Gamage v Riashi

1. [1]

   LEEMING JA: I agree with Basten AJA.

2. [2]

   BASTEN AJA: In October 2011, the respondent, an officer with the Independent Commission Against Corruption (Commission or ICAC), issued thirteen court attendance notices (CANs) alleging offences committed by the applicant. One was later withdrawn; of the remaining twelve charges, nine involved offences under the Crimes Act 1900 (NSW) and related to conduct which had been the subject of an investigation by the Commission. The other three charges involved offences under the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act).

3. [3]

   The sole issue raised on the application for leave to appeal to this Court is whether an officer of the Commission had power to lay information in respect of the offences. As explained below, there should be a grant of leave to appeal and the appeal allowed in part.

Procedural history

1. [4]

   The charges first came before the Local Court on 26 June 2023. The period of almost 12 years between the issue of the CANs and the first hearing was accounted for, in large part, by the absence of the applicant from the country. His first appearance before the Local Court was in December 2020 following his arrest and was an application for bail. At a hearing in the Local Court on 26 June 2023 the applicant sought to vacate the dates fixed for the hearing of the charges. That application involved numerous grounds, one of which was a challenge to the jurisdiction of the Local Court, based upon the asserted lack of power of the Commission to commence criminal proceedings. [1] It appears that the applicant had attempted to raise the issue as a preliminary matter in earlier proceedings in the Supreme Court and had been advised by Rothman J that the matter should be dealt with first in the Local Court. [2]

2. [5]

   On 26 June 2023 Magistrate Thomas dismissed the relevant challenge in the following terms: [3]

3. [6]

   The Magistrate also dismissed other grounds of challenge to the proceedings, an application for the stay, and an application to issue subpoenas. The applicant challenged the orders of the Magistrate in the Common Law Division, by commencing an appeal pursuant to s 53 of the Crimes (Appeal and Review) Act 2001 (NSW) and by seeking judicial review in the supervisory jurisdiction of the Court, pursuant to s 69 of the Supreme Court Act 1970 (NSW). On 8 August 2024, Rothman J granted the applicant leave to appeal on limited grounds, but dismissed both the appeal and the summons seeking judicial review. [4]

4. [7]

   On 6 November 2024 the applicant filed a summons in this Court seeking leave to appeal. The only ground identified in a draft notice of appeal was that the primary judge erred in deciding that the respondent, an officer with the Commission, had the power to prosecute the applicant. That is the sole issue before this Court for a concurrent hearing of the application for leave and, if granted, the appeal.

The charges

1. [8]

   As has been noted, there were twelve CANs, which fall into two categories. The first category involves offences which, it is common ground, arose from the investigation into corrupt conduct carried out by the Commission in 2010. The Commission made findings of corrupt conduct against the applicant and stated an opinion that the advice of the Director of Public Prosecutions (DPP) be sought with respect to the prosecution of the applicant for various offences. The offences are: (i) an offence of corruptly offering a benefit in relation to a pending recruitment at Woollahra Municipal Council (sequence 1); (ii) seven offences of making a false statement with intent to obtain an advantage, under s 178BB of the Crimes Act, each statement being made in seeking employment with a local government authority (sequences 6 – 12), and (iii) an offence of making a false statement with intent to obtain an advantage, charged under s 192G of the Crimes Act (sequence 13). The last offence was relevantly identical to the earlier offences, but involved conduct which occurred after the repeal of s 178BB.

2. [9]

   The second category of offences involved two charges of giving false evidence, laid under s 87(1) of the ICAC Act (sequences 2 and 3), and one of making a false statement to an officer, laid under s 80(c) of the ICAC Act.

3. [10]

   For reasons set out below, the applicant’s submissions that an officer of the Commission has no power to commence proceedings for offences arising out of an investigation into corrupt conduct should be upheld. However, an officer does have power to lay an information in relation to any consequential offending under the ICAC Act. Whilst there is an obvious connection between the Commission’s findings in the course of its investigation and the charges of making false statements to it or its officers, the latter charges are not dependent upon convictions under the Crimes Act. No doubt, as a practical matter, the charges would be listed together.

4. [11]

   The issues raised by the applicant are of general public importance. Although, as will appear, there has been at least one opportunity for the issues to be considered in the past, they were not expressly addressed and remain unresolved. There should be a grant of leave to appeal.

