FEDERAL COURT OF AUSTRALIA

SZQRC v Minister for Immigration and Citizenship [2012] FCA 851

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        The appellant appeals against a decision of Nicholls FM made on 20 April 2012. His Honour dismissed the appellant’s application for review under s 476 of the Migration Act 1958 (Cth) (the Act), seeking review of a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal affirmed a decision of the Minister’s delegate refusing the appellant a protection visa.

Background Matters

2        The appellant is a citizen of the People’s Republic of China (China). She came to Australia on 6 June 2009 on a student guardian visa, accompanying her son.

3        The appellant’s visa was due to expire on 31 December 2010. Shortly before that date (and after living in Australia for almost 18 months), she lodged an application for a protection visa. In support of her visa application the appellant forwarded a written statement, which included the following claims:

    she was a traditional Chinese medical practitioner, having graduated from Guangming University of Traditional Chinese Medicine and commenced an internship at Jilin Railway Hospital in China in July 1989, where she then worked for 15 years;

    in December 2001 she believed that she witnessed “an illegal operation” being performed at the hospital. At that time she was not aware of the type of operation performed, but she registered her concerns in a letter to the head of the hospital. She was subsequently transferred to the “service department” of the hospital, where her assignment was to raise rabbits used for experiments. She remained in that position for two years;

    in 2003 the appellant lodged a complaint with a superior at another hospital (where she thought she would get justice), but instead she says that she was “expelled”;

    she raised her complaint in August 2004 at a government office. She claims that the next day she was detained by police and imprisoned and beaten. It was at this point, that, following discussions with a cellmate who was a Falun Gong practitioner, she became aware for the first time of what she had observed at the hospital back in 2001, which she says was an illegal transplant of an organ from a Falun Gong practitioner;

    after being released from detention three months later, she was required to report regularly to the police and she says that she was unable to open a new clinic and also that her son was subject to discrimination by his school teachers; and

    in November 2008, having obtained a passport by paying bribes, she left China with her son, after obtaining the relevant Australian visa documents with the help of an agent.

4        The Minister’s delegate decided on 24 March 2011 to refuse to grant a protection visa to the appellant. The delegate found the appellant not to be a witness of truth and that she had not provided a plausible or credible account of her circumstances in China. She also found that the appellant’s claims were vague, inconsistent and lacked credible detail and that her evidence was contradictory. The delegate also pointed to the appellant’s 18 months delay in applying for a protection visa after her arrival in Australia as being inconsistent with her claims to hold a genuine and significant fear for her life and safety in China.

5        On appeal to the Tribunal, the appellant attended and participated in a hearing before the Tribunal on 19 July 2011, assisted by an interpreter in the Mandarin language. On 18 August 2011, the Tribunal affirmed the decision of the Minister’s delegate. The Tribunal provided reasons for its decision. It will be necessary to refer to the Tribunal’s reasons in a little more detail later, but it is sufficient for this introductory purpose to note the following relevant findings by the Tribunal. The Tribunal found the appellant’s evidence to be “unreliable” and “vague and lacking in detail”. The appellant was found not to be a credible witness. The Tribunal rejected her claims that she was a traditional Chinese medical practitioner and that she had worked for 15 years at the Jilin Railway Hospital. Because of the Tribunal’s adverse credibility findings, it gave little weight to a document provided by the appellant which was directed to establishing her education qualifications. The Tribunal rejected each of the appellant’s claims in support of her application, finding that the appellant was not a truthful or credible witness and, therefore, her factual account of claimed events was not accepted. Like the Minister’s delegate, the Tribunal also relied upon the appellant’s delay before seeking a protection visa as being inconsistent with a genuine fear of persecution.

6        As noted above, the appellant then sought judicial review in the Federal Magistrates Court. She raised the following three unparticularised grounds of review:

1.    The Second Respondent has ignored relevant considerations in making the decision.

2.    The Second Respondent acted in breach of the rules of procedural fairness.

3.    The Second Respondent had bias against me and failed to consider my claims.

7        In those proceedings, the appellant relied on an affidavit which attached both a Chinese transcript of the Tribunal hearing, as well as an English version. There was no evidence that either version had been prepared by a qualified independent expert interpreter or translator. The Federal Magistrate refused to accept the Chinese version into evidence, it being written in Mandarin. The English version was admitted into evidence to enable the appellant to argue her case even though the Federal Magistrate pointed out that it “falls short of what could assist the Court in relation to what was said at the hearing”.

