JE v Secretary, Department of Family and Community Services

1. [1]

   BELL P: I agree with the reasons of, and orders proposed by, Gleeson JA. This was, as his Honour has observed in par 9 of his reasons, a sad case. It should be acknowledged and recorded that the case was argued on the part of all parties with sensitivity and dignity.

2. [2]

   GLEESON JA: The applicant is the mother of two children who were removed from her care by officers of the Department of Family and Community Services (the Department) on 18 May 2012. The children remain the subject of care orders made by the Children’s Court which allocated parental responsibility for the children to persons other than the applicant (the care proceedings). Those orders were made under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act). The applicant, being aggrieved by the circumstances in which the children were removed from her care, brought separate proceedings in 2016 claiming damages against, among others, “The Department of Community Services”, and “Gosford Hospital” (the damages proceedings).

3. [3]

   The applicant, who appeared unrepresented, seeks to challenge two decisions of the District Court, one in the care proceedings, the other in the damages proceedings.

4. [4]

   First, the applicant seeks leave to appeal against a decision of Judge Gibb made in the District Court on 9 November 2016 dismissing the damages proceedings. The summons seeking leave to appeal was filed on 18 April 2019 (2019/122139) and is well out of time. Accordingly, the applicant requires an extension of time to seek leave to appeal: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.10(2).

5. [5]

   Second, the applicant seeks judicial review of a decision of Judge Olsson made in the District Court on 22 August 2018 dismissing proceedings by way of an appeal from a decision of the Children’s Court concerning the allocation of parental responsibility for one of her children. The applicant initially filed a notice of appeal (2018/287363) and also a summons seeking leave to appeal (2018/287395) on 17 September 2018, which both purported to challenge the decision of Judge Olsson. The applicant then filed a summons (supervisory jurisdiction) on 12 November 2018 (2018/347455).

6. [6]

   The applicant acknowledged that the notice of appeal and the summons seeking leave to appeal have been overtaken by the summons seeking judicial review. That concession was properly made. Given that the proceedings in the District Court were by way of an appeal from a decision of the Children’s Court pursuant to s 91 of the Care Act, there is no right of appeal to this Court, but proceedings may be brought by way of judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW): Druett v Director-General of Community Services [2001] NSWCA 126; X v Director General of the Department of Community Services [2001] NSWCA 413 at [24]; Muldoon v Church of England Children’s Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46 at [8]; Colquhoun v District Court of New South Wales [2014] NSWCA 460 at [7]; DC v Secretary, Department of Family and Community Services [2017] NSWCA 225 at [16]. The notice of appeal and summons seeking leave to appeal are not competent and should both be dismissed.

7. [7]

   Intervention by this Court requires that the applicant establish an error of law on the face of the record in the court below, or jurisdictional error. The “record” includes the originating process, the orders and reasons for judgment: Supreme Court Act, s 69(3) and (4).

8. [8]

   One recognised form of jurisdictional error is a failure to accord procedural fairness during a hearing: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [60]. Such a failure is susceptible to correction as jurisdictional error: Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 at [10].

9. [9]

   It should be said immediately that it is sad for all of the affected parties – the applicant, the two children, their respective fathers and their maternal grandparents – that seven years after the removal of the two children from the applicant’s care in 2012, there remains a dispute with respect to what care orders are in the best interests of the children.

Pseudonym and non-publication orders

1. [10]

   On 28 November 2018, orders were made by the Registrar of the Court of Appeal in the judicial review proceedings, including:

   1. (1)

      that the children the subject of the care proceedings be referred to by the pseudonyms, Michelle and Dora, dispensing with the need for a tutor to be appointed for the two children, and granting leave to separate solicitors to appear in each child’s interest;

   2. (2)

      joining additional parties as respondents to the proceedings in this Court and ordering that certain respondents should be referred to by their initials: AM, the father of Michelle, SH, the father of Dora, and SE and YE, the maternal grandparents of the two children;

   3. (3)

      a non-publication order prohibiting publication that would identify or tend to identify the parties (other than the Secretary, Department of Family and Community Services (the Secretary), and the District Court of New South Wales) except for the purpose of the proper conduct of the proceedings.

