State of New South Wales v Malek Fahd Islamic School Limited

Education Act: Prior to 28 October 2014

1. At all material times prior to 28 October 2014, ss 21 and 21A of the Education Act relevantly provided [5] : 21 Financial and other assistance in respect of non-government school children (1) The Minister may provide financial assistance or other assistance, or both, in respect of non-government school children. … 21A Financial assistance not to be paid to non-government schools operating for profit (1) Financial assistance under section 21 may not be paid (whether by way of per capita grant or otherwise) to or for the benefit of a non-government school that operates for profit. (2) A non-government school is taken to operate for profit if any part of its proprietor's assets (in so far as they relate to the school) or income (in so far as it arises from the running of the school) is paid to any other person. (3) Despite subsection (2), a non-government school is not taken to operate for profit just because of: (a) any payment that its proprietor makes to a person in connection with the person's activities as a member of the governing body of the school, being a payment made by way of an honorarium or as reimbursement for out-of-pocket expenses, or (b) any payment that its proprietor makes to a student of the school in connection with any prize, scholarship or other activity as a student of the school, or (c) any payment that its proprietor makes to a person in connection with the provision, at no more than reasonable market value, of property, goods or services required in relation to the running of the school, or (d) any payment that its proprietor makes to a related organisation that does not operate for profit, within the meaning of this section, in connection with the provision of property, goods or services required in relation to the running of the school. (4) If the Minister is of the opinion that a non-government school receiving financial assistance under section 21 may be operating for profit, the Minister may, by order in writing, require its proprietor to furnish the Minister with information concerning any contracts or other arrangements entered into by the proprietor for the provision of property, goods or services in relation to the running of the school.
2. The State commenced the substantive proceedings in 2013. It originally pleaded its case by reference to these provisions. Thus paragraphs 1 to 5 of the Statement of Claim pleaded that between 1 October 2010 and 30 July 2012, the Minister administering the Education Act caused to be paid $8,492,882.81 to the School pursuant to s 21. I note that neither the pleadings, nor any evidence adduced on this application, asserted, much less proved, anything about the means by which the power to provide funding conferred by s 21(1) was in fact exercised from time to time. The provision refers to "assistance" in "respect of non-government school children" but it is not known how that assistance was provided. Thus, for example, it is not known whether the Minister made a single determination in respect of all non-government school children according to some formula and simply directed that amounts be paid consistent with the formula, or whether there was a separate determination in respect of the children at each particular non-government school on an annual basis. Equally, it is not known over what periods of time any such determinations were made.
3. In any event, paragraph 6 of the Statement of Claim pleaded that on or about 30 June 2012, the "Minister decided" that the School had been operating for profit during the period 1 January 2010 to 30 July 2012. Paragraph 7 of the Statement of Claim pleaded, in the alternative, that the School was operating for profit within the meaning of s 21A of the Education Act during that period.
4. Paragraph 8 pleaded that as a consequence of either paragraph 6 or 7 the payment made to the School was undertaken without Parliamentary authority.
5. Paragraphs 6 and 8 of the Statement of Claim suggested, and on this application the Minister's counsel, Ms Davidson, confirmed, that the State and the Minister's primary contention is that under the Education Act in force prior to 28 October 2014, the question of whether a school was operating for a profit contrary to s 21A, was a matter for Ministerial opinion or satisfaction, and not a matter to be objectively determined by a Court.
6. However, paragraph 7 of the Statement of Claim assumes an alternative construction. Paragraph 7 raises a question of fact for determination by the Court as to whether the School was in fact operating for a profit during the period 1 January 2010 to 30 July 2012.
7. On this application it is not necessary, nor appropriate, to resolve which construction is correct. It suffices to state that, given the manner in which s 21A was drafted, especially the absence of any express reference to the Minister making a determination that the School operated for profit, or any express suggestion that Parliamentary authorisation was dependent upon the Minister forming a particular opinion, then it follows that the construction contemplated by paragraph 7 of the Statement of Claim is reasonably open (see Plaintiff M70/2011 v Minister for Immigration and Citizenship; "the Malaysian Declaration case" [2011] HCA 32; (2011) 244 CLR 144 at [106] to [107]).

