FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Black on White Pty Ltd [2004] FCA 363

BANKRUPTCY – trade practices – previous declaration that the third respondent was knowingly concerned in or a party to contraventions of the Trade Practices Act 974 (Cth) by the first respondent – third respondent ordered to pay $14,844.22 – scope of the Federal Court’s power to set aside judgments of the Court – whether the “claims” against the third respondent in respect of which judgments had been given were “matters” provable in his bankruptcy pursuant to s 82(1) of the Bankruptcy Act 1966 (Cth) – whether claims for damages under subss 87(1A) and (1B) of the Trade Practices Act 1974 (Cth) are in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust

Bankruptcy Act 1966 (Cth) s 82

Trade Practices Act 1974 (Cth) subss 87(1A) and (1B), ss 52, 51AB, Part IV

Federal Court Rules, O 35 r 2, O 35 r 7(2)

Taylor v Taylor (1979) 25 ALR 418 referred to

Cameron v Cole (1944) 68 CLR 571 referred to

Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 referred to

Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 referred to

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 referred to

Capital Webbworks Pty Ltd v Adultshop.com.limited (2002) 116 FCR 255 cited

Marks v GIO Australia (1998) 196 CLR 494 cited

Wardley Australia Limited v Western Australia (1992) 175 CLR 514 cited

Australian Competition and Consumer Commission v Kritharas (2000) 105 FCR 444 considered

Australian Competition and Consumer Commission v Top Snack Foods Pty Ltd

(1999) ATPR 41-708 considered

Fielding v Vagrand Pty Ltd (In liq) (1992) 39 FCR 251 referred to

CCA Systems Pty Ltd v Communications & Peripherals (Australia) Pty Ltd (1989) 15 ACLR 720 cited

Reid v Interarch Australia Pty Limited [2000] FCA 1328 cited

Re NIAA Corporation Ltd (in liq) (unreported, Supreme Court, NSW, McLelland CJ, No 4480 of 1994, 2 December 1994) cited

Vagrand Pty Ltd (In liq) v Fielding (1993) 41 FCR 550 cited

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v BLACK ON WHITE PTY LTD (ACN 061 507 248) and OTHERS

No QG 110 of 1997

SPENDER J

BRISBANE

31 MARCH 2004

THE COURT ORDERS THAT:

1.      The relief sought by the notice of motion filed 21 July 2003 is refused. 

2.      By 4 pm Monday 5 April 2004, the applicant on the motion file and serve written submissions as to why costs should not follow the ordinary course, and by 4 pm Thursday 8 April 2004 the respondents file and serve submissions in response.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an amended notice of motion filed on 21 July 2003 by James Nicholas Poteri (“Mr Poteri”), the third respondent in proceedings brought by the Australian Competition and Consumer Commission (“the ACCC”).  Black on White Pty Ltd is the first respondent, Nicki Poteri the second respondent, James Nicholas Poteri the third respondent and Nicholas James Poteri the fourth respondent. 

2                     The amended notice of motion seeks:

‘1.   A Declaration that James Nicholas Poteri is not liable to pay any of the amounts referred to in the orders of the Court dated 4 April 2001, 22 November 2001, 12 June 2002, 22 October 2002 and 24 February 2003;

2.      Alternatively a Declaration that James Nicholas Poteri is not liable to pay some of the amounts referred to in the orders of the Court referred to in paragraph 1;

3.      That the orders referred to in paragraph 1 be set aside pursuant to Order 35 Rules 2 and 7 of the Federal Court Rules and/or pursuant to the inherent jurisdiction of the Court.

            …

5.      That the enforcement proceedings against James Nicholas Poteri be dismissed or permanently stayed;

6.      Such further or other order the Court deems appropriate;

7.      That the respondent AUSTRALIAN COMPETITION AND CONSUMER COMMISSION pay the costs of and incidental to this application/motion.’