Procedural background

1. [11]

   The applicant is the mother of five children. At the time of the removal of two daughters from the applicant’s care on 18 May 2012, Michelle was aged eight years and Dora was about to turn age two. They were both living at a motel on the Central Coast. The children were removed from the applicant’s care by officers of the Department, exercising power pursuant to s 43(2) of the Care Act, which at that time provided:

2. [12]

   Section 43(2) has since been amended and the references to the “Director-General” have been replaced by the words “the Secretary”, which term is defined to mean the Secretary of the Department of Family and Community Services: Care Act, s 3.

3. [13]

   The removal order on 18 May 2012 was signed by a caseworker on behalf of the Chief Executive of the Department (then known as the Department of Human Services). That order stated that the children had been removed because the Chief Executive suspects on reasonable grounds that the children are in need of care and protection, and are not subject to the supervision or control of a responsible adult, and are living in or frequenting a public place.

4. [14]

   The order further stated:

5. [15]

   Michelle is presently nearly 16 years of age and lives with her father, SM. Dora is now aged nine years and lives with the maternal grandparents. Neither daughter has lived with their mother since 2012.

6. [16]

   Following the commencement of proceedings by the Director-General (now the Secretary) in the Children’s Court at Wyong on 18 May 2012, the Children’s Court made final orders on 8 August 2013 under s 62 of the Care Act allocating parental responsibility for the children to the Minister for Family and Community Services (the Minister) for a period of six months and upon expiry of the orders, parental responsibility was to be allocated to the maternal grandparents until the children attained the age of 18 years.

7. [17]

   On 5 September 2013, the applicant filed a summons in the District Court appealing from the orders of the Children’s Court made on 8 August 2013. The applicant sought parental responsibility for the two children. A party only had to be dissatisfied with the order of the Children’s Court to appeal: Care Act, s 91(1). An appeal to the District Court is by way of a new hearing: Care Act, s 91(2).

8. [18]

   The appeal was heard before the District Court from 3-5 February 2014. On 24 April 2014, Judge North delivered an ex tempore judgment in which he found that there was no realistic possibility of the two children being restored to the applicant and denied restoration of the children to the care of the applicant. However, his Honour allowed the appeal, discharged the orders of the Children’s Court of 8 August 2013 and ordered that Michelle be placed under the sole parental responsibility of the maternal grandparents until she attained the age of 18 years. His Honour further ordered that parental responsibility for Dora be allocated to the maternal grandparents, except for her cultural upbringing, which was to be shared jointly between the maternal grandparents and Dora’s father, SH. His Honour also made various orders for the children to have contact with their respective parents.

9. [19]

   The applicant filed a statement of claim on 27 June 2016 in the District Court against “The Department of Community Services”, a number of employees of the Department, including a solicitor acting for the Department and a case worker, “Gosford Hospital”, a number of employees of the hospital, including BE, a social worker, and a doctor, and also Michelle’s father, AM, his wife, SM, and another person. The claim by the applicant was for:

10. [20]

    The statement of claim contained no allegations (whether of fact or of law) whatsoever. Aside from the description of the claim, and the relief sought, it did not attempt to identify the basis on which that case was advanced.

11. [21]

    On 20 September 2016, the State of New South Wales (the State) and Central Coast Local Health District filed a notice of motion seeking an order dismissing the proceedings pursuant to UCPR, r 13.4 or an order striking out the statement of claim pursuant to UCPR, r 14.28. BE also filed a motion on 20 September 2016 seeking an order that the proceedings be dismissed pursuant to UCPR, r 13.4.

12. [22]

    On 9 November 2016, Judge Gibb granted leave to the State and the Central Coast Local Health District to intervene, although not formally named as defendants. The applicant acknowledged in this Court that the affidavit referred to in the statement of claim (see [19] above) was not put into evidence by her on the hearing of the application.

