WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd

INTERVENER Attorney General and Minister for Industrial Relations FILE NUMBER: IRC 3741 of 1999 CORAM: Wright J President; Walton J Vice-President; Hungerford J Occupational Health and Safety - Appeal - Notice of motion to set aside initiating summons - Commencement of prosecution proceedings for an offence - Construction of relevant statutory provisions - Whether validly commenced - Validating provisions - Exercise of discretion - Motion dismissed.

CATCHWORDS : Appeal - Notice of motion to set aside initiating summons at first instance - Whether motion barred by statutory privative provision - Motion failed in limine - Motion dismissed.

Practice and Procedure - Notice of motion filed in appeal proceedings to set aside initiating summons at first instance - Commencement of occupational health and safety prosecution - Whether original proceedings validly commenced - Purported withdrawal of motion - Necessity for leave - Obligation to determine jurisdictional impediment once raised to permit judgment on appeal - Withdrawal of motion declined - Construction of relevant statutory provisions - Validating provisions - Exercise of discretion - Motion dismissed. Industrial Relations Act 1996 s 132 s 165 s 167 s 168 s 170 s 179(1) s 196(1) LEGISLATION CITED : Industrial Relations Commission Rules 1996 r 139 r 140 r 141 r 142 r 218 r 219 r 220 Form 38 Occupational Health and Safety Act 1983 s 15(1) Supreme Court (Summary Jurisdiction) Act 1967 s 4 s 6(1) s 12 BHP Refractories Pty Ltd v AWU-FIME Amalgamated Union, New South Wales (1996) 69 IR 41 Regina v Marchando [2000] NSWCCA 8 CASES CITED : Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [2000] NSWIRComm 151 WorkCover Authority of New South Wales (Inspector Gilbert) v Energy Australia (1998) 85 IR 99 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (No 1) [2000] NSWIRComm 142 WorkCover Authority of New South Wales (Inspector Page) v RGM Building Services Pty Ltd [2000] NSWIRComm 27 HEARING DATES: 08/08/2000 DATE OF JUDGMENT: 08/31/2000

APPELLANT Mr S Crawshaw SC with Ms A F Backman of counsel Solicitor: Mr G McCann WorkCover Authority of New South Wales

RESPONDENT LEGAL REPRESENTATIVES: Mr B D Hodgkinson of counsel Solicitor: Mr J J Catanzariti Clayton Utz

INTERVENER Mr I Hill, solicitor I V Knight, Crown Solicitor

JUDGMENT:

• 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: WRIGHT J, President WALTON J, Vice- President HUNGERFORD J

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR HOPKINS) v PROFAB INDUSTRIES PTY LIMITED (No 2)

Appeal from a decision of Mr Justice Peterson given on 24 June 1999 in Matter No IRC 3000 of 1998. JUDGMENT OF THE COURT (re Notice of Motion) 1 These proceedings involve an appeal by the WorkCover Authority of New South Wales (Inspector William Hopkins) against a decision of Peterson J given on 24 June 1999 in which his Honour applied s 556A(1)(b) of the Crimes Act 1900 by dismissing without entering a conviction a prosecution by the appellant of the present respondent, Profab Industries Pty Limited, for a breach of s 15(1) of the Occupational Health and Safety Act 1983. Before judgment was delivered the respondent filed on 11 July 2000 a notice of motion in the appeal proceedings seeking the following orders: 1. An order setting aside the Summons filed in this matter.

2. An order for costs plus GST payable in connection with any costs. 2 The grounds and reasons stated in the notice of motion were as follows : 1. Section 165 of the Industrial Relations Act 1996 (NSW) requires that a Summons must be signed by a member of the Commission or the Industrial Registrar or as otherwise provided by the Rules of the Commission.