Education Act: After 28 October 2014

1. With effect from 28 October 2014, the Education Act was relevantly amended by the Education Amendment (Not-for-profit Non-Government School Funding) Act 2014 (NSW) (the "Amendment Act"). The effect of the Amendment Act was that s 21 was renumbered as s 83B and included in a new Division 3 of Part 7. Section 21A was deleted and instead the balance of new Division 3 of Part 7 addressed the funding of non-government schools and included a requirement that non-government schools receiving assistance not operate for profit. To that end, the new ss 83C and 83D provide: 83C Financial assistance not to be provided to schools that operate for profit (1) The Minister must not provide financial assistance (whether under this Division or otherwise) to or for the benefit of a school that operates for profit. (2) A school operates for profit (without limiting the circumstances in which it does so) if the Minister is satisfied that: (a) any part of its proprietor's assets (in so far as they relate to the school) or its proprietor's income (in so far as it arises from the operation of the school) is used for any purpose other than for the operation of the school, or (b) any payment is made by the school to a related entity or other person or body: (i) for property, goods or services at more than reasonable market value, or (ii) for property, goods or services that are not required for the operation of the school, or (iii) for property, goods or services that is in any other way unreasonable in the circumstances having regard to the fact that financial assistance is provided to or for the benefit of the school by the Minister, or (c) any payment is made by the school to a person in connection with the person's activities as a member of the governing body of the school unless it is in reimbursement for a payment made by the person in connection with the operation of the school. … 83D Declaration that school operating for profit (1) The Minister may declare that a school operates for profit or has operated for profit during a specified previous period, or both (a for profit declaration). (2) The Minister may make a for profit declaration only if the Advisory Committee recommends that the declaration be made because the school operates for profit or has so operated for profit (as the case requires). (3) A for profit declaration in respect of a school is conclusive evidence that the school operates for profit or has so operated for profit (as the case requires). (4) The Minister may revoke a for profit declaration at any time, and is to do so if the Advisory Committee advises the Minister, or the Minister is satisfied, that the school no longer operates for profit. (5) A for profit declaration may specify a period to which it applies that is wholly or partly before the declaration is made (including before the commencement of this section). (6) The Minister's obligation under this Division not to provide financial assistance to or for the benefit of a school that operates for profit applies, whether or not a for profit declaration has been made." (emphasis added)
2. The Amendment Act also inserted s 83J(1), which empowers the Minister to recover amounts paid in respect of a period when the School operated for profit. Section 83J(3) enabled that amount to be recovered as a debt due in a court of competent jurisdiction.
3. Thus, these provisions seek to resolve the issue left open by the earlier form of the Education Act noted above, namely, whether the question of whether or not a school was operating for a profit was a matter to be determined by the Minister or by the Court. These provisions also introduced a more restrictive view of the concept of operating for a profit than that provided for in former s 21A(2) and (3).
4. However, both funding periods the subject of these proceedings pre-date the coming into force of the Amendment Act. The position for previous years was sought to be addressed by the insertion into the Education Act of a new Part 14 into Schedule 3 which relevantly provides: 30 Meaning of "operate for profit" in relation to period before commencement of amending Act and during transition period For the purposes of this Act, the determination of whether a non-government school operated for profit during any period before the commencement of the amending Act, and during the period of 3 months after that commencement, is to be determined in accordance with section 21A, as in force immediately before the repeal of that section by the amending Act. … 32 Recovery of payments made before the commencement of amending Act The Minister may recover under section 83J an amount of financial assistance paid to or for the benefit of a non-government school before the commencement of the amending Act. 33 Declaration that particular non-government school operating for profit (1) On the commencement of the amending Act, a for profit declaration is taken to have been made under section 83D (as inserted by the amending Act) that the Malek Fahd Islamic School at 405 Waterloo Road, Greenacre, operated for profit from 1 January 2010 until 31 July 2012. (2) The Minister may revoke any such declaration in the same way that the Minister may revoke a for profit declaration under section 83D.
5. Thus, in enacting the Amendment Act, Parliament adopted the approach of deeming the Minister to have made a profit declaration under s 83D in respect of the School for the period 1 January 2010 to 31 July 2012. Absent any revocation of that declaration under clause 33(2), s 83J(3) enables the amount paid to the School in that period to be recovered as a debt due in a court of competent jurisdiction.
6. Sometime after the passage of the Amendment Act, the State amended its Statement of Claim so that it also sought recovery of the amount paid during the period 1 January 2010 to 31 July 2012 under s 83J, relying on the deemed profit declaration found in clause 33 of Part 14 of Schedule 3. The School filed an Amended Defence. Amongst other matters, the School challenged the constitutional validity of clause 33 of Part 14 of Schedule 3.