13. [23]

    Judge Gibb found that the statement of claim pleaded no cause of action at all. Her Honour made orders that the proceedings be dismissed as against the State, the Central Coast Local Health District and BE pursuant to UCPR, r 13.4 and that the statement of claim be struck out pursuant to UCPR, r 14.28 for disclosing no cause of action against any legal entity. Her Honour further ordered the applicant pay the costs of the State and Central Coast Local Health District jointly and severally on an indemnity basis and the costs of BE on an indemnity basis.

14. [24]

    On 26 April 2017, AM filed an application in the Children’s Court at Woy Woy seeking leave under s 90 of the Care Act to vary the orders made by Judge North on 24 April 2014. AM sought restoration of parental responsibility of Michelle, who had resided in his care with the agreement of the maternal grandparents since January 2016. The Secretary, Michelle and the maternal grandparents supported the application of AM. The applicant opposed the application and care plan.

15. [25]

    On 14 July 2017, the Children’s Court granted leave to AM to apply to vary the earlier orders made by Judge North. On 1 September 2017, a care plan supporting restoration to AM was filed.

16. [26]

    Section 90(1) provides that an application for the rescission or variation of a care order may be made with the leave of the Children’s Court. Section 90(2) provides that the Children’s Court may grant leave if it appears that there has been a significant change in any relevant circumstances since the care order was made or last varied. At the time of granting leave to make an application to vary or rescind the care order, the Children’s Court had to consider the matters set out in sub-sections (2A) and (6) of s 90, which provided:

17. [27]

    Section 90(7) provides:

18. [28]

    On 12 April 2018, Magistrate McManus in the Children’s Court delivered an ex tempore judgment finding that she was satisfied that it was appropriate to rescind the orders made by Judge North in the District Court on 24 April 2014. The Magistrate found that there was a realistic possibility of restoration of Michelle to AM, and no realistic possibility of her restoration to the applicant. The Magistrate rescinded the orders of the District Court of 24 April 2014 and allocated parental responsibility for Michelle to AM until she attained 18 years of age.

19. [29]

    On 25 September 2017, the applicant filed an application in the Children’s Court at Woy Woy pursuant to s 90 of the Care Act seeking restoration of both children.

20. [30]

    Shortly thereafter on 7 November 2017, the applicant also filed an appeal to the District Court at Newcastle. While the subject matter of that appeal was not in evidence before this Court, it is common ground that this appeal was dismissed by the District Court at Newcastle on 13 December 2017. The applicant did not seek to challenge that order by way of an application for judicial review.

21. [31]

    Also on 13 December 2017, the applicant sent an email to the Children’s Court at Woy Woy in relation to her s 90 application stating, “I am withdrawing my application to the Children’s Court”. The applicant further stated in her email that she would not be attending on the listed date of 8 February 2018. When the applicant did not appear on that date, the Children’s Court made an order dismissing the s 90 application. Notice of the order dismissing that application was given to the applicant by the Children’s Court on 20 April 2018.

22. [32]

    The applicant did not appeal to the District Court against the dismissal by the Children’s Court on 8 February 2018 of her s 90 application within the time permitted for commencing an appeal, namely, 28 days after the material date, being the date on which the decision is pronounced or given: UCPR, r 50.3(1)(a). Nor did the applicant seek an extension of time to appeal: UCPR, rr 50.3(1)(b), (c).

23. [33]

    On 8 May 2018, the applicant filed a summons in the District Court appealing against the orders of the Children’s Court made on 12 April 2018 varying Michelle’s care plan and also purporting to appeal against the orders made by Judge Gibb on 9 November 2016. The applicant joined as defendants, the Director-General of the Department, Central Coast Health District (Gosford Hospital), AM and SE and YE named together as the fourth defendant.

24. [34]

    The relief sought in the summons is difficult to comprehend. Order 2 sought “[t]hat the proceedings at Woy Woy Children’s Court from 19th June 2017 to the 12th April 2018 be dismissed”. That seems to be a reference to the s 90 application by AM, which was determined by the Children’s Court on 12 April 2018.