3                     The essence of Mr Poteri’s case is that the “claims” against him in respect of which judgments have been given were all “matters” that were provable in his bankruptcy pursuant to subs 82(1) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”).  Mr Poteri became bankrupt on the 22 July 1996 when a joint debtors petition of Mr Poteri and his wife was accepted by the Registrar in Bankruptcy.  Mr Poteri was discharged from his bankruptcy on 25 July 1999.  

4                     In about August 1997, the ACCC commenced legal proceedings against the third respondent and the other respondents in the principal proceedings.  Those proceedings sought declarations that there had been conduct in contravention of the Trade Practices Act 1974   (Cth) (“the Trade Practices Act”) and orders for compensation pursuant to subss 87(1A) and (1B) of the Trade Practices Act. 

5                     On 4 April 2001, I made findings of fact that Black on White Pty Ltd, trading as the “Australian Early Childhood College” was involved in numerous contraventions of the Trade Practices Act, which contraventions were identified by paragraph numbers of those findings.  Some of those contraventions were of ss 52 and 51AB of the Trade Practices Act, and a number of persons paid moneys to the First Respondent in reliance on the representations the making of which constituted the contraventions.

6                     The Court on that day also declared that:

’49. The Third Respondent [that is to say Mr James Nicholas Poteri] was knowingly concerned in or party to the First Respondent’s contraventions of the Act referred to in paragraphs 1, 2, 3, 4, 5, 6, 10, 11, 12, 16, 17, 18, 19, 20, 21, 24, 26, 27, 29, 31, 32, 33, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, and 48 above.’

On that day, the Court ordered:

‘53. … The Third Respondent pay the Applicant’s costs of and incidental to the proceedings, including reserved costs, to be taxed if not agreed.’

7                     On 22 November 2001, pursuant to a notice of motion filed on 15 June 2001, the Court ordered:

’12.   The Third Respondent pay to the Applicant by 4:00 pm on 21 December 2001 an amount, being the aggregate of the sums referred to below, to be distributed to the following persons in the following amounts:

(a)     Beverley Ann Fehlberg in the amount which is the sum of $175.00, $2,780.35 and $1,348.64

(b)     Gricelda Jeakeline Zamora Santos in the amount of the aggregate of $175.00 and $102.15

(c)      Abelina Victoria Romero in the amount of the sum of $175.00 and $101.91

(d)     Mandy Louise McPherson in the sum of $175.00 and $102.58

(e)      Louise Mary McPherson in an amount the sum of $1,216.50 and $554.36

(f)       Helen Lynette Kinloch in an amount the sum of $3,677.00 and $1,614.86

(g)     Debbie Coombes in the amount of the sum of $1,695.00 and $950.87

13.    The Third Respondent pay the Applicant’s costs of and incidental to those parts of the Notice of Motion with respect to which the Court has made those orders.  Costs than otherwise dealt with be reserved.’

The sums ordered on 22 November 2001 to be paid by Mr Poteri to the ACCC totalled $14,844.22. 

8                     Mr Kelleher, counsel for Mr Poteri, submitted that the various representations which were alleged, and in respect of which findings were made, all occurred prior to the date of bankruptcy of Mr Poteri or the date of his discharge from bankruptcy.  It was submitted that the claims against him, in respect of which judgment had been given, were all matters that were provable in his bankruptcy pursuant to s 82 of the Bankruptcy Act, being debts and liabilities, present or future, certain or contingent, to which Mr Poteri was subject at the date of his bankruptcy or to which he became subject before his discharge, by reason of an obligation incurred before the date of his bankruptcy, and therefore, upon his discharge from bankruptcy on 25 July 1999, he was released on all liability for those debts.  It was submitted that therefore the appropriate order to be made is that all orders against him be set aside, including enforcement orders, and there should be a declaration that the third respondent has no liability in the circumstances. 

9                     Mr Poteri relies on O 35 r 2 and O 35 r 7 of the Federal Court Rules and the inherent jurisdiction of the Court as the basis to set aside the judgments of the Court. 

