RB v DPP

1. [1]

   The plaintiff was prosecuted in the Local Court on a charge of indecent assault upon a young girl. The prosecution was conducted by the first defendant, the Director of Public Prosecutions. The charge was dismissed and the plaintiff sought the costs of the proceedings. The magistrate declined to award costs, and in this court the plaintiff seeks judicial review of that decision.

2. [2]

   Apart from the complainant, it will be necessary to refer to a number of juveniles, including the plaintiff’s own daughters. It is to prevent disclosure of their identities that the plaintiff is not referred to by name in this judgment.

3. [3]

   The offence was alleged to have occurred between late December 2008 and early January 2009. The plaintiff and his family were on a camping holiday and the complainant, a friend of one of the plaintiff’s daughters, had been invited to join them. It is not necessary to examine the evidence in any detail. It is alleged that on the night in question the plaintiff rubbed the complainant’s vagina through her clothing. She told him to stop. A number of matters arising from the evidence contributed to the magistrate’s decision to dismiss the charge.

4. [4]

   The plaintiff gave evidence denying the offence. His evidence was supported by the evidence of his family: his wife, his son (an adult) and his two daughters. Put shortly, the effect of their evidence was that they were unaware of anything untoward having occurred and they were in positions sufficiently proximate to the complainant to have been alerted if it had. Further, the complainant made no complaint about the alleged incident until around September 2010, when she made the allegation to her sister and to a female friend, ID. That complaint was made after the plaintiff had contacted the school which his daughter, A and the complainant attended concerning allegations that the complainant and other girls had been bullying his daughter. That matter had been raised by the plaintiff in the course of a recorded interview with police conducted on 29 March 2011, and his Honour recognised it as a circumstance capable of suggesting that the complainant was “getting back at the accused and/or his family.”

5. [5]

   To understand the issues raised, it is necessary to sketch the history of the proceedings. On 29 March 2011, the day on which the plaintiff was interviewed, he was charged with aggravated indecent assault. At that stage police had a statement (a recorded interview) from the complainant. They were aware by then of the identity of witnesses to the incident itself: the plaintiff’s wife, his son and his two daughters, and to the complaint: the complainant’s sister and ID. No statement had been taken from any of them, and that remained the case when the police brief was served on 19 May 2011.

6. [6]

   At the hearing of the costs application there was a dispute about whether police had attempted to obtain statements from the plaintiff’s wife and his two daughters prior to service of the brief, but the magistrate found it unnecessary to resolve the matter. In the event, statements were not taken from the plaintiff’s wife or his son at any stage. Nor did the police investigate the plaintiff’s suggestion in the interview that the complainant may have had a motive to make a false complaint.

7. [7]

   Police interviewed ID on 5 July 2011. On 20 July the plaintiff’s daughters, A & H, were interviewed at school, without the knowledge of either of their parents. A’s interview also raised the complainant’s possible motive to make a false complaint. The police initially refused to release copies of the transcripts of those interviews, and the plaintiff was required to issue a subpoena to obtain them. The matter was set down for hearing on 5 September 2011, but it was adjourned by consent because those transcripts had not been supplied. It was relisted for 30 November. It was not until 9 November that police interviewed the complainant’s sister, and a copy of the transcript of that interview was served on the plaintiff on 18 November.

8. [8]

   The proceedings were heard over three days, 30 November 2011 and 22 and 23 March 2012. The complainant, her sister, ID, and both the plaintiff’s daughters were called in the prosecution case. The plaintiff’s wife and son were called in his case. The costs application was heard on 20 July 2012, and the magistrate gave his decision on that day.

9. [9]

   Section 213 of the Criminal Procedure Act 1986 provides for the award of professional costs to an accused in summary proceedings where a prosecution is withdrawn or dismissed. However, the discretion to award costs against a prosecutor acting in a public capacity is limited by s 214(1) of the Act, which provides:

10. [10]

    That subsection is applicable to the present case. In his application for costs in the Local Court the plaintiff relied upon pars (a), (c) and (d). His counsel, Mr Healey, who also appeared in this court, relied upon the failure of the police to take statements from the complainant’s sister, from ID, and from the plaintiff’s daughters before charging the plaintiff or before the police brief was served, and from the plaintiff’s wife and son at all. He also relied on the delay in the supply of transcripts of the interviews with the plaintiff’s daughters, and the lack of any investigation of the complainant’s possible motive to make a false complaint.