2. The Summons in this matter has not been signed by a member of the Commission or the Industrial Registrar.

3. The signature appearing on the Summons is not authorised for the purposes of the issuing of the Summons pursuant to the Rules of the Commission. 3 An affidavit sworn by the respondent's solicitor, Joseph John Catanzariti of Clayton Utz, was filed in support of the motion. Mr Catanzariti deposed therein: 1. I am the solicitor for the Applicant with respect to the Notice of Motion.

2. Section 165 of the Industrial Relations Act requires that a Summons must be signed by a member of the Commission or the Industrial Registrar or as otherwise provided by the Rules of the Commission.

From my analysis of the Summons in this matter, it appears that it has not been signed by a member of the Commission or the Industrial Registrar.

3. From my analysis of the Summons, it appears that the signature appearing on the Summons is not authorised for the purposes of the issuing of the Summons pursuant to the Rules of the Commission. 4 As the notice of motion was filed before judgment in the substantive appeal proceedings and in light of the orders sought, it was clear that the respondent intended the Full Bench to delay judgment on the appeal on the basis that the originating summons on which the prosecution was based, and to which the challenged decision of Peterson J related, was void or otherwise invalid and so beyond the Court's jurisdiction. Accordingly, the Industrial Registrar, at the direction of the Full Bench, forwarded a letter by facsimile on 4 August 2000 in the following terms to the respondent's solicitor, with copies thereof to the solicitors for the appellant and the intervener, the Minister for Industrial Relations : The Full Bench of the Industrial Relations Commission of New South Wales in Court Session will be delivering judgment in relation to this matter at 3.00 pm on Tuesday 8 August 2000.

It is noted that you have filed on behalf of your client, the respondent, a Notice of Motion seeking the following orders: 1. An order setting aside the Summons filed in this matter; and 2. An order for costs plus GST payable in connection with any costs. It is assumed that the orders you seek involve also an application that the Full Bench not deliver judgment in the appeal. Accordingly, your Notice of Motion has also been listed at 3.00 pm on Tuesday 8 August 2000, at which time the Full Bench will consider your applications.

The solicitors for the appellant and the intervener (the Minister for Industrial Relations who intervened pursuant to s 167 of the Industrial Relations Act 1996) will be provided with a copy of this letter by facsimile and advised that they may also make submissions at that time to your applications.

Please note, however, that the Full Bench has decided to limit the time for submissions for each party or intervener to 15 minutes. 5 However, in response to the Industrial Registrar's letter advising that the motion would be heard on 8 August 2000 at 3.00 pm when the judgment in the substantive appeal was to be delivered, the respondent's solicitor wrote to the Industrial Registrar on 7 August 2000 in the following terms : We refer to the facsimile received from the Industrial Registry dated 4 August 2000.

We have been instructed that our client wishes to withdraw the Notice of Motion and not press the legal point at all. The matter which was the subject of the Notice of Motion was raised on the basis that it appeared that the legal point would first be determined in other proceedings. It is now the case that it appears that the point would have been heard for the first time by the Full Bench with respect to our client's case. At this very late stage of the proceedings our client does not wish to incur further additional legal costs by pressing the Notice of Motion. Our client has already incurred significant legal costs associated with the appeal brought by WorkCover and does not wish to incur any further legal costs.