Powers and functions of officer of Commission

1. [12]

   The respondent claimed his authority to institute proceedings for any offence derived from s 14 of the Criminal Procedure Act 1986 (NSW), which provides:

2. [13]

   The mechanism for commencing summary proceedings for an offence is found in the following provisions of the Criminal Procedure Act in Ch 4, Pt 2, Div 1, under the heading of Div 1, “Commencement of proceedings”:

3. [14]

   None of the CANs was signed by the Registrar: all were signed by the respondent. Accordingly, the respondent’s power relied upon s 173. Not being a police officer, he contended that he fell within the category of “public officer”. That term is defined in s 3(1): [5]

4. [15]

   The respondent relied upon his position as an officer or employee of a body declared by the regulations to be a public body for the purposes of the definition, as provided in par (f). He noted that the Criminal Procedure Regulation 2000 (NSW) had been amended in 2004, some years before the issue of the CANs, to include the Commission as a public body for the purposes of par (f). Not only did the Regulation provide the relevant authority, but further, in the respondent’s contention, it recognised that officers of the Commission could indeed commence criminal prosecutions. At the time the CANs were issued, cl 101(1)(a) of the Criminal Procedure Regulation 2010 (NSW) declared the Commission to be a public body for the purposes of s 3(1)(f). [6]

5. [16]

   The appellant did not take issue with this aspect of the respondent’s case; rather he submitted that the respondent could only fall within the definition in s 3(1) of the Criminal Procedure Act if he were “acting in an official capacity”. He could not satisfy that requirement unless the institution of prosecutions for criminal offences fell with the functions and powers of the Commission itself.

6. [17]

   The respondent contended that, as he was at least purporting to exercise a function as a public officer, he was then “presumed to be acting in an official capacity”, pursuant to s 3(3) of the Criminal Procedure Act, which states:

7. [18]

   The initial qualification to the presumption (“[i]n the absence of evidence to the contrary”) indicates that the presumption is one of fact, rather than law. Thus, the existence of an appropriate delegation, if delegation were required, is to be presumed. The presumption does not operate in circumstances where the “official capacity” does not extend to the institution of criminal proceedings because the agency does not have such a function. The powers of an individual officer cannot rise higher than the powers of the agency for which he or she purports to act.

8. [19]

   The question, therefore, remains as to the scope of the functions and powers of the Commission. While it is true that the naming of the Commission in the Regulation indicates a belief on the part of the Attorney General of the day, who promoted the amendment to the Regulation in 2004, that the Commission could prosecute for offences, that does not avoid the obligation of this Court to consider whether, as a matter of statutory construction, that belief was correct.

Functions and powers of the Commission

1. [20]

   The relevant provisions of the ICAC Act do not contain any express function or power involving prosecution of criminal offences. The question is therefore whether such a function or power can be inferred from the statutory context. Before noting the key provisions, of which there are a number, two preliminary observations should be made. The first is that the boundaries of the Commission’s functions have not proved easy to fix with precision. Cases determining some aspect of the boundaries have on occasion been followed by amendments. Elements of uncertainty remain.

2. [21]

   Secondly, the fact that a finding of corrupt conduct is often dependent upon the Commission being satisfied as to a relevant criminal offence, in combination with the need to maintain the boundary between opinions formed by the Commission and the establishment of a criminal offence by the only arm of government capable of making such a finding, namely a court with criminal jurisdiction, means that the boundary has been hard to settle. It is convenient to start with some explication of this point. [7]

3. [22]

   Section 8 of the ICAC Act contains a lengthy definition of “corrupt conduct”. At the risk of oversimplification, s 8(1) provides as part of the definition of corrupt conduct any conduct that adversely affects “the honest or impartial” exercise of official functions. Section 8(2) omits the words “honest or impartial” but includes some 25 categories of misconduct, all, or almost all, of which are criminal offences. Section 9(1) then qualifies the operation of s 8 to exclude conduct from the definition of corrupt conduct “unless it could constitute or involve … a criminal offence”, or a disciplinary offence, or reasonable grounds for dismissing a public official. Relevantly, the conduct of the applicant could not be corrupt conduct unless it “could constitute or involve” a criminal offence. Section 9 further provides:

4. [23]

   Section 74 provides that in some circumstances, the Commission “shall” prepare a report; in other cases it “may” prepare a report. The obligatory “shall” is used in relation to matters where the Commission has conducted a public enquiry: s 74(2). The permitted content of such reports is identified in s 74A, as qualified in s 74B, in the following terms:

5. [24]

   Section 9 having required that to be corrupt, conduct must be such as “could constitute or involve” a criminal offence, a matter as to which the Commission must be satisfied, these provisions attempt to limit the possibility that members of the public will conclude from a finding of corrupt conduct that the person is guilty of a criminal offence, or has even been convicted of an offence. To give such an impression risks damaging the affected person’s reputation and may put in jeopardy a fair trial if a jury trial were to take place.