11. [11]

    In the light of these matters, he argued, the investigation had been conducted in an unreasonable or improper manner: par (a), there had been a failure to investigate properly, or at all, relevant matters of which the police were aware suggesting that the plaintiff might not be guilty: par (c), and there were exceptional circumstances relating to the conduct of the proceedings such that it was just and reasonable to award costs: par (d).

12. [12]

    The magistrate declined to award costs, having found that none of these statutory bases had been made out. As to par (a), his Honour said that he was not satisfied that the investigation, “as it was ultimately done”, was done unreasonably or improperly. As to par (c), he said that he was not satisfied that “ultimately the prosecutor unreasonably failed to investigate or properly investigate any relevant matter.” Finally, he found no exceptional circumstances within the meaning of par (d).

13. [13]

    His Honour referred to the “drawn out nature” of the investigation, but concluded that it had been conducted “properly and reasonably” when the matter finally came to hearing. He found that at the hearing “almost all of the relevant witnesses, both favourable and unfavourable to the accused, were called in the prosecution case and made available for cross-examination.”

14. [14]

    His Honour noted that the adjournment of the hearing on 5 September 2011 was the result of “witnesses and material” having been withheld from the defence. He indicated that if the application before him had been for the costs thrown away in relation to that day, his “conclusions would have been quite different.” However, he added that “somewhat belatedly” that material was provided (by the DPP), and was ultimately “available and was called in the prosecution case when the matter was called on for hearing.” He said that if the plaintiff’s daughters had not been called at the hearing, he might have concluded that costs should be awarded as that would have raised “a real issue in relation to the prosecution being conducted in an improper manner.” However, he noted, neither of these things happened.

15. [15]

    His Honour then said:

16. [16]

    His Honour concluded:

The proceedings in this court

1. [17]

   These proceedings for judicial review were instituted almost 12 months after his Honour’s decision. UCPR r 59.10, prescribing a period of 3 months in which to institute proceedings of this kind, was not in force at the relevant time. However, counsel for the Director, Mr Bourke, raised the issue of delay as a matter bearing upon the discretion to grant prerogative relief, assisting me by reference to authority on that question. He fairly acknowledged that the Director could not point to any particular prejudice resulting from the delay.

2. [18]

   The plaintiff provided some explanation for it in an affidavit deposing that he conducts a business as a lone trader, the income from the business is relatively modest, he is married with 3 children, and they live in a home subject to a substantial mortgage. He found it necessary to give careful consideration to whether he would undertake these proceedings, given the costs burden he may suffer in the event of their being unsuccessful.

3. [19]

   In the circumstances, I find this explanation reasonable and I do not consider that the delay is a matter militating against the grant of relief if a basis for it is made out.

4. [20]

   By an amended summons the plaintiff seeks orders pursuant to s 69 of the Supreme Court Act 1970, being an order in the nature of certiorari quashing the magistrate’s costs decision and an order in the nature of mandamus directing the Local Court to exercise its power under the relevant legislation according to law. Also sought are declarations to the effect that the prerequisites of s 214(1)(a), (c) and (d) of the Criminal Procedure Act have been established.

5. [21]

   Mr Bourke referred me to the helpful analysis of the nature of the relief sought by Beech-Jones J in O’Brien v Hutchinson [2012] NSWSC 429, a case also involving s 214 of the Criminal Procedure Act, at [4] ff. After referring to the principles relating to jurisdictional error and error on the face of the record enunciated in Craig v State of South Australia [1995] HCA 58, 184 CLR 163 and Kirk v Industrial Court of New South Wales [2010] HCA 1, 239 CLR 531, his Honour continued at [7]-[14]:

6. [22]

   In the present case judicial review is sought on the grounds that the magistrate’s decision was made “upon a mistaken apprehension of the limits of the jurisdiction of the Local Court to award costs in criminal matters”, and a misconception on the part of the magistrate of the nature of his function and the extent of his powers in the circumstances of the case.