We apologise for any inconvenience caused. We are contacting the solicitors for the Appellant and the intervenor (the Minister for Industrial Relations who intervened pursuant to s 167 of the Industrial Relations Act 1996) to advise him of the same. 6 It will be apparent that the respondent's motion raised a question as to the validity and foundation of the prosecution proceedings heard by Peterson J in terms of an alleged defect in the initiating summons. So much was confirmed by counsel for the respondent in his submissions. The issue having been raised necessarily, it is clear to us, required resolution before judgment could be given on appeal because the appeal process must be dependent upon the validity of the first instance process. As was observed by Hungerford J in BHP Refractories Pty Ltd v AWU-FIME Amalgamated Union, New South Wales (1996) 69 IR 41 at 45, albeit in relation to demarcation proceedings but where it involved a fundamental aspect of the Commission's jurisdiction or power in making demarcation orders and in what way : … the issue having been raised requires, in my view, the Commission to attend to it as it involves a fundamental aspect of the Commission's exercise of jurisdiction or power in considering whether demarcation orders should be made and, if so, in what way having in mind the purposes for which the power is to be used. If that were not so then there would be a real risk of misdirection in the decision-making process. As was observed by Griffith CJ in Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Company Ltd (1911) 12 CLR 398 at 415 : "But the first duty of every judicial officer is to satisfy himself that he has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense." True it is that adoption of that approach, which was cited with approval by Latham CJ in R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 70, does not mean the Commission must in every case coming before it deal with its jurisdiction to do so, unless something appears on the face of the record to cause doubt or where a party makes a direct jurisdictional challenge: see Board of Fire Commissioners of New South Wales v Threlfo [1960] AR (NSW) 349 at 350 and Re Refinery Operatives (Shell Refining) Award (No 2) [1969] AR (NSW) 108 at 117. Here, however, a party has identified an important aspect as to the way in which the Commission should approach the exercise of its power to make a demarcation order in light of the enactment of the 1996 Act repealing the 1991 Act. Accordingly, in my opinion, it is necessary for the Commission to deal with the savings and transitional provisions in order to satisfy itself of the proper approach to the task of resolving the competing industrial interests of the AWU-FIME and the BTPU. 7 We agree with what his Honour said. It was for that reason, the respondent having raised the direct jurisdictional impediment and in the particular circumstances of these important proceedings, that we felt obliged to satisfy ourselves that indeed jurisdiction existed so as to properly enable us to give judgment on appeal. It is not enough, without more but as the respondent's solicitor sought to do, for the notice of motion to be withdrawn with an indication to "not press the legal point at all". And that is particularly so where, as the respondent's solicitor made clear in his letter of 7 August 2000, that the issue of the motion "was raised on the basis that it appeared that the legal point would first be determined in other proceedings. It is now the case that it appears that the point would have been heard for the first time by the Full Bench". The "other proceedings" were, as we were informed, prosecution proceedings at first instance before a single judge of the Court yet to be heard. All we need say is that the issue was raised before this Full Bench by the respondent as a jurisdictional bar and, as such for the reasons we have earlier given and regardless of other proceedings, it falls to be determined. Certainly, in our view, it is inappropriate for it to be left undetermined and to permit us to proceed to judgment on the appeal even though jurisdiction may be lacking. 8 It was with those considerations in mind, particularly where no step was taken to withdraw the motion until it was listed for hearing and the proposed withdrawal of the motion had been advised the day before the scheduled hearing of it, that we caused the Industrial Registrar to orally inform the parties on 7 August 2000 that the motion remained listed for hearing on 8 August 2000 and they should be in a position to argue it, but that the Full Bench would consider any other application then made including withdrawal of the motion. 9 We interpose to comment, which we think is important in a procedural sense so that all parties to proceedings may be able to prepare in a timely way, on the requirements of the Industrial Relations Commission Rules 1996 as to withdrawal of process, the terms of leave to do so and the mode of withdrawal by notice, including by service on each other party: see rr 139, 140, 141 and 142 and Form 38 of the Rules. Those obligations were required but not met in this case by the respondent's solicitor's letter of 7 August 2000. They could not be waived, absent leave of the Court. 10 We immediately make the comment that the utilisation of a process by way of notice of motion in appeal proceedings, particularly where the hearing has concluded and judgment reserved, to challenge the first instance proceedings, as the present motion did, is either arguably not open or, at the least, is inappropriate. Such a challenge by a respondent should, in our view, be by way of a cross-appeal (even if an extension of time to appeal be necessary); if the challenge be by an appellant then it should be by way of an amended notice of appeal. So much, we think, arises from s 179(1) of the Industrial Relations Act which provides: 179 Finality of decisions

(1) Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted):

(b) may not be appealed against, reviewed, quashed or called in question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise).