The Proposed Cross-Claim

1. As stated, the School now seeks leave to file a Second Further Amended Statement of Cross-Claim and the Minister resists leave being granted. In view of the position taken by the parties as outlined at [2] to [3] above, the only sensible way to approach the respective applications is to address each portion of the proposed cross-claim in turn.

Paragraphs 5 to 7

1. Paragraphs 5 and 6 of the proposed cross-claim attack a decision said to have been made by the Minister on or about 31 July 2012 to cease funding the School. Particulars (ii) to (xiii) to paragraph 6 of the proposed cross-claim identify various grounds of judicial review in relation to that decision. Particular (i) asserts the decision was invalid because, as a matter of objective fact, the School did not operate for profit throughout the period 1 January 2010 to 31 July 2012. These paragraphs, and the particulars, all address the position under the Education Act prior to its amendment. They would appear to be only likely to arise if the State was not able to rely upon the deemed declaration in clause 33 of Part 14 of Schedule 3 noted above. In the end result, no attack was made by the State on this part of the proposed cross-claim. It follows from the observation in paragraph [13] above that particular (i) to paragraph 6 rests upon a reasonably arguable construction of the Education Act as in force prior to 28 October 2014.
2. No complaint is made in respect of paragraph 7 of the proposed cross-claim and it need not be mentioned further.

Paragraphs 8 and 9

1. Paragraphs 8 and 9 of the proposed cross-claim complain that since 31 July 2012 the Minister has failed and refused to reinstate the funding for the School for the period 31 July 2012 to 31 December 2013 and that failure and refusal was unlawful and ultra vires. The Minister takes three objections to these paragraphs. The first is that the pleading does not identify any alleged "decision" made by the Minister to refuse funding. The second is that these allegations are in any event overtaken by subsequent parts of the proposed cross-claim that plead a specific request made by the Minister to exercise the power to provide funding and an ultra vires and unlawful refusal of that application by the Minister in 2016. The third complaint is that so much of paragraph 9 that contends that a failure and refusal to reinstate funding was unlawful because, as a matter of objective fact, the School did not operate for a profit during the period 31 July 2012 to 31 December 2013 rests upon an untenable construction of the Education Act (a matter I have already rejected at [13]).
2. I accept the first point made by the State. In the period 31 August 2012 to 31 December 2013, subs 21(1) of the Education Act conferred on the Minister a power, but not an express duty, to provide funding. Paragraph 8 of the proposed cross-claim only makes sense if there was either some duty to provide funding or there could be identified some active intellectual process that amounted to a refusal to provide funding. The proposed cross-claim does not plead any facts capable of establishing either, although as noted, a later part of the pleading pleads an actual request and refusal for this period. It follows that leave to re‑plead paragraphs 8 and 9 of the proposed cross-claim will be refused (and to the extent necessary, the equivalent paragraphs in the existing cross-claim will be struck out).