10                  In Taylor v Taylor (1979) 25 ALR 418 the High Court, applying Cameron v Cole (1944) 68 CLR 571 held that ajurisdiction to set aside its orders is inherent in every court unless displaced by statute, and this jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party, but also to the setting aside of a default or ex parte judgment obtained when the absence of the party is due to no fault on his part.

11                  Order 35 rule 2 of the Federal Court Rules provides:

‘The reasons of the Court for any order may, if in written form, be published by being delivered in open Court to an associate or other proper officer.’

12                  Order 35 rule 7 of the Federal Court Rules provides:

‘(1)The Court may vary or set aside a judgment or order before it has been entered.

(2)  The Court, where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where:

(a)     the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order;

(b)     the order was obtained by fraud;

(c)      the order is interlocutory;

(d)     the order is an injunction or for the appointment of a receiver;

(e)      the order does not reflect the intention of the Court; or

(f)       the party in whose favour the order was made consents.

(3)  A clerical mistake in a judgment or order, or an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court.

(4)  Subrule (2) shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order.’

13                  In an affidavit filed 21 July 2003, Mr Poteri says that the reason he was not able to attend the hearings which resulted in the findings and orders made against him requiring him to pay money, included:

‘(a)   The absence of any financial resources to defend my position due to my bankruptcy.  I was not able to engage legal representation.

(b)         The Legal Aid Office not providing me with legal assistance, or representation, on the basis that the matters involved commercial matters which they do not fund.

(c)          My medical state, which became extremely unstable due to the stress and anxiety caused by my bankruptcy, continual pursuit of legal action by the Commonwealth Government on myself, my wife and son, and my unemployment.  …

(d)         Also, the collateral service of court materials at my residence and workplace so that there was not any space for peace, rest or respite.

(e)          The involvement of my wife and son in long drawn out serial collateral court proceedings including that of criminal charges.

(f)           The absence of ongoing employment severely prejudiced by heavy handed and unnecessary actions by the Commonwealth Government.’

That affidavit concluded:

‘The extreme stress anxiety caused by the above actions, the absence of any assistance or representation, and the absence of any financial resources, made it impossible for me to defend the matters brought before the Court, let alone defend them appropriately.’

14                  In my opinion, the discretion to set aside an order pursuant to O 35 r 7(2) of the Federal Court Rules is one that ought to be exercised only in exceptional circumstances, and that generally speaking, the jurisdiction is not to be exercised unless it can be shown that, without fault on the applicant’s part, he or she had not been heard on the relevant question.

15                  In Wentworth v Rogers (No 9) (1987) 8 NSWLR 388, Kirby P, in delivering the judgment of the court, accepted there may be unusual circumstances apart from fraud where a court would set aside or vary a perfected order, but that such power, if it existed, could only be used in the most exceptional of cases.  The Full Court of the Federal Court in Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 said at 552 that the jurisdiction was ‘truly exceptional’ and added:

‘Moreover, generally speaking, the jurisdiction is not to be exercised unless it can be shown that, without fault on the applicant’s part, he or she has not been heard on the relevant question.’

16                  The observations of Sir Anthony Mason in Autodesk Inc v Dyason (No 2) (“Autodesk”) (1993) 176 CLR 300 at 303 are apposite:

‘… it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put.  What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.  The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.’

See also the observations of RD Nicholson J in Capital Webworks Pty Ltd v Adultshop.com.limited (2002) 116 FCR 255 at 259. 

17                  In this case there is an absence of exceptional circumstances.  Lack of financial resources is not an adequate reason for failing to attend personally.  Mr Poteri had notice of all of the proceedings and chose not to appear.  Mr Poteri appears to have held the view that the relevant debts were provable in his bankruptcy since at least 18 January 2002, but this motion was not filed until 20 June 2003, notwithstanding his having been advised by the solicitor for the ACCC by letter of 25 January 2002 that if he believed he was not required to pay the amount because he had been discharged from his bankruptcy, he should apply to the Federal Court to vary or set aside the relevant orders. There was, in addition, other correspondence from the ACCC to Mr Poteri of 29 April 2002 and 25 June 2002 urging compliance with the orders.  The ACCC pursued enforcement proceedings against Mr Poteri, including an enforcement hearing on 22 October 2002. 