25. [35]

    Order 3 sought “[f]or the orders to remain in place with District Court 21st July 2014 Children & Young Persons (Care and Protection) Act 1998 (“the Act”) and that pursuant to s 86 of the Act the children’s contact arrangements to parents”. Ignoring the incorrect date, that seems to be a reference to the orders made by Judge North on 24 April 2014.

26. [36]

    Order 4 sought “… [t]hat the parental responsibility for the children [Michelle] and [Dora] be allocated to the mother [the applicant] on (sic) the exclusion of the Department of Family and Community Services, (Wyong CSC) to be dismissed regards the support to father [AM] on his application for restoration to [Michelle]”. Again, that seems to be a reference to the s 90 application by AM in the Children’s Court, albeit that application was only in relation to Michelle.

27. [37]

    Orders 5 and 6 sought orders against “Central Coast District Health” which seem to be directed to the applicant’s complaint that the children were removed in 2012 because the Area Health Service and the Gosford Hospital gave false information to the Department.

28. [38]

    Ground 1 of the summons sought, in effect, that parental responsibility for both children be allocated to the applicant. Ground 3 of the summons sought to challenge the decision of Judge Gibb on 9 November 2016 dismissing the damages proceedings brought by the applicant. Ground 4 of the summons sought “pursuit for compensation relief sort (sic) on the claim of professional misconduct & duty care regards to my health, by Department of Family and Community Services (FACs) and Central Coast District Health causing previous and ongoing proceedings”. Again, that seems to be a reference to the damages proceedings which were dismissed by Judge Gibb.

29. [39]

    On 24 July 2018, the Secretary and Central Coast Local Health District filed a notice of motion in the District Court seeking various orders, including:

    1. (1)

       that the proceedings as they related to the second defendant (Central Coast Local Health District) be dismissed or struck out pursuant to UCPR, rr 13.4 or 14.28;

    2. (2)

       that the proceedings as they related to the child, Dora, be dismissed or struck out pursuant to UCPR, rr 13.4 or 14.28 on the ground, among others, that the order of the Children’s Court at Woy Woy made on 12 April 2018 did not relate to the child, Dora.

30. [40]

    The Secretary and Central Coast Local Health District did not seek an order that the proceedings be dismissed or struck out insofar as they related to the child, Michelle.

31. [41]

    On the hearing of that motion on 22 August 2018, Judge Olsson made an order, “The summons is dismissed”. In her brief reasons (which appear to have been interrupted by the applicant as they were being delivered), her Honour said that:

32. [42]

    The transcript of the hearing before Judge Olsson on 22 August 2018 records that after this order was made, the applicant asked:

A. Application for judicial review – orders of Judge Olsson on 22 August 2018

1. [43]

   On 6 February 2019, the Registrar of the Court of Appeal made an order striking out that part of the summons filed 12 November 2018 relating to the decision of Judge Gibb on 9 November 2016. The applicant has not sought to review that decision, which was plainly correct.

2. [44]

   The summons does not contain any meaningful grounds challenging the decision of Judge Olsson. Nor do any grounds appear in the applicant’s supporting affidavits sworn 16 November 2018 and 6 March 2019 or in her Statement of Issues dated 6 February 2019

3. [45]

   The applicant acknowledged that she did not seek to challenge the dismissal of the proceedings insofar as they related to the Central Coast Local Health District and the child, Dora. That concession was properly made.

4. [46]

   As regards the Central Coast Local Health District, it was not a proper or necessary party to the s 91 appeal and that appeal was not the appropriate vehicle for the applicant to challenge the order made by Judge Gibb on 9 November 2016. The procedure to challenge the order of Judge Gibb was by way of an application for leave to appeal to this Court, not a further application in the District Court.

5. [47]

   As regards the child, Dora, the District Court was only exercising power in respect of an appeal from the order of the Children’s Court made on 12 April 2018 and that order only related to the child, Michelle. Accordingly, the applicant’s purported appeal to the District Court, insofar as it related to the child, Dora, was not competent.