Paragraphs 10 and 11

1. Paragraph 10 of the proposed cross-claim pleads as follows: "Further on 23 October and 13 November 2012 the Minister refused and failed to reinstate the said funding from 1 January 2012 and on an ongoing basis."
2. Paragraph 11 then pleads that this refusal to reinstate funding was unlawful and ultra vires. Extensive particulars of that allegation are provided including particular (i) which alleges that the failure and refusal was invalid because, as a matter of objective fact, the School did not operate for profit throughout the period 1 November 2012 to 31 December 2013.
3. The State raises the same three issues with this part of the proposed cross-claim as it did with paragraphs 8 and 9. In relation to the first issue, the basis upon which it is pleaded that a decision was made by the Minister on about 23 October 2012 is a letter of that date from the Crown Solicitor's Office ("CSO") to the School's solicitors stating, inter alia: "Despite the termination of the Services Agreement, the Minister does not consider that he can reinstate funding to the School from the period from 31 December 2011 until the present. On 30 July 2012, he formed the view on the basis of the material before him that the School was operating for profit. The subsequent termination of the Service Agreement (albeit with retrospective effect) cannot alter the fact that, as at July (at least in the Minister's opinion) the School was, during that past period, operating for profit."
4. This portion of the letter is sufficient to support the pleaded assertion that the Minister made a decision of the kind pleaded on or about 23 October 2012.
5. In support of the pleaded assertion that a decision was made on or about 13 November 2012, Senior Counsel for the School, Mr Cheshire SC, pointed to a letter of that date from the CSO to his instructing solicitors which was tendered on this application. I will not set out the terms of the letter. It suffices to state that the CSO recounted their instructions from the Minister concerning various matters that further explained the letter of 23 October 2012. The letter also specified certain material that the Minister may require before he made a positive decision in the School's favour. The letter does not contain any material capable of supporting the existence of the decision pleaded in paragraph 10 of the cross-claim as having been made on 13 November 2012. That aspect of paragraph 10 cannot be sustained.
6. The second basis of objection by the State to this part of the proposed cross-claim was its contention that there was no utility in the School seeking a review of any alleged decision made in October 2012 to refuse funding from 1 January 2012 on an ongoing basis in circumstances where a further decision was made to refuse funding in 2016 and a new statutory regime for the making of such decision came into force in October 2014.
7. As I will explain, a decision was made in 2016 to refuse funding related to a slightly different period, namely 1 August 2012 to 31 December 2013, but nothing appears to turn on the difference between that period and the period referred to in paragraph 10 of the proposed cross-claim.
8. Mr Cheshire SC submitted that there is utility in his client continuing to challenge the alleged decision made in October 2012 because, so it was said, firstly the error made in the 2012 decision continued to "infect" later decisions and secondly if a later decision is quashed reliance might be placed by the Minister on some earlier decision to deny funding.
9. The first point takes the matter nowhere. If there is some error that is manifest in 2012 which is said to "infect" later decisions, then that should be pleaded as part of a challenge to those later decisions. That circumstance, even if established, does not give a challenge to the earlier decision any greater utility than it otherwise has. As for the suggestion that the State or the Minister might rely upon an earlier decision of the Minister to justify a refusal of funding, that does not assist either. The accepted fact that the Minister did revisit the question of funding for ostensibly the same period in 2016 is inconsistent with any suggestion that the Minister might take that course. Further, even if a challenge to both the 2012 and 2016 decisions was successful, that would only result in a reconsideration which would occur by reference to the Education Act as amended. Thus, a revisitation of the alleged October 2012 decision could not lead to any different result than that which might be achieved by success in relation to the 2016 decision or the making of a new request for funding under the Education Act as amended.
10. It follows that I will decline leave to the School to file a proposed cross-claim containing paragraphs 10 and 11, and to the extent necessary, will strike out the equivalent paragraphs of the existing cross-claim along with prayer 3 of the claims for relief which appears to relate to those paragraphs.

Paragraph 12

1. Paragraph 12 of the proposed cross-claim pleads that, on or about 13 November 2012, the Minister unlawfully fettered his power under s 21 and unlawfully applied s 21A by stipulating in the letter of the same date various conditions which had to be met before funding would be restored.
2. Arguably the letter dated 13 November 2012 does purport to stipulate restrictions on a further exercise of the power under those provisions. It can be accepted that these assertions may be of relevance if, and when, any such power was in fact exercised. However, as the proposed cross-claim is currently framed, this is not just a matter said to affect a later exercise of power under either s 21(1) or s 83B. Prayer 4 of the claim for relief seeks declaratory relief in respect of this aspect of the conduct in its own right. As was the case with paragraphs 10 and 11 I accept the Minister's argument that, in light of the subsequent decision made in 2016, and the amendments to the Education Act that came into force on 28 October 2014, that so much of paragraph 12 as amounts to a claim in its own right lacks utility and leave should not be granted to plead it (and the equivalent parts of the existing cross-claim will need to be struck out). The only possible utility of this part of the pleading would be as material which might be said to affect some later exercise of power. If necessary, to achieve that it can be particularised as a basis for challenge to such an exercise.