18                  Mr Poteri had the right to be heard in respect of the various matters which resulted in the orders made against him, and he declined to do so.  The purpose of the jurisdiction conferred by O 35 r 7, as Mason CJ indicated in Autodesk at 303, ‘is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases’.

19                  In the course of discussion during the hearing of Mr Poteri’s motion Mr Kelleher, for Mr Poteri, made it clear that Mr Poteri was not challenging the findings of the Court that he was knowingly concerned in the contraventions specified in par 49 of the Court’s orders of 4 April 2001, which has been set out earlier.

20                  The disposition of the motion thus really turns on the operation of s 82 of the Bankruptcy Act to the sums that the Court ordered to be paid by Mr Poteri to the ACCC. 

21                  Section 82 of the Bankruptcy Act relevantly provides:

‘(1)   Subject to this Division, all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy.

…

(2)     Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust are not provable in bankruptcy.

(3)     Subject to subsection (3A), penalties or fines imposed by a court in respect of an offence against a law, whether a law of the Commonwealth or not, are not provable in bankruptcy.

…

(3B)  A debt is not provable in a bankruptcy in so far as the debt consists of interest accruing, in respect of a period commencing on or after the date of the bankruptcy, on a debt that is provable in the bankruptcy.

…

(8)     In this section, liability includes:

(a)     compensation for work or labour done;

(b)     an obligation or possible obligation to pay money or money’s worth on the breach of an express or implied covenant, contract, agreement or undertaking, whether or not the breach occurs, is likely to occur or is capable of occurring, before the discharge of the bankrupt; and

(c)      an express or implied engagement, agreement or undertaking to pay, or capable of resulting in the payment of, money or money’s worth, whether the payment is:

(i)      in respect of amount – fixed or unliquidated;

(ii)     in respect of time – present or future, or certain or dependent on a contingency; or

(iii)    in respect of the manner of valuation – capable of being ascertained by fixed rules or only as a matter of opinion.’

22                  In my opinion, the amounts the Court ordered Mr Poteri to pay on 22 November 2001 are not debts that were provable in his bankruptcy. 

23                  Those amounts were ordered to be paid by Mr Poteri pursuant to subss 87(1A) and (1B) of the Trade Practices Act.  Those subsections provide:

‘(1A)Without limiting the generality of section 80, the Court may:

(a)     on the application of a person who has suffered, or is likely to suffer, loss or damage by conduct of another person that was engaged in contravention of Part IVA, IVB, V or VC; or

(b)     on the application of the Commission in accordance with subsection (1B) on behalf of one or more persons who have suffered, or who are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of Part IV (other than section 45D or 45E), IVA, IVB, V or VC;

make such order or orders as the Court thinks appropriate against the person who engaged in the conduct or a person who was involved in the contravention (including all or any of the orders mentioned in subsection (2)) if the Court considers that the order or orders concerned will:

(c)      compensate the person who made the application, or the person or any of the persons on whose behalf the application was made, in whole or in part for the loss or damage; or

(d)     prevent or reduce the loss or damage suffered, or likely to be suffered, by such a person.’

(1B)  The Commission may make an application under paragraph (1A)(b) on behalf of one or more persons identified in the application who:

(a)     have suffered, or are likely to suffer, loss or damage by conduct of another person that was engaged in in contravention of Part IV (other than section 45D or 45E), IVA, IVB, V or VC; and

(b)     have, before the application is made, consented in writing to the making of the application.’

24                  The amounts ordered to be paid in this case were compensatory in nature.  The quantum is the amount which the Court considered would compensate the person, in whole or in part, for the loss or damage suffered by those persons by conduct of a person engaged in contravention of Part IV of the Trade Practices Act.  The fact that the Court has power to make orders under s 87 of the Trade Practices Act against a person, like Mr Poteri, who was not the contravenor but was involved in contraventions of Part IV of the Trade Practices Act, draws attention to the fact that the power of the Court is not dependent on the person on whose behalf compensation is ordered having a right of action against the person ordered to pay the amount by way of compensation.