7. [23]

   Mr Healey’s central argument was that his Honour’s reasons disclose that his focus was upon the fairness of the hearing rather than the reasonableness of the police investigation. It is the latter, not the former, which is the subject of s 214(1)(a) and (c) (although the conduct of the proceedings by the prosecutor, of course, is the subject of (d)).

8. [24]

   Mr Healey cited the decision of the Court of Criminal Appeal in Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13. That case arose from a successful appeal by the appellant company to the Land and Environment Court against a conviction in proceedings brought against it in the Local Court by the respondent Council. The judge of the Land and Environment Court hearing the appeal had refused an application by the appellant for its costs. Before the Court of Criminal Appeal was a stated case, pursuant to s 5BA of the Criminal Appeal Act 1912, against the judge’s determination. The relevant legislation was s 70 of the Crimes (Local Courts Appeal and Review) Act 2001 (now Crimes (Appeal and Review) Act 2001), which is relevantly similar to s 214. In particular, s 70(1)(a) and (c) are in identical terms to pars (a) and (c) of s 214(1) of the Criminal Procedure Act.

9. [25]

   For present purposes, it is sufficient to say that a potential witness had not been called in the prosecution case. Evidence was given by officers of the respondent of a conversation with that person, which provided some indication of what he might have been able to say, but a statement was not taken from him. The judge had determined that the failure to call that witness did not provide a ground for the award of costs because he could not determine what the outcome would have been if the witness had been called, and was “not able to be satisfied that his evidence would have suggested the appellant might not be guilty or that the proceedings should not be brought … .” It will be seen that that finding used the language of s 70(1)(c).

10. [26]

    The Court of Criminal Appeal held that his Honour had not fallen into error insofar as his decision was based upon par (c). However, the court did find error in his Honour’s failure properly to consider par (a).

11. [27]

    Hodgson JA (with whom Howie and Price JJ agreed) noted at [18] that the submissions based on the failure to call the witness were misconceived. That failure, his Honour said, “relates to the manner in which the proceedings were conducted, not to the investigation.” Explaining the focus of pars (a) and (c) of the subsection, his Honour said at [20]-[21]:

12. [28]

    The issue arose again, although with a somewhat different emphasis, in De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868, a decision of Davies J. (This decision was referred to by Beech-Jones J in O’Brien v Hutchinson, cited above, at [7].) Like the present case, that was an application by the plaintiff for judicial review of the decision of a magistrate to refuse an order for costs in his favour after a charge against him of assault occasioning actual bodily harm was dismissed in the Local Court. Section 214 was the applicable legislation. The plaintiff was alleged to have assaulted his step-daughter during an incident in which the only witnesses were family members. His case was that the complainant had inflicted upon herself the injury which was the subject of the charge.

13. [29]

    One of the witnesses was the plaintiff’s 13 year old son, from whom the police did not obtain a statement at any stage and who was not called in the prosecution case. Prior to the Local Court hearing the plaintiff obtained a statement from him, supportive of his case, and forwarded it to the police. At the hearing evidence of a forensic pathologist was led in the plaintiff’s case, which was also strongly supportive of his account and which influenced the magistrate’s decision to dismiss the charge.

14. [30]

    The plaintiff’s application for costs on the basis of the failure of the police to take a statement from his son was founded upon s 214(1)(a) and (c). In declining to order costs on this basis, the magistrate focused upon the impact the son’s evidence might have had upon the conduct of the proceedings. His Honour expressed the view that the son should have been interviewed but, on the question whether it was unreasonable not to have done so, questioned “what benefit would have been achieved by that.” He questioned whether a Prasad style submission might have been made at the end of the prosecution case, and whether any time might have been saved. He also noted the age of the son and the fact that the incident occurred in a domestic context.

15. [31]

    Davies J referred to the relevant principles governing judicial review of the decision of an inferior court set out in Kirk v Industrial Court of New South Wales (supra), including the High Court’s reference at [72] to a basis for review arising from “misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.” His Honour said at [23] that if the magistrate in the case at hand “asked himself the wrong question when considering the question of unreasonableness in s 214, this would be a misconstruction of the relevant statute … .”

16. [32]

    His Honour found at [26] that the magistrate “seemed to regard the touchstone of reasonableness as to whether it would have changed the way the trial ran.” This focus upon the conduct of the hearing, he concluded, demonstrated the error identified in Cliftleigh Haulage. His Honour said at [32] that the “question to have asked was not whether interviewing and calling [the son] would have made a difference to the way the trial would run, but whether the failure to do so meant that the investigation was conducted in an unreasonable or improper manner.”