Paragraphs 12A to 14

1. Paragraph 12A pleads that on or about 18 March 2014, the Minister reinstated the School's funding as from 1 January 2014.
2. Paragraph 13 pleads that on 16 May 2014, 13 August 2015 and 11 September 2015, the School requested that the Minister "reinstate" funding under s 21 and/or s 83B in respect of the period 1 August 2012 to 31 December 2013. Paragraph 13A pleads that by letter dated 3 June 2016, the Minister's delegate advised the School that she was satisfied that the School operated for a profit in that period and thus the application for reinstatement of funding was declined. Paragraph 14 pleads that that decision was unlawful and ultra vires. Extensive particulars of that contention are provided.
3. The only part of this portion of the pleading that is objected to by the Minister is particular (a) to paragraph 14, which itself cross-refers to the particulars to paragraphs 6, 9, 11 and 12. It was common ground that ultimately this aspect of the particulars was meant to be a reference to so much of those earlier particulars that contended that the validity of the refusal depended upon the existence, as a matter of objective fact, of the circumstance that the School operated for a profit, and that was not so. Thus, this particular is premised on it being found that operating for profit during a particular period is a fact upon which the validity of the Minister's refusal depends as opposed to the Minister forming an opinion as to whether the School operated for a profit.
4. Counsel for the Minister, Ms Davidson, contended that the former construction is so clearly untenable that leave should not be granted to plead that as a basis for impugning the decision of 3 June 2016, as is sought to be pleaded in proposed paragraph 13A of the proposed cross-claim.
5. Although not expressly pleaded, it seemed to be common ground that the Minister's refusal as pleaded in paragraph 13A involved an exercise of the power conferred by s 83C(1). However, as the period in question pre-dated the Amending Act, the determination of whether the School operated for a profit in that period is governed by clause 30 of Part 14 of Schedule 3 set out above at [17]). Clause 30 requires that the determination be undertaken "in accordance with [former] s 21A". Ms Davidson contended that this only picked up the methodology for determining whether a school operated for a profit as found in s 21A(2) and (3), but otherwise contemplated that the relevant determination was one undertaken by the Minister and not by the Court de novo.
6. Mr Cheshire SC submitted that the phrase "in accordance with s 21A" picked up all aspects of the former provision which included, so the argument went, the proposition that whether the School operated for a profit is an objective fact to be determined by the Court.
7. In her oral submissions, Ms Davidson referred to a number of criteria which are commonly considered when construing a statute in order to determine whether a particular matter is a jurisdictional fact or whether the opinion of the Minister or the like about the existence of that matter is the relevant jurisdictional fact. These criteria include the subject-matter of the inquiry and the sheer "inconvenience" of adopting one construction compared with another (see Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 46 NSWLR 55 at [72] per Spigelman CJ).
8. It is to be remembered that this issue is not being decided on either a separate question or a demurrer basis. Although I am sceptical of Mr Cheshire SC's argument, I am not persuaded that it is so untenable that leave should be refused to the School to plead it. As noted, s 21A does not expressly refer to the Minister forming an opinion or belief on any matter. Clause 30 of Part 14 in Schedule 3 of the Education Act as in force after 28 October 2014 refers to the making of a determination "in accordance with [former] s 21A" and does not expressly limit itself to former ss 21A(2) and (3). While it seems unlikely that Parliament intended that the Court would determine whether a school operated for profit in the period prior to the amendments coming into force, that is not sufficiently clear to justify refusing leave. The School will be given leave to plead particular (a) to paragraph 14 to the proposed cross-claim.

Paragraphs 15 and 16

1. Paragraph 15 repeats paragraph 9 of the Defence. Paragraph 16 contends that the for profit declaration deemed to have effect by clause 33(1) of Part 14 of Schedule 3 is "unlawful and ultra vires". The particulars to this paragraph repeat the particulars to paragraphs 6, 7 and 12. Those particulars contain various complaints about the earlier decisions to which I have referred, including the complaint that those decisions were ultra vires because, as a matter of fact, during the relevant period the School was not operating for a profit.
2. The position of the Minister in relation to this aspect of the proposed cross-claim was unclear. However, as I stated, in the end all aspects of the proposed cross-claim which were said to be the subject of an application for strike out as some form of consequential relief were open for debate. As framed, paragraph 16 of the proposed cross-claim is a legal nonsense. The profit declaration was brought into force by an Act of Parliament. Absent constitutional challenge there is no other basis for asserting that it is "unlawful and ultra vires". There are no jurisdictional facts that Parliament must be satisfied of before it passes a law.
3. Leave to plead paragraph 16 will be refused and, if necessary, the equivalent paragraph in the existing cross-claim will be struck out.