The present notice of motion by the respondent effectively called in question the decision of Peterson J on jurisdictional grounds, even though such grounds were not argued before his Honour. The issue should have been raised in a cross-appeal accompanied by an application to extend time to appeal. That that was not done results, in our view, in the motion failing in limine as being misconceived by reason of s 179(1). 11 At the commencement of the hearing of the motion on 8 August 2000 and prior to our delivery of judgment on the appeal, counsel for the respondent, Mr B D Hodgkinson sought, as he said, "consistent with the advice provided to the Commission and the parties, simply to withdraw the notice of motion. We do not seek to pursue the point in any way. … we make no submissions that there is any jurisdictional impediment to this Commission proceeding with the determination of the matters raised on the appeal. … We withdraw them completely. We do not seek to agitate them at all and we understand that this case is next listed - and by 'next listed' I mean immediately, for the purposes of issuing a judgment, if the Commission sees fit". 12 After taking a short time to consider what had been put by counsel for the respondent in the circumstances as they had developed, the following announcement was made by the Full Bench: We have considered the application made by the respondent to withdraw its notice of motion. We have also had regard to the principles enunciated by the Honourable Mr Justice Hungerford in BHP Refractories Pty Limited v AWU-FIME Amalgamated Union, New South Wales & Ors (1996) 69 IR 41 at 45.

In the particular circumstances of this matter, we do not consider it available to us to proceed to deliver judgment until we have heard argument on the issues raised by the notice of motion. We therefore decline the application to withdraw it. We call on counsel for the respondent to put what submissions, if any, it desires to put in relation to the matters raised in the motion.

After he has concluded those submissions, bearing in mind we have indicated to the parties a limit of time, we will hear from Mr Crawshaw in relation to this motion.

Counsel for the respondent then announced to the Court that he did not intend to put any further submissions. Senior counsel for the appellant, however, did make detailed but succinct submissions on the issues raised by the motion. At the conclusion of those submissions the Full Bench adjourned and made the following statement and then delivered the judgment in the appeal ( WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (No 1) [2000]NSWIRComm 142) : We have considered the submissions as to the jurisdictional issues raised as to the Commission's power to proceed in this matter, including the power to deliver judgment in the appeal that has been heard by the Full Bench. We have concluded that these matters do not preclude the conclusion of the appeal proceedings, nor do they affect the validity of the proceedings at first instance before his Honour Justice Peterson.

We were minded to give extempore reasons for this decision but have come to the conclusion that the issues are important in the administration of justice and the Court's processes and we will, therefore, as soon as practicable, deliver reasons for decision in this matter.

We emphasise that in making those observations we should not be taken as accepting that the notice of motion in this matter was properly brought or that the issues flowing from it are issues which have any validity or merit.

We therefore make the following orders in relation to the motion:

2. Costs reserved. 13 These are the reasons for our decision to dismiss the motion. The background to the proceedings at first instance was as follows. On 15 July 1996, a fatal accident occurred at the respondent's factory premises at Chipping Norton in the State of New South Wales. Subsequently, on 5 June 1998, according to material in the appeal book filed in the appeal proceedings, three documents were filed in the Industrial Registry. The first document was an "Application for a Summons Prosecution" signed by Inspector William Hopkins, and countersigned by a solicitor, setting out the allegation that the respondent had breached s 15(1) of the Occupational Health and Safety Act. Particulars of the alleged breach were given and the document included an application for the issue of a summons requiring the respondent to appear before the Court. Reference was also made to an attached affidavit sworn on 4 June 1998 verifying the allegations made in the application. 14 The affidavit was sworn before the solicitor who had countersigned the application for the summons. It set out in nineteen numbered paragraphs details of the allegations made and the breach alleged and also included reference to the deponent applying for the issue of a summons requiring the respondent to appear before the Court in answer to the charge. The third document was entitled "Summons Prosecution". It was addressed to the defendant and contained particulars as to the allegations and charge against the respondent. It referred to the affidavit of Inspector Hopkins dated 4 June 1998 and appeared to have had inserted upon it, after filing, a return date before the Commission in Court Session and bore a signature, in conjunction with the Commission's seal, of an officer within the Industrial Registry. That signature was prefaced by the word "For" and underneath it were the words "Industrial Registrar". 15 We set out hereunder the provisions which are relevant to the respondent's submissions and also our decision in relation to the motion filed. Those provisions are, respectively, ss 165, 168, 170 and 196(1) of the Industrial Relations Act 1996, ss 4, 6(1) and 12 of the Supreme Court (Summary Jurisdiction) Act 1967 and rr 218, 219 and 220 of the Industrial Relations Commission Rules 1996:

Industrial Relations Act - 165 Issue of summons (1) A summons for the purposes of this Act is to be issued by the Industrial Registrar. (2) Any such summons must be signed by a member of the Commission or the Industrial Registrar or as otherwise provided by the rules of the Commission. (3) Any such summons may require a person to do any one or more of the following:

(b) attend and give evidence, (c) attend and produce documents or other things.

(4) A person who, without reasonable excuse, fails to comply with the requirements of a summons is guilty of an offence.

Maximum penalty: 100 penalty units. (5) A person does not comply with the requirements of a summons to confer if the person leaves the conference without the permission of the person presiding at the conference.

(6) A summons may be served within or outside the State. 168 Criminal procedure (1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission. (2) The Supreme Court (Summary Jurisdiction) Act 1967 applies to any such proceedings in the same way as it applies to proceedings that may be taken before the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Supreme Court (Summary Jurisdiction) Act 1967 : (a) to the Supreme Court (except in section 15) - is taken to be a reference to the Commission in Court Session, and (b) to rules - is taken to be a reference to rules of the Commission, and (c) to the Prothonotary - is taken to be a reference to the Industrial Registrar.

(4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence. 170 Amendments and irregularities (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.

(a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs).

(3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings.

(4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. 196 Appeals from and references by members of Commission in criminal proceedings (1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission.

Orders for appearance or apprehension of defendants

4. (1) Upon an application being made by any person (in this Act referred to as the " prosecutor ") in accordance with the rules, a Judge shall make an order: (a) ordering any person alleged in the application to have committed an offence punishable in the Court in its summary jurisdiction to appear at a time and place specified in the order to answer to the offence charged in the order; or (b) ordering the apprehension of any such person for the purpose of the person's being brought before a Judge to answer to the offence charged in the order. (2) An order under subsection (1) may be made ex parte. (3) An order in respect of an offence alleged to have been committed by a person may be made under paragraph (b) of subsection (1) whether or not an order in respect of that offence has been made under paragraph (a) of that subsection. (4) An order under paragraph (b) of subsection (1): (a) shall be addressed to all members of the police force; (b) may be addressed to any other person specified in the order; and (c) may be executed by any member of the police force or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the Court.

Defects and variances in process 6. (1) No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 4 or 5 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order. Where both parties appear Judge to hear and determine the case 12. If, upon the day and at the time and place appointed for hearing or to which the hearing or further hearing has been adjourned, both parties appear in person or by their respective counsel or attorneys the Judge shall proceed to hear the case.

Industrial Relations Commission Rules - Application

218. (1) This Part applies only to proceedings before the Commission in Court Session. (2) In this Part, proceedings for an offence include proceedings to recover a civil penalty.