25                  In my opinion, orders for the payment of money under s 87 of the Trade Practices Act are not in any sense derivative: they do not depend, particularly against the contravenor, on whether the person who suffers loss or damage would have a cause of action against the person ordered to pay compensation.  In many instances, there would be some cause of action, perhaps under the Trade Practices Act, perhaps for money used and received on a total failure of consideration, or perhaps an action for damages for breach of contract.  The power to make the order for compensation does not depend on the existence of any such cause of action, but on the establishment of the elements of the subsections.  It is not irrelevant to note that s 87 of the Trade Practices Act is not confined to cases where loss or damage has been sustained: Marks v GIO Australia Holdings Limited (1998) 196 CLR 494 at 515 per McHugh, Hayne and Callinan JJ, and Wardley Australia Limited v The State of Western Australia (1992) 175 CLR 514 at 527 per Mason CJ, Dawson, Gaudron and McHugh JJ.

26                  Katz J in Australian Competition and Consumer Commission v Kritharas (2000) 105 FCR 444 (“Kritharas”) came to the conclusion that an order for compensation made pursuant to subs 87(1B) of the Trade Practices Act is not a provable debt and falls within the ambit of subs 82(2) of the Bankruptcy Act. 

27                  In Australian Competition and Consumer Commission v Top Snack Foods Pty Ltd (1999) ATPR 41-708, Tamberlin J had declared that three corporate respondents had contravened both ss 52 and 59 of the Trade Practices Act in certain respects, and had declared that Mr Kritharas had been knowingly concerned in those contraventions.  Amongst other orders, Tamberlin J had ordered that Mr Kritharas was liable pursuant to subss 87(1A) and (1B) of the Trade Practices Act, to pay to the ACCC $406,129.79 on behalf of nine named debtors, and ordered that there be judgment for the ACCC against the debtor in the sum of $406,129.79.

28                  Katz J in Kritharas said, at par 24:

‘… there exists a formidable body of authority for including within s 82(2) of the [Bankruptcy] Act claims for damages under s 82 of the TPA [Trade Practices Act] for contravention of s 52(1) of the TPA.’

His Honour had referred to Fielding v Vagrand Pty Ltd (In liq) (1992) 39 FCR 251 (“Fielding”), CCA Systems Pty Ltd v Communications & Peripherals (Australia) Pty Ltd (1989) 15 ACLR 720 (“CCA Systems”), Reid v Interarch Australia Pty Limited [2000] FCA 1328 (“Reid”) and Re NIAA Corporation Ltd (In liq) (unreported, Supreme Court, NSW, McLelland CJ, No 4480 of 1994, 2 December 1994)  (“NIAA”).

29                  His Honour’s view in respect of the claims in Kritharas were expressed at par 28 of his judgment:

‘In my view, those claims [made by the ACCC against Kritharas] were no less demands in the nature of damages than were the claims in CCA Systems; Fielding; NIAA and Reid, all of which claims were necessarily implicitly accepted in those cases to be demands in the nature of damages, rather than demands for statutory debts.  In particular (although this was a matter expressly not relied on before me by the debtor), I can see no reason to grant to a claim seeking damages under s 82 of the TPA the status of a demand in the nature of damages, while denying that status to a claim by the ACCC seeking compensation on behalf of other persons alleged to have suffered loss under s 87 of the TPA.’