Paragraphs 17 to 18

1. Paragraph 17 of the proposed cross-claim pleads that on 15 June 2015 the School requested the Minister revoke the deemed declaration pursuant to subclause 33(2) of Part 14 of Schedule 3 and do so under s 83D of the Act. It also pleads that the Minister notified a refusal to do so by an email dated 6 October 2015.
2. Paragraph 18 pleads that the refusal to revoke the declaration was "unlawful and ultra vires." Various particulars are provided. The only challenge to this portion of the pleading is to particular (a) to paragraph 18, which asserts that the refusal to revoke the declaration was ultra vires because as a matter of objective fact the School did not operate for profit during the period 1 January 2010 to 31 July 2012. The State's objection to this paragraph raises the same issue as that addressed at [40] to [44] and the answer is the same. Further, an additional reason for permitting this aspect of the pleading to go forward is that the question of fact raised by this part of the pleading is no different to that which is raised by paragraph 7 of the Amended Statement of Claim.

Prayers for Relief

1. It follows from the above conclusions that a number of parts of the proposed cross-claim will not be permitted but others will be, and, if necessary, some parts of the existing cross-claim will be struck out. Subject to one matter, I will leave it to the parties to determine what aspects of the prayers for relief in the proposed cross-claim survive as a consequence of the above and which do not.
2. The one exception is prayer 7 of the claim for relief which seeks an order in the following terms: "… that the Minister for Education reinstate the funding pursuant to section 21 and/or section 83B of the Education Act 1990 of Malek Fahd Islamic School as from 1 January 2010 (and on each date thereafter) to 1 January 2014."
3. Ms Davidson contended that this prayer for relief is untenable. She contends that, given that both of ss 21A and 83C confer a discretion on the Minister to provide funding, then there is no power in this Court to order that funding be provided.
4. Although the circumstances in which the Court will compel the exercise of such a power are rare, there is authority for the proposition that a Court exercising judicial review has the power to order a duty or function to be exercised in a particular way, at least in circumstances when no residuary judgment or evaluation remains to be performed by the decision-maker (see Comptroller‑General of Customs v ACI PET Operations Pty Ltd (1994) 49 FCR 56 at 81; Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 at 536-7).
5. In this case, the possibility cannot be excluded that the School will be so successful in vindicating its position that it will persuade the Court that there is no residuary judgment to be exercised by the Minister before funding can be provided. Accordingly, I will allow the School to include proposed prayer 7 of the relief claimed in the cross-claim that will be filed.

Other Matters

1. Given the manner in which this application unfolded, the only sensible course is to direct the School to prepare a further draft of a proposed cross-claim that reflects the above and order the parties to confer as to the orders necessary to dispose of the two Notices of Motion referred to in [1] and [2]. Otherwise I will require the parties to attend a directions hearing to indicate whether the form of the proposed cross-claim has been agreed upon as well as the orders necessary to dispose of their respective Notices of Motion.
2. One consequence of this judgment, and the manner in which the parties have pitched their respective cases, is that the pleadings raise a factual issue for the Court as to whether the School operated for a profit according to the relevant definition in the Education Act during the two periods noted in [4]. It may be that a determination of those factual issues will be time consuming and expensive. Depending upon the proper construction of the Education Act and the issues, they may ultimately prove to be irrelevant. While it is a matter for the parties, they should consider whether it is appropriate to approach the Court to have the Court first determine all issues in the proceedings other than whether as a matter of objective fact the School operated for profit during the two periods referred to in [4].
3. In light of each party's respective successes and failures, I am inclined to the view that each party should pay their own costs of the application. Nevertheless, the parties will have the opportunity to briefly put any position to the contrary if they so choose.
4. Accordingly, the Court orders that: 1. On or before 14 November 2016, the cross-claimant serve a further draft cross-claim on the cross-defendants. 2. The parties confer in relation to the orders necessary to dispose of the cross-claimant's Notice of Motion filed 29 September 2016 and the cross-defendant's Notice of Motion filed 11 October 2016. 3. The proceedings stand over for directions at 9:30am on 28 November 2016 before Beech-Jones J.

Endnotes

1. Being the document attached to the submissions of its Senior Counsel dated 17 October 2016 which has been marked MFI 1 and placed with the papers.
2. Wrongly brought in the name of the State.
3. Submissions dated 17 October 2016 at paragraph 10.
4. Since renumbered 83B of the Act.
5. Amendments were made to s 21 with effect from 20 November 2013, but they are irrelevant to this matter. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 October 2016