17. [33]

    At [30] his Honour set out the passage from the judgment of Hodgson JA in Cliftleigh Haulage at [20]-[21] which I have quoted above. His Honour added at [31]:

18. [34]

    His Honour added (also at [32]) that, given that the statement of the son provided strong support for the plaintiff’s case, the magistrate should have considered whether the investigation was unreasonable within the terms of par (c). He continued, “That may have been by asking himself what difference it would have made, not to the way the trial was run, but to whether the plaintiff might not have been guilty or that the proceedings should not have been brought.” His Honour also found that, in any event, the magistrate had taken into account irrelevant considerations on this issue, that is, the age of the son and the fact that he was a member of the family in whose domestic milieu the incident occurred. These were not relevant considerations, given the substance of the son’s evidence, and accordingly there was error on the face of the record giving rise to relief by way of certiorari.

19. [35]

    In the present case, Mr Healey submitted, the magistrate had misconstrued s 214 by limiting his discretion to award costs “to situations where the defence was prejudiced by the unreasonable or improper actions” of the Director or the police. He relied in particular upon the passages from his Honour’s judgment to which I have referred at [14]-[16] above, in which his Honour found that ultimately, prior to the hearing, the relevant material had been supplied to the plaintiff and, with the exception of the plaintiff’s son and his wife, the relevant witnesses were called in the prosecution case, so that it was “a fairly conducted prosecution.”

20. [36]

    Mr Healey pointed out that s 214(1)(a) and (c) do not require any unfairness or prejudice to the defence to be demonstrated. He argued that the obvious shortcomings in the investigation, which his Honour acknowledged, necessarily led to the conclusion that it had been conducted unreasonably.

21. [37]

    Mr Healey also referred specifically to his Honour’s observation that nothing turned upon the fact that the plaintiff’s son and wife were not called in the prosecution case. This, he submitted, was an error on the face of the record, as the failure by the Director to call all available material witnesses was sufficient to show that the investigation and prosecution were conducted in an unreasonable or improper manner. At the very least, given that there was a dispute as to whether police attempted to interview the plaintiff’s wife, the failure to interview or call his son was said to be sufficient to characterise the investigation in that way.

22. [38]

    Those last arguments appear to elide the investigation with the conduct of the curial proceedings, but the thrust of Mr Healey’s argument is clear enough. It should also not be forgotten that the application for costs was made partly on the basis of s 214(1)(d), impugning the conduct of the proceedings by the prosecutor. That paragraph would embrace the complaint about the failure to call the plaintiff’s son and wife in the prosecution case, although the word “conduct” is probably broad enough to include the steps taken by a prosecutor in preparing the case for hearing. That said, the focus of the argument here was the reasonableness of the investigation.

23. [39]

    In response to these arguments, Mr Bourke submitted that the magistrate had not fallen into the error for which Mr Healey contended. A fair reading of the reasons as a whole, he said, show that his Honour did assess the reasonableness of the investigation. Mr Bourke noted that his Honour addressed each of the relevant paragraphs of s 214(1) and, while being critical of the dilatory progress of the investigation, concluded that it had been conducted properly and reasonably by the time the case came to hearing.

24. [40]

    Mr Bourke argued that it was wrong to focus upon the progress of the investigation (or the lack of it) at the time the plaintiff was charged or when the police brief was served, saying that a finding that there had been some unreasonable or improper conduct at any stage of the process of investigation and prosecution was not a proper basis for an award of costs. He submitted that his Honour was entitled to look, as he did, at the whole of the investigation and the proceedings. It was in this context, he argued, that the magistrate’s findings that the investigation had been conducted reasonably by the time of the hearing, that relevant material had been disclosed to the defence, that the prosecution had called effectively all of the relevant witnesses and that, accordingly, the prosecution had been fairly conducted, should be understood.