30                  In my judgment, a claim for the payment of money as compensation pursuant to subs 87(1B) or, for that matter, pursuant to subs 87(1A) of the Trade Practices Act, is not a claim for a liquidated amount.  Equally clearly, in my opinion, a claim for damages pursuant to s 82 of the Trade Practices Act is not a claim for a liquidated amount.  In my judgment, claims for damages for contraventions of s 52 under s 82 of the Trade Practices Act, and claims for compensation pursuant to subs 87(1B) of the Trade Practices Act are claims in the nature of unliquidated  damages that arise otherwise than by reason of a contract, promise or breach of trust, within s 82 of the Bankruptcy Act, and therefore are not provable in Mr Poteri’s bankruptcy.

31                  The submission on behalf of the respondent is that I should decline to follow Kritharas.  It was submitted that Katz J had said, in effect, that a claim for compensation under s 87 of the Trade Practices Act is of the same status as a claim for damages under s 82 of the Trade Practices Act, and that therefore they were in the nature of unliquidated damages.  Some reliance was placed on the judgment of Morling J in Fielding, to which reference has been made. 

32                  It was submitted by Mr Kelleher on Mr Poteri’s behalf that subs 82(2) of the Bankruptcy Act had no application to a claim for compensation under subs 87(1C) of the Trade Practices Act.  However, the decision of Morling J is not to the effect as submitted on behalf of Mr Poteri.  Justice Morling did not hold that subs 82(2) of the Bankruptcy Act had no application to a claim for compensation under subs 87(1C) of the Trade Practices Act.  His Honour held that subs 82(2) of the Bankruptcy Act had no application to claims of the type of relief sought by the claimants in that case under s 87 of the Trade Practices Act.  The claims under s 87 of the Trade Practices Act in that case were to avoid ab initio a contract for the sale of certain units in a unit trust, together with a consequential order for the restitution of the units sold. 

33                  His Honour gave leave to proceed  in respect of the avoidance of the sale contract and the consequential restitution of the units sold which had been sought under s 87 of the Trade Practices Act, because that relief did not fall within subs 82(2) of the Bankruptcy Act.  The decision to grant leave in respect of the relief sought under s 87 of the Trade Practices Act was afterwards the subject of an unsuccessful appeal to the Full Court of the Federal Court: Vagrand Pty Ltd (In liq) v Fielding (1993) 41 FCR 550.  I think it relevant to note that Morling J said in Fielding, at 256:

‘As Professor HAJ Ford observes in his Principles of Company Law, (5^th ed, 1990), par 2220, exclusion of unliquidated claims in tort makes more sense in bankruptcy than in company liquidations because a claimant may pursue the claim against a bankrupt after the bankrupt has been discharged, but a company ceases to exist on dissolution.’

34                  In my judgment, no component of the amount of money claimed by the ACCC against Mr Poteri is a debt or liability, present or future, certain or contingent, to which he was subject at the date of the bankruptcy, or to which he might become subject before his discharge by reason of an obligation incurred before the date of bankruptcy within subs 82(1) of the Bankruptcy Act.  The consequence is that no part of the claim by the ACCC was provable in his bankruptcy, and it follows that he therefore was not released from that claim on his discharge. 

35                  The claim of the ACCC is compensatory in nature, but the quantum of each component was determined only as a consequence of judicial estimation.  The persons who paid over money to Black on White Pty Ltd had no cause of action against Mr Poteri in contract, promise or breach of trust. 

36                  At the time Mr Poteri became bankrupt, there was no liability, actual or contingent, present or future, to which Mr Poteri was exposed as a result of the reliance of persons on representations made by Black on White Pty Ltd to them at times prior to the date of his bankruptcy.  Even if there was, in my opinion his liability created by the orders made under subs 87(1B) of the Trade Practices Act on the 22 November 2001 did not exist prior to that date, and as at the time of his bankruptcy, it cannot be said that there was a liability that was contingent on the Court making the orders on 22 November 2001 that it did.

37                  For these reasons, the relief sought by the notice of motion is refused.  On the question of costs, I direct that by 4 pm Monday 5 April 2004 the applicant on the motion file and serve written submissions as to why costs should not follow the ordinary course, and by 4 pm Thursday 8 April 2004 the respondents file and serve submissions in reply.

Associate:

Dated:              31 March 2004