6. [25]

   The relevance of this material for the present purposes is not to resolve issues as to the balancing exercise which can or should be undertaken in preparing a report, but rather to indicate a degree of inconsistency between the limitation imposed on the Commission’s reporting function and the precondition for the commencement of criminal proceedings, namely an opinion that, if a jury were to accept the admissible evidence against the affected person, it would be reasonably open to them to convict.

7. [26]

   The scope of the identified powers and functions may be guided by the overarching principles identified in Pt 4, which commences with Div 1 “Functions generally”. Although detailed and lengthy, it is necessary to set out the relevant provisions:

8. [27]

   The expression of these functions is consistent with the identification of the principal objects of the Act, which are found in s 2A:

9. [28]

   There is, self-evidently, no express conferral of a function or power to institute criminal proceedings. In short, both the legislative objects and the principal functions of the Commission are to investigate, communicate to appropriate authorities about, and to take steps to limit opportunities for, corrupt conduct. The terms of ss 13(4) and 74B, precluding the Commission including in a report a finding of guilt or a statement “recommending prosecution”, or even forming an opinion as to such matters, are inconsistent with the Commission having an implied power to institute a prosecution itself.

10. [29]

    That point is emphasised by the fact that the prohibition on recommending prosecution appears not only in the section dealing with “principal functions”, but also in Pt 8 dealing with reports prepared following an investigation. Section 74B(1)(b) states that the Commission is “not authorised” to include a recommendation that a specified person should be prosecuted. Further, the requirement that the report “must include” an opinion as to whether or not “consideration should be given to … obtaining the advice of the [DPP] with respect to the prosecution of the person for a specified criminal offence”, reveals an express expectation that the decision to prosecute or not prosecute will be made by the DPP and not the Commission. Of course, it remains possible that the Commission, having received advice that a prosecution is appropriate, could then initiate a prosecution. Nevertheless, these provisions, read as a whole, are inconsistent with the implication of a power to prosecute, at least in relation to conduct which has been a subject of an investigation to determine whether it constitutes “corrupt conduct”.

11. [30]

    It remains to note the terms of s 19:

12. [31]

    This is not a regulation-making power, but a provision in the statute setting out the powers of the body. Nevertheless, the principle stated in relation to the proper construction of a regulation-making power is apposite. In Shanahan v Scott [8] the joint reasons, after citing two earlier cases, stated:

13. [32]

    In some circumstances, the inclusion of such a provision in a statute may expand the means the legislature has provided, but it is unlikely to affect the purposes of the statute. Indeed, it will not provide further means for carrying the purposes into effect, where the means have been identified in detail and are subject to carefully drafted constraints. The expression of the powers in s 19, as “necessary” or “reasonably incidental to” the exercise of the stated functions and specific powers conferred on the Commission, is consistent with the principle articulated in Shanahan v Scott. Instituting a criminal prosecution is neither necessary, nor reasonably incidental to, the functions of investigation and report. Section 19 cannot be read in a manner which undermines the express constraints on the opinions which may be expressed in a report, discussed above. The power to prosecute for corrupt conduct cannot be found within the language or purpose of s 19, read harmoniously with the rest of the ICAC Act.

14. [33]

    The conclusion that the Commission does not have power to prosecute for the corrupt conduct it has investigated is consistent with the following statement of Premier Greiner, in his second reading speech for the 1988 ICAC bill: [9]

15. [34]

    The legislative intention could not have been more clearly stated: it was consistent with the text of the legislation set out above.

