plaintiff's lawyers had approached the issue in accordance with current practice in the Territory. He submitted that it was common for such claims to be prosecuted by the commencement of proceedings followed by a consideration of a compulsory conference. I am not in a position to comment on this approach.

55. He explained that the position of the plaintiff was not that a compulsory conference should not be held, but that it should not be held at this time.

56. He submitted that the problem in this case was that the plaintiff's injuries had not stabilised, so the consideration of the compulsory conference created problems.

57. Since, he submitted, it could not be determined whether Mr Singh's disabilities were going to resolve in the foreseeable future, or whether they were going to create significant problems for him in the long term, it was not possible to formulate a proper assessment of his damages.

58. This created a significant problem for Mr Singh because Pt 4.8 of the Road Transport (Third-Party Insurance) Act provides for mandatory final offers to be made if a claim is not settled at a compulsory conference.

59. Section 141 provides that both parties must exchange written final offers for what the claim might be settled for. These are the mandatory final offers. Where a claim is not settled at the compulsory conference, the mandatory final offers must be exchanged at the end of the conference. Thus, a party proceeding to such a conference will have to have formulated such an offer, or at least the parameters of such an offer, before the conference, though, of course, the conduct of the conference may change the ultimate form of the mandatory final offer.

60. The sting for the plaintiff is that the mandatory final offer has statutory consequences as to costs. Thus, ss 155 and 156A of the Road Transport (Third-Party Insurance) Act provide that, where damages are awarded in court proceedings that are less than the plaintiff's mandatory final offer, the claimant may be required to pay the defendant's costs from the date of the offer and they may be indemnity costs.

61. In this respect, the mandatory final offers have some similarity in effect to Calderbank offers, named after Calderbank v Calderbank [1976] Fam 93.

62. This is compounded by the statutory provisions which, unlike a Calderbank offer, give no opportunity to vary such an offer.

63. The plaintiff's difficulty, as identified by Mr Richards, when injuries or disabilities are not stabilised, is that, to protect against having to pay a defendant's costs, a plaintiff may have to make an offer that is lower than what might be proper if the injuries never stabilise or resolve, but this may well not properly compensate the plaintiff for the injuries suffered. A high offer may adequately compensate the plaintiff, but put him or her at a risk of costs. Depending on the amount of the claim, these costs may be assessed as indemnity costs which may be quite considerable.

64. This, Mr Richards submitted, would be quite an unfair position into which Mr Singh would be put.

65. He acknowledged that a compulsory conference might be adjourned under s 136(4) of the Road Transport (Third-Party Insurance) Act, but pointed out that this had to be by consent.

66. Where Mr Singh's medical condition had not stabilised, the effect of the strict application of the provisions gives an unfair advantage to the defendants, who would benefit from the pressure on him to make a low mandatory final offer, which may be accepted, or run a risk as to an adverse costs order if the treatment which had not then started proved successful.

67. Of course, to some extent that is always a risk and, indeed, the defendants also face a risk if the mandatory final offer they make is low, for if the plaintiff recovers more than that an indemnity costs order may be made against him or her.

68. It seems to me that the compulsory conference is a critical part of the regime that has been established by the Road Transport (Third-Party Insurance) Act.

69. While the bar is not high, s 137 does require "good reason" before the court should dispense with such a conference. What is a good reason has not been the subject of consideration, so far as I could see in any published decisions of this Court.

70. As I did not hear comprehensive submissions on the construction of that phrase, I will not essay an explanation of it. The fluctuating nature of a plaintiff's injuries may amount to such a reason, especially where the proceedings have not commenced and the limitation period is looming. That is not the case here.

71. It seems to me that the real vice is the requirement for mandatory final offers if settlement is not achieved at the conference. There is clear unfairness to both parties in that requirement where the basis of a fair estimate of damages is so uncertain.

72. In that regard, I note that s 142 of the Road Transport (Third-Party Insurance) Act gives an almost unfettered discretion to the court to dispense with the obligation to exchange mandatory final offers. There is no reference to "good reason" in the section though, of course, the court's discretion must be exercised judicially and confined by the subject matter of the section. See Sobey v Nicol [2007] FCAFC 136; (2007) 245 ALR 389 at 403; [69]- [71], though in a different specific context.

73. A compulsory conference is likely to be able to address a number of issues, even if settlement may be unlikely because of the instability of the medical condition of Mr Singh.

74. It may even be that either party will make an offer with which they are satisfied and which the other party will accept. In all litigation, there is a significant degree of uncertainty and a party may value the certainty of acceptance of an offer more highly than holding out for the absolute best quantity (whether high for the plaintiff or low for the defendant) that the facts as they are perceived may bear.

75. I further note that personal injury litigation does not necessarily await a complete answer to all imponderables. This is the basis of an award in damages of a buffer as in Young v Rothin [2009] ACTSC 71 at [268]- [281]. There would be no such need if all possible outcomes were certain.

76. It does not seem to me that, in this case, where much of the relevant issues have been carefully considered, the final resolution of the issue surrounding Mr Singh's knee problems should prevent a compulsory conference being held. The parties have the power to adjourn the conference if they wish, though both must consent.

77. Indeed, even if they do not adjourn, there is no reason why the parties should not subsequently engage in mediation, which may, indeed, be ordered by the Court under r 1179 of the Court Procedures Rules.

78. Accordingly, I do not consider that I should either dispense with or delay the compulsory conference.

79. I do consider, however, that I should dispense with the obligation on each party to make mandatory final offers.

80. It might be said that such offers are the real teeth to the regime established by the Road Transport (Third-Party Insurance) Act.

81. From experience, I do not have such a jaundiced view of the lawyers engaged in personal injuries litigation that it is necessary to impose such discipline in every case, all the time. The discipline imposed by the mandatory final offer requirement can be valuable, can sharpen practice and can focus the mind. Many cases are resolved, however, by the common sense and ordinary negotiation of competent lawyers. Where the discipline of mandatory final offers has the real capacity to inflict injustice, I am satisfied that there are other mechanisms that the parties and the Court can employ to see that the excesses of such litigation, that has sometimes been seen in the past, can be curbed.

82. I considered whether I should simply defer the making of mandatory final offers. I am not satisfied that the legislation gives me that power. The procedure is linked expressly to the compulsory conference. In any event, I am satisfied that there are, especially with the docket system (Supreme Court of the Australian Capital Territory, Practice Direction No 1 of 2012 - Practice Direction - Docket system Civil matters - callovers, duty judges, the Master's applications list and return of subpoenas, 13 August 2012), both procedures and opportunities to make appropriate other arrangements.

83. I will make orders accordingly. I will hear the parties as to the terms of the orders and as to costs.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.