25. [41]

    The focus of par (c) of s 214(1) is, of course, narrower than that of par (a). Relevantly for present purposes, it is directed to whether there was an unreasonable failure to investigate any relevant matter which suggested that the plaintiff might not be guilty. In the course of the hearing before me, the question was raised whether it would have been appropriate for his Honour to have considered whether, if the investigation had been undertaken more promptly, the prosecution might have been terminated without coming to hearing. It appears that that issue was argued before his Honour. I was assisted on this matter by further written submissions from both counsel.

26. [42]

    Mr Bourke accepted that there may be cases in which a magistrate, adopting that approach, might find that par (c) was satisfied. Such a case might be one in which the accused raised an alibi, and there was credible evidence in support of it which a reasonable investigation should have uncovered and which might have shown that the prosecution did not have a reasonable prospect of success. Mr Bourke argued that his Honour did address that issue in the present case, finding that it was not a case of that kind.

27. [43]

    So much is apparent, Mr Bourke said, from the passage of his Honour’s reasons quoted at [16] above, in which he characterised the allegations made by the complainant as “properly jury questions”, adding that the fact that doubt was cast upon the complainant’s reliability by other investigations did not lead to the conclusion that costs should be granted. Mr Bourke also relied upon the following observation with which his Honour concluded his reasons:

28. [44]

    Mr Bourke argued that it is clear from these passages of his Honour’s reasons that, for the purpose of par (c), he had considered the course of the investigation from its outset and concluded that, notwithstanding the material favourable to the plaintiff which emerged as the investigation proceeded, there was a prosecution case fit to go to trial. Implicit in that finding was the rejection of any argument that the prosecution might have been terminated at some earlier stage.

29. [45]

    The thrust of Mr Healey’s further submissions was that, for the purpose of par (c), the question is not whether “at the end of the day” there was a prosecution case fit to proceed to trial. The issue was whether there was an unreasonable failure to investigate a matter of which the prosecutor was aware which suggested that the plaintiff might not be guilty.

30. [46]

    Mr Healey drew an analogy with the reasonable suspicion of the commission of an offence necessary to justify an arrest by a police officer pursuant to s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002. He also referred to the examination of the notion of reasonable suspicion (in a different context) by the Court of Criminal Appeal in R v Rondo [2001] NSWCCA 540, 126 A Crim R 562. In that case Smart AJ, with whom Spigelman CJ and Simpson J agreed, said at [53] (576-7) that a reasonable suspicion “involves less than a reasonable belief but more than a possibility”, that it is not arbitrary and that some factual basis for it must be shown. The materials upon which it is based “must have some probative value.” His Honour also said that it is necessary to determine whether the information said to give rise to the suspicion “afforded reasonable grounds” for it, and that in answering that question “regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.”

31. [47]

    Using that analogy, Mr Healey argued that the issue in the present case was whether:

32. [48]

    Mr Healey’s position was that it was not necessary for his Honour to have formed a view as to whether this prosecution should have been brought to an end at an earlier stage, although that view was open and, of itself, was sufficient to enliven the court’s jurisdiction to award costs. His primary submission was that the prosecution was initiated upon the uncorroborated allegation of the complainant, following her very late complaint, which was made in circumstances suggesting that she may have had a motive to make a false allegation against the plaintiff. Although the police were made aware of that possible motive at the outset by the plaintiff himself and later by his daughter, no enquiries were made about it of the complainant herself or of the school. Such enquiries should have been made, Mr Healey said, because the suggested motive was a matter going to the reliability of the complainant and the probative value of the information supplied by her. In the terms of par (c), Mr Healey submitted, it was a relevant matter suggesting that the plaintiff might not be guilty, and it was unreasonable not to have investigated it.

33. [49]

    On the issue of the reasonableness of the investigation, both counsel referred to a passage from my judgment in JD v DPP & Ors [2000] NSWSC 1092. That case concerned an earlier incarnation of s 214 (s 41A of the Justices Act 1902), and I found that a magistrate fell into error in holding that a conclusion that an investigation was conducted in an unreasonable manner required a finding that it fell “grossly below optimum standards.” At [31] I said:

34. [50]

    Mr Bourke pointed out, correctly, that the onus was on the plaintiff to establish any of the bases for an award of costs under pars (a), (c) or (d) of s 214(1) and, even if a basis were established, the decision whether to award costs remained a discretionary exercise. He also referred to the judgment of Levine J in Dong v Hughes [2005] NSWSC 84, another case involving the Justices Act provision, in which his Honour expressed the view at [38] that the legislative intent behind the provision “was to severely restrict the discretion to award costs against the prosecution.”