16. [35]

    In June 1990, the High Court handed down judgment in Balog v Independent Commission against Corruption. [11] Mr Balog was the managing director of a land development company. The Commission investigated whether he was involved in corrupt conduct in relation to a development application before Waverley Municipal Council. At that time, s 74(5) and (6) of the ICAC Act provided:

17. [36]

    Section 74, as noted above, is no longer in those terms. The declaration sought in Balog was that the Commission “is not entitled in any report… to make any finding or state any conclusion that the plaintiff … was guilty of a criminal offence or of any conduct which may constitute a criminal offence, other than making a statement within s 74(5) of the Act.” The Court observed: [12]

18. [37]

    While Mr Balog obtained a declaration in terms very close to those which he had sought, the result was thought to be unsatisfactory, and the Government introduced an amending bill in November 1990 to clarify the situation. The Attorney General, presenting the second reading speech on behalf of the Premier, introduced amendments which were intended to avoid a restrictive reading of the High Court judgment. He stated that it is “vital that the commission have clear and broad powers to report findings to ensure it remains an effective anticorruption body”, but it was “also essential that the commission will be able to reach definitive conclusions as to whether allegations of corruption have been made out so that speculative allegations without any substance are not left hanging.” [13] The Attorney General continued:

19. [38]

    This was a strong statement denying the Commission’s role in conducting prosecutions for criminal offences. It would be remarkable if, in using the word “conduct”, the Attorney had been deliberately evading the question as to whether the Commission’s functions extended to initiating proceedings. The Government’s intentions should not be so understood.

20. [39]

    There are, it may be accepted, statements by later Attorneys in the course of parliamentary debates as to “the practice” of the Commission to commence criminal prosecutions arising from its investigation, but that the DPP then takes over the carriage of the prosecution. Such a statement was made in relation to a proposed amendment to the ICAC Act in 2005, seeking to insert a new s 116A, the effect of which would have been to require the Commission to obtain the approval of the DPP before commencing proceedings. [14] The extent and nature of the “practice” referred to by the Minister in 2005 is not known, but in the absence of any judicial determination as to whether or not the practice was valid, the mere existence of the practice, recognized by the Minister, cannot affect the proper construction of the legislation. Even had the amendment been passed, it would not have affected the construction of the pre-amendment statute, except possibly to resolve ambiguity. [15]

21. [40]

    However, as the applicant noted, the proposed new s 116A of the ICAC Act, was omitted as a result of an amendment made in a Legislative Council on 6 April 2005. Opposing the amendment, the Leader of the Opposition asserted that the amendment would see the Commission “moving away from its role as an investigative body to that of the prosecutorial body”. He further stated that, in the view of the Coalition, “it was not the intention of those who drafted the ICAC legislation, nor should it be the practice … to provide oversight of the state”. [16] He later reiterated his concern that “prosecutorial powers [were to be] given to the body with inquisitorial powers and the power to force people to answer questions”. [17] In April 2005, the majority of members of the Legislative Council did not believe that the Commission had or should have powers to initiate prosecutions. The proposed s 116A was not enacted.

Case law

1. [41]

   Only one decision in this Court has expressly addressed the question of the power of the Commission to commence proceedings with respect to the subject matter of its investigation. There is, however, a line of authority dealing with prosecutions for offences under the ICAC Act itself. Those decisions have upheld the power of an officer of the Commission to lay an information with respect to such an offence, identified above as category two of the CANs the subject of the present proceedings.

2. [42]

   In 2015 Garling J dealt with an application under s 69 of the Supreme Court Act to set aside a conviction for an offence under s 87 of the ICAC Act: Lazarus v NSW Director of Public Prosecution. [18] The applicant, Michelle Lazarus, challenged her convictions in the Local Court on seven counts of giving false or misleading evidence. Relevantly for present purposes, Ms Lazarus challenged the lawfulness of the conduct of the prosecution by an officer of the Commission. Garling J held:

3. [43]

   Ms Lazarus sought leave to appeal from that judgment. The relevant point raised on the application for leave to appeal was that the CANs had not been validly issued by the officer of the Commission. In Lazarus v Director of Public Prosecution NSW [19] the Court refused leave to appeal. The focus of the argument was upon the power conferred under s 14 of the Criminal Procedure Act and the exclusion, namely, where there is an express conferral of power on a limited specified class of persons. Garling J had dismissed the contention on the basis that the ICAC Act was entirely silent on the question. This Court stated:

4. [44]

   Importantly for present purposes, the Court distinguished a prosecution for a breach of the ICAC Act, from a prosecution arising from the subject matter of the investigation by the Commission. It will be necessary to return to that point shortly.