6. [48]

   In oral argument, the applicant submitted that she was denied procedural fairness by the District Court insofar as Judge Olsson had dismissed the proceeding in its entirety, including the s 91 appeal relating to the child, Michelle. This submission picked up and adopted what was common ground in the written submissions of the Secretary and counsel for Michelle, that the Secretary had not, nor had any other respondent to the motion, sought to dismiss the proceedings as it related to the child, Michelle. That is, the applicant was denied a fair hearing of her challenge to the orders of the Children’s Court on 12 April 2018 allocating parental responsibility for Michelle to her father, AM.

7. [49]

   Accepting that the applicant was denied procedural fairness, the applicant and counsel for Michelle both submitted that the s 91 appeal relating to the child, Michelle, should be remitted to the District Court for determination. The Secretary and the maternal grandparents opposed the grant of such relief on discretionary grounds.

8. [50]

   The well-recognised grounds for withholding relief include “if no useful result could ensue”, that is, on the ground of utility: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 359 at 400, cited in Rodger v De Gelder (2011) 80 NSWLR 594; [2011] NSWCA 97 at [88]. See also Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 (Aala) at [58] (Gaudron and Gummow JJ).

9. [51]

   In opposing the grant of relief, the Secretary emphasised that Michelle is at a crucial age of her development, litigation is stressful, particularly for a young person about to turn 16 years when the subject matter concerns with whom she would live. The submission continued that absent any change in Michelle’s views expressed in the Children’s Court, the applicant has no real prospects of success in seeking a care order that Michelle live with her. The Secretary also emphasised that the litigation would be stressful for AM and for the maternal grandparents who will be necessary parties to any hearing of the s 91 appeal in the District Court.

10. [52]

    SE, the maternal grandfather, supported this submission, pointing to the lengthy history of the proceedings, that Michelle’s views in the Children’s Court were that she wished to remain living with AM and not see the applicant, and that considerable weight ought to be given to her views given her age, that any further proceedings would likely have a psychological impact on the two children.

11. [53]

    In Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 (Stead) at 145, the High Court held that "not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial". That was said in the context of an appeal from a trial judge who had stopped a party from addressing on the topic of a witnesses’ evidence. The High Court held at 149 that all that the appellant needed to show to obtain a new trial was that “the denial of natural justice deprived him of the opportunity of a successful outcome”.

12. [54]

    The High Court returned to the issue of the effect of a breach of procedural fairness in Aala, in the context of an application for prerogative relief under s 75(v) of the Constitution. While accepting that relief may be refused on the ground of utility, Aala emphasised that where a breach of procedural unfairness is proved, ordinarily the applicant would be entitled to relief and the discretion to refuse relief will not be lightly exercised: at [104] (McHugh J), [131] (Kirby J), [212] (Callinan J). The remarks of McHugh J at [104] are instructive:

13. [55]

    It is not necessary for present purposes to consider the remarks of Gaudron and Gummow JJ in Aala at [57]-[60] that the cases turning upon “trivial” breaches of the requirements of procedural fairness are better understood on other grounds.

14. [56]

    Although there may well be a powerful argument against any variation of the existing care order with respect to Michelle (assuming that Michelle adheres to her wishes to remain in her father’s care), it is not possible to say, without this Court having considered the material relevant to the appeal before Judge Olsson, including the evidence before the Magistrate in the Children’s Court, and any updating material as to Michelle’s wishes and best interests, that the denial of procedural fairness by the District Court “could have had no bearing on the outcome” of the applicant’s appeal, as it related to the child, Michelle: Stead. None of this material was before the Court. Accordingly, it is not possible to conclude that there is no utility in remitting the proceedings to the District Court to the Children’s Court for determination of the s 91 appeal; cf DC v Secretary, Department of Family and Community Services at [123]-[134].

15. [57]

    The appropriate relief is to vary the dismissal order of Judge Olsson and remit the s 91 appeal to the District Court for determination according to law as it relates to the care orders with respect to the child, Michelle.

B. Leave to appeal – orders of Judge Gibb on 9 November 2016

1. [58]

   Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, leave will only be granted concerning matters involving issues of principle, questions of general public importance or involving an injustice which is reasonably clear, in the sense of being more than merely arguable: Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].