219. (1) Proceedings before the Commission for an offence (other than contempt) must, unless otherwise provided, be commenced by application for summons, must be accompanied by an affidavit verifying the allegations made in the application and must state: (a) the name and address of the person by whom the proceedings are brought (the prosecutor); and (b) the capacity in which the prosecutor is taking the proceedings; and (c) the name and address of the person against whom the proceedings are brought (the defendant); and (d) the Act and the section under which the application is made; and (e) the nature of the breach or offence which is alleged; and (f) particulars of any payment which it is alleged the defendant has failed to make, and whether an application is to be made pursuant to section 358 for an order in respect of those payments. (2) The application must also be accompanied by a summons, addressed to the defendant, for signature by or on behalf of the Registrar.

220. Where an application for a summons has been filed and it appears to the Registrar to be properly filed, the Registrar must issue the summons, commanding the defendant to appear before the Commission on the day and at the place specified. 16 The basis of the respondent's motion was s 165 of the Industrial Relations Act. The difficulty with that basis is that s 165 does not deal at all with process the nature of which is at issue in these proceedings. Although a superficial consideration of sub-s (1) of s 165, in isolation from the balance of the section, might appear to indicate that the section deals with all summonses relevant to proceedings under the statute, when the sub-section is considered in the context of the section as a whole it is clear that the only kinds of summonses to which the section applies are those summonses specified in sub-s (3). That is, summonses to attend and confer (for example under s 132); summonses to attend and give evidence; and summonses to attend and produce documents etc. In earlier times, a summons in the second and third categories would have been referred to respectively as a subpoena ad testificandum and a subpoena duces tecum. 17 Our conclusion as to the construction of s 165 of the Industrial Relations Act is one that is clear on the face of the provision and it is difficult to apprehend how any alternative construction is seriously available. To the extent that the respondent's motion relied upon s 165 of the Industrial Relations Act it must be dismissed. 18 However, the motion does perhaps lead to a different but similar point to the one directly raised by the motion. This point derives from the terms of rr 219 and 220 of the Industrial Relations Commission Rules on the basis that for proceedings to be properly and validly commenced under those provisions (assuming they are the relevant provisions and s 165 is not relevant) the summons must be issued by the Industrial Registrar or expressly on his behalf. If such summons be not so issued, then the proceedings would not have been properly or validly commenced and would consequently be a nullity. 19 As it happened, the significant issues raised in those respects were dealt with in the argument in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [2000]NSWIRComm 151, a case heard earlier in the day the present motion was heard; a decision was delivered by the Full Bench at the end of that argument and reasons were published shortly thereafter on 18 August 2000. It is sufficient for present purposes for us to adopt with agreement the relevant conclusions reached in Ridge Consolidated as set out therein at paras 25 to 40. 20 Lastly, although we have explored and determined the legal issues raised by the respondent in its motion, we are of the view that if it had been merely a question of the exercise of discretion we would have rejected the motion on that basis as well. We would do so on the basis that there was a range of matters preliminary to the issues raised by the respondent which required consideration and determination as a condition precedent to its motion being successful and that, notwithstanding this situation, not one of those matters was raised or explored by the respondent. Indeed, it appears that no consideration was given to them on behalf of the respondent. 21 Those matters included the fact that the respondent had pleaded guilty before the trial judge; the fact that no application was made to withdraw that plea of guilty or to seek leave so to do (see, for example, WorkCover Authority of New South Wales (Inspector Page) v RGM Building Services Pty Limited [2000] NSWIRComm 27, Regina v Marchando [2000] NSWCCA 8 and WorkCover Authority of New South Wales (Inspector Gilbert) v Energy Australia (1998) 85 IR 99); there was no cross-appeal filed in relation to the judgment of Peterson J nor was any application made to file such process; and, lastly, no consideration appears to have been given to the practical or legal effect on the situation of the respondent itself should an application be made to withdraw the plea of guilty and the consequent impact it would have in relation to any eventual sentencing of the respondent.

Orders 22 We therefore confirm, for the above reasons, the orders made by us on 8 August 2000 in disposing of this motion, namely : 1. Notice of motion dismissed.

2. Costs reserved. 23 We further order : 3. Any application as to the costs of the motion shall be filed and served by Friday, 8 September 2000.

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.