5. [45]

   A related issue was raised in a challenge to the constitutional validity of a legislative amendment to the powers of the Commission, [20] in Lazarus v Independent Commission Against Corruption. [21] The argument was described as “somewhat muted, being developed in written submissions in one sentence and only briefly in oral submissions.” [22] The submission appears not to have been couched in terms of an absence of power to prosecute per se, but instead as a consequence of a limitation upon the scope of the Commission’s investigative powers, upheld by a majority of the High Court and not, so it was said, cured by retrospective validating legislation thereafter enacted. Leeming JA disposed of the submission on the basis that it merely reflected the consequences of the arguments concerning the validity of the Validation Act:

6. [46]

   However, it may be accepted that the point of distinction was overlooked by this Court in a later judgment dealing with both Ms Michelle Lazarus and Ms Sandra Lazarus: Lazarus v Independent Commission Against Corruption. [23] Both categories of offences were raised, 58 charges being laid against Sandra Lazarus for frauds committed during the latter’s employment in two public hospitals in Sydney. Seven charges were laid against Michelle Lazarus for giving false or misleading evidence during the Commission’s inquiry into the conduct involving her sister. Court attendance notices were issued by an officer or employee of the Commission.

7. [47]

   The judgment on the relevant issue commenced:

8. [48]

   To the extent that Lazarus (2019) casts doubt on the reasoning set out above in relation to charges arising from the subject matter of an ICAC investigation, it should not be followed. The proper construction of the ICAC Act is not consistent with an implied power of the Commission to initiate prosecutions for offences identified in the course of an investigation into possible corrupt conduct.

Power to prosecute for breaches of the ICAC Act

1. [49]

   The remaining issue is whether the Commission has power to prosecute for breaches of its own legislation, that is, primarily, by hindering its officers or giving false evidence before it. That it has was accepted in earlier authorities, and a question arises on the applicant’s case as to whether those authorities were correctly decided.

2. [50]

   First, unlike offences under the Crimes Act, offences in relation to the operations of the Commission are set out in the ICAC Act, and steps for their prosecution provided in s 116 of that Act. Such offences are temporally and institutionally separate from the investigation of corrupt conduct. They are temporally distinct because they only arise in the course of investigation, and do not form part of the possibly corrupt conduct. Institutionally, the provisions of the ICAC Act are protective of the integrity of the investigative process carried out by the Commission, as compared with the Commission’s investigative functions which are concerned with corrupt conduct across the public service.

3. [51]

   While it is true that there is no express function conferred on the Commission to prosecute for offences under its own Act, steps taken to protect the integrity of its own investigation may readily fall within the scope of the incidental powers conferred by s 19(1) of the ICAC Act, as being necessary in connection with or reasonably incidental to “the exercise of its functions”. The necessary process is identified in the ICAC Act, s 116. Such a prosecution is not covered by the constraints on the contents of reports to Parliament under Pt 8, nor the restrictions on those functions under Pt 4 of the ICAC Act.

4. [52]

   Conduct the subject of the offences identified in Pt 9 (which include obstructing and hindering the operation of the Commission and giving false evidence at a compulsory examination) may well fall within the matters identified in Pt 10 involving contempt of the Commission. The Commission is not given powers to punish for contempt, but is empowered to present a certificate to the Supreme Court setting out the facts upon which the Court may inquire into the alleged contempt and punish the contemnor: ICAC Act, s 99. It is consistent with the structure of Pt 10 that offences under Pt 9 can be pursued by filing a court attendance notice in the Local Court under s 116, thereby instituting a process protective of the Commission’s integrity. There is nothing in the ICAC Act which is inconsistent with that approach. The approach is itself consistent with the authorities discussed above in relation to the prosecution of Ms Michelle Lazurus.

5. [53]

   It would follow from this conclusion that the Criminal Procedure Regulation 2010 (NSW), identifying an officer of the Commission as a “public officer” for the purposes of the s 3(1) of the Criminal Procedure Act, and thus a person entitled to commence proceedings without the authorisation of a registrar of the Local Court, pursuant to s 173 of the Criminal Procedure Act, would have work to do. Similarly, the post-2011 amendment of the Criminal Procedure Act providing that an officer of the Commission does not have power to commence proceedings unless with prior permission of the DPP, will also have work to do.