2. [59]

   As indicated, the applicant requires an extension of time for leave to appeal because the summons seeking leave to appeal filed on 18 April 2019 is 29 months out of time.

3. [60]

   In Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55], Basten JA (Hodgson and Ipp JJA agreeing at [1] and [17] respectively) referred to four factors relevant to the exercise of the discretion to extend time for an appeal: the length of the delay, any explanation for the delay, any prejudice to the respondent, and whether the applicant for the extension has a fairly arguable appeal. Acknowledging the principles there stated, the Secretary and the Central Coast Local Health District opposed the extension of time on the basis that the applicant did not have a fairly arguable case.

4. [61]

   Importantly, in Tomko v Palasty (No 2) at [14], Hodgson JA (Ipp JA agreeing), while agreeing with Basten JA, added:

5. [62]

   As Campbell JA observed in Blackmore v Browne; Kara Kar Holdings Pty Ltd v Blackmore [2011] NSWCA 114 at [19], the statement of Basten JA at [55] in Tomko should be read with the additional remarks of Hodgson JA (Ipp JA agreeing) in mind.

6. [63]

   In the present case, the length of the delay in seeking leave to appeal – 29 months – is gross and there is simply no evidence at all by the applicant explaining the delay in bringing this application. The applicant has not demonstrated that her case is fairly arguable let alone has she demonstrated that her case has more substantial merit warranting a grant of leave: Tomko v Palasty (No 2) at [14]. An extension of time should be refused for the reasons that follow.

7. [64]

   The applicant’s summary of argument did not identify any error in the decision of Judge Gibb dismissing the damages proceedings. In oral argument, the applicant submitted that the dismissal order involved a denial of procedural fairness because the applicant was unaware how to draft a pleading, she was uninformed, she was unrepresented and she had done the best without the benefit of legal advice. None of these matters demonstrate error in Judge Gibb’s discretionary decision to dismiss the proceedings on the ground that the statement of claim did not plead a reasonable cause of action.

8. [65]

   Insofar as the applicant seeks to challenge the indemnity costs order, applications for leave to appeal from the exercise of a discretionary judgment on a matter of practice and procedure require particular caution. As this Court observed in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5], discretionary decisions on questions of practice and procedure “engage the strictures against over-ready appellate interference and the correlative need for ‘added restraint’ associated with House v The King (1936) 55 CLR 499 with the consequence that a ‘heavy burden’ lies on an applicant seeking leave to appeal from a discretionary judgment on a question of practice or procedure” (citations omitted). No error of the House v The King type has been identified with respect to the special costs order made by Judge Gibb.

9. [66]

   The application for an extension of time to seek leave to appeal should be refused.

Grant of leave

1. [67]

   Further, and in any event, even if an extension of time was granted, leave to appeal should be refused. The proposed appeal does not raise any question of principle or matter of public importance. Nor does it have sufficient prospects to warrant a grant of leave because the applicant has not demonstrated any injustice which is reasonably clear, in the sense of going beyond a merely arguable error.

Costs

1. [68]

   The Secretary did not seek costs of the notice of appeal or the summons seeking leave to appeal which were both filed on 17 September 2018. Subject to one matter, there is no reason why the costs of the other applications should not follow the event: UCPR, r 42.1.

2. [69]

   The qualification relates to the judicial review proceedings, in respect of which the Secretary should pay not only the applicant’s costs, but also the costs of Michelle, Dora, SE and YE. This is because, the Secretary, acting reasonably and in accordance with the dictates of the just, quick and cheap determination of the real issues in the proceedings (Civil Procedure Act 2005 (NSW), s 56), should have immediately drawn to Judge Olsson’s attention after the order was made dismissing the summons, that such order was wider than the orders sought. Had the Secretary taken this step, as he should have, it is likely that Judge Olsson would have varied the terms of the order which she had made, so as to permit the applicant to proceed with her s 91 appeal, relating to the child, Michelle.

Orders

1. [70]

   I propose the following orders:

2. [71]

   LEEMING JA: I agree with Gleeson JA.