35. [51]

    I have not found this matter easy to resolve. His Honour’s reasons for refusing costs were given ex tempore, and I am mindful of authority, referred to by Beech-Jones J in O’Brien v Hutchinson at [14], quoted above, that this court should take a practical, common sense approach to ex tempore reasons of the magistrate in a busy Local Court, with an eye to their substance. Nevertheless, I think that there is force in Mr Healey’s primary submission that the focus of his Honour’s reasons was the fairness of the hearing, rather than the process of the investigation.

36. [52]

    True it is that his Honour referred expressly to pars (a) and (c) of s 214(1), saying that he did not find either of those paragraphs established. However, he gave no reason for that conclusion other than his finding that by the time of the hearing the investigation which had been undertaken was not unreasonable. I accept Mr Bourke’s argument that the fact that an investigation was dilatory (including delay in supplying relevant material to the defence) does not necessarily mean that it was unreasonable and that, generally speaking, it is the state of the investigation at the time the matter comes for hearing which is relevant. However, his Honour’s reasons do not address aspects of the case which were not investigated at all.

37. [53]

    As I have said, no statement was ever taken from the plaintiff’s wife or his son. They were called in the defence case, and it is apparent that their evidence supported the plaintiff’s case, as did that of his daughters. Having observed that their evidence was “effectively a reiteration” of the evidence of the daughters, his Honour found that it did not call for separate investigation. This is to evaluate the investigation with the wisdom of hindsight after the hearing. The fact remains that they were witnesses whom one would have expected the police to interview. If they had been, further material would have emerged capable of suggesting that the plaintiff might not be guilty. This was a deficiency capable of raising an issue under both pars (a) and (c) of the subsection. (Whilst, as I have said, there may have been a question about the willingness of the wife to be interviewed, this is certainly true of the failure to interview the son.)

38. [54]

    The same is true of the failure of the police to investigate the possible motive of the complainant to make a false allegation against the plaintiff, a matter which was an important part of Mr Healey’s case on costs. About this his Honour said nothing in his reasons. As I have said, it is apparent from his Honour’s reasons for dismissing the charge that he accepted that the plaintiff had made a complaint about the complainant’s behaviour towards his daughter, and that he saw in that a possible motive on her part to fabricate her account. However, here also, that is no answer to a lack of investigation of the matter.

39. [55]

    It could be said that the need to pursue enquiries of the plaintiff’s wife and son, and of his complaint about the complainant’s treatment of his daughter, was heightened, not lessened, by the fact that both his daughters had made statements supporting his case. As to par (c) generally, I find it unnecessary to decide whether consideration of the issue raised by it would be assisted by reference to the notion of reasonable suspicion in other legislative contexts to which Mr Healey referred.

40. [56]

    These deficiencies in the investigation needed to be addressed. I am mindful of the fact that the failure to refer to a relevant matter does not necessarily establish jurisdictional error or even error on the face of the record: O’Brien v Hutchinson at [11]-[13]. However, as I have said, insofar as his Honour did address the fact that statements were not taken from the plaintiff’s wife and son, he did so only in the light of the importance their evidence assumed in the defence case at the hearing. The fact that he did not address at all the lack of investigation of the complainant’s possible motive to give a false account is consistent with the same approach. My reading of his Honour’s reasons as a whole conveys to me that the fairness of the hearing of the case was at the forefront of his reasons in declining to order costs, and that appropriate consideration was not given to the investigation. I am satisfied that his Honour did fall into the error identified in Cliftleigh Haulage and De Varda v Constable Stengord (supra).

41. [57]

    Accordingly, the decision to refuse costs should be quashed and the matter remitted to the Local Court for reconsideration. Of course, what I have written in no way dictates what the outcome should then be. It is a matter for that court to determine whether any basis under s 214(1) for the award of costs has been made out and, if so, if costs should be awarded in its discretion. I would not make the declaration to which the plaintiff seeks to the effect that the prerequisites of any of pars (a), (c) or (d) of that subsection have been established.

42. [58]

    I shall consult the parties about the formal orders to be made and, if necessary, hear argument on the costs of these proceedings.