Conclusions

1. [54]

   It follows that the issuing of the three CANs against the applicant alleging breaches of the ICAC Act was valid. However, the issuing of the CANs for offences under the Crimes Act, being offences arising from the investigation of allegations of corrupt conduct on the part of the applicant, was invalid.

2. [55]

   It may be noted that the primary judge addressed the issues which have been raised in this Court, but not on the basis that there could have been a bifurcation in the result, so that some CANs were valid and others were not. The judge’s reasoning focused upon the provisions of ss 14 and 173 of the Criminal Procedure Act, noting that the exclusion from the power to prosecute under s 14 by reference to a restriction in another Act, was not engaged. He concluded that an officer of the Commission was a public officer, not constrained by the provisions of s 14A, and was a “person” who might institute proceedings in the absence of an express provision conferring the right to institute proceedings on some other personal class of persons. [25]

3. [56]

   The primary judge also noted the statements in the 1988 second reading speech for the ICAC Act, that the Commission “will not have power to conduct prosecutions for criminal offences” and “will not be engaging in a prosecutorial role”. [26] The judge was not persuaded that that view was correct, so that, in the absence of an express prohibition in the ICAC Act, the second reading speech could not be used to give the ICAC Act an effect which brought it within the exclusion of s 14 of the Criminal Procedure Act. The judge suggested that the second reading speech may have been referring to “a lack of power, perhaps as a result of there being no express provisions to take prosecutions or commence them.” [27]

4. [57]

   The applicant appeared in person before the primary judge, raising a plethora of challenges, most of which were unsupportable, but had to be addressed. A perusal of the transcript demonstrates that the analysis of the legislation set out above was not engaged in. That is not to deny the applicant the benefit of the legal arguments now developed by counsel, but it provides some explanation of the brevity of the consideration given by the primary judge to the issues addressed above.

Orders

1. [58]

   The draft notice of appeal as amended sought, among other things, an order setting aside the finding of the primary judge that an ICAC officer was empowered to prosecute in his official capacity by s 14 of the Criminal Procedure Act. It further sought a declaration that the ICAC had exceeded its jurisdiction when it made allegations that the applicant had committed criminal offences. Thirdly, it sought declarations as to the invalidity of the CANs.

2. [59]

   So far as these orders are concerned, first, the Court does not set aside findings but orders; secondly, a declaration of exceeding jurisdiction by making allegations constitutes a challenge to the report, and not to the CANs, and is therefore not within the scope of the ground of leave to appeal; thirdly, the declaration as to the invalidity of the CANs must be refined to accommodate the bifurcated conclusion set out above.

3. [60]

   Separately, it was necessary to deal with the fact that the Local Court had made orders on 9 December 2024 convicting the applicant on sequences 1 and 6 – 13 (the Crimes Act offences) and sentencing him for those offences. As to sequence 1, he was sentenced to a term of imprisonment of 12 months to commence on 9 June 2024 and expire on 8 June 2025, with a non-parole period terminating the day before the sentencing. With respect to the other 8 offences, the applicant was sentenced to an aggregate term of imprisonment for 15 months to commence on the date of sentencing (9 December 2024) and expire on 8 March 2026. The term was to be served by way of intensive correction in the community, subject to standard conditions. Although the relevant documents were not before this Court, it was common ground that the applicant promptly lodged an appeal to the District Court pursuant to Pt 3 of the Crimes (Appeal and Review) Act 2001 (NSW), the effect of which was to stay the execution of the sentences, pursuant to s 63 of that Act. The Court was further informed that the District Court appeals have not yet been determined, and that the Local Court charges for offences under the ICAC Act have been listed for judgment in July 2025.

4. [61]

   Counsel for the applicant accepted that relief restricted to declarations as to the invalidity of the CANs would be inadequate, given the subsequent events in the Local Court, and filed an amended draft notice of appeal seeking a declaration that the orders of the Local Court were invalid. However, rather than a declaration, the proper order, consequent on the applicant’s success in this Court, is to set aside the convictions and sentences in the Local Court entered on 9 December 2024.

5. [62]

   With respect to costs, neither party sought an order for costs in this Court. In those circumstances, having set aside the orders of the primary judge, it is appropriate that there be no order as to the costs of the proceedings below. The Court appreciates the willingness of both counsel and solicitors to appear pro bono and on short notice, and to provide significant assistance to the Court.

6. [63]

   The following orders should be made:

7. [64]

   GRIFFITHS AJA: I agree with Basten AJA.