8        The Federal Magistrate also had before him a transcript of the Tribunal hearing prepared by Auscript.

9        The Federal Magistrate’s reasons contain a lengthy summary of the oral submissions made to the Court by the appellant (who represented herself). After considering those oral submissions, the Federal Magistrate concluded that he was unable to see any jurisdictional error in the Tribunal’s decision arising from the appellant’s oral submissions. The Federal Magistrate then dealt with the individual grounds set out in the judicial review application, together with various complaints set out in the appellant’s written submissions. Those complaints concern:

(a)    the attitude of the Tribunal member and certain questions concerning “moxibustion”;

(b)    the “five elements” of traditional Chinese medicine;

(c)    documents concerning the appellant’s medical qualifications; and

(d)    three matters which occurred at the Tribunal hearing.

10        The first of the appellant’s complaints related to the attitude of the Tribunal member who heard her review application and also to various matters surrounding the Tribunal’s questioning of the appellant in respect of the appellant’s knowledge of the meaning of the term “moxibustion” (which apparently is a traditional Chinese medicine therapy using moxa or mugwort herb and is said to play an important role in such medicine).

11        The Federal Magistrate understood the first aspect of this complaint concerning the Tribunal member’s attitude to relate to the appellant’s claim that the Tribunal member looked “very tired” and “cough (sic) a lot” during the hearing. This part of the complaint was rejected by his Honour on the basis that there was nothing in the material before the Court to suggest that the appellant had been denied a fair hearing because of any indisposition on the part of the Tribunal member.

12        The second aspect of this particular complaint related to an exchange between the Tribunal member and the appellant after the member asked the appellant the following question:

Can you explain what moxibustion is?

13        The appellant was unable to answer the question. In the Federal Magistrates Court, the appellant contended that her inability to answer the question was because the interpreter was unable to translate the English word “moxibustion” into Chinese and also because of the appellant’s limitations with English.

14        Nicholls FM found that this aspect of the appellant’s first complaint did not involve any jurisdictional error. That was primarily because the issue of moxibustion was not relied upon by the Tribunal in its analysis of the appellant’s claims. Nor did it form part of the Tribunal’s reasons in reaching its adverse finding that the appellant was not a practitioner of traditional Chinese medicine. His Honour concluded that the appellant’s complaint on this matter did not involve any failure by the Tribunal to take into account a relevant consideration (ground 1 in the judicial review application), nor did it amount to procedural unfairness (ground 2 in the judicial review application) (see [64]-[67] of Nicholls FM’s reasons).

15        At this point the Federal Magistrate saw it convenient to then address the appellant’s third ground of judicial review, namely the claim that the Tribunal was biased and failed to consider the appellant’s claims. In [68] of his reasons, Nicholls FM stated that he considered that the relevant tests for bias, and the apprehension of bias, were well settled. Instead of setting out at this point of his judgment what his Honour understood to be the terms of those tests, his Honour made reference to a series of cases which deal with the topic, including Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] and [127] and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. Then in [69] of his reasons, Nicholls FM stated his conclusion on the appellant’s claims of actual and apprehended bias in the following terms:

It cannot be said on a plain reading of either transcript of the hearing that the Tribunal failed to bring, or would be perceived by a well-informed lay observer to have failed to bring, an impartial mind to these proceedings.

16        Accordingly, Nicholls FM rejected the appellant’s claims of both actual and apprehended bias. On one view, his Honour’s conclusion appears to misstate the relevant test for apprehended bias because his Honour uses the phrase “would be”, whereas the proper test is now generally expressed in terms of the language of “might”. Whether this gives rise to an appellable error on the part of the Federal Magistrate is a matter to which I will return later in these reasons for judgment.

17        The appellant’s second complaint related to an exchange between the Tribunal member and the appellant, as recorded in the transcript, regarding the Tribunal’s request that the appellant explain the theory of the “five elements” in the context of Chinese traditional medicine. The appellant complained that the Tribunal member’s question revealed an incorrect understanding on the member’s part of the “five elements”. She argued that the Tribunal member must have relied on incorrect information or relied on only one view of many of the constituent parts of the elements of traditional Chinese medicine.

18        While accepting that this matter was one of several matters relied upon by the Tribunal in reaching its ultimate conclusion that the appellant did not demonstrate relevant knowledge of traditional Chinese medicine as would be expected of someone claiming to have her qualifications and experience, Nicholls FM found that the appellant’s complaint did not involve any jurisdictional error for the following two reasons:

(a)    even if the Tribunal’s approach demonstrated an incorrect understanding of the “five elements” this was only one element of many elements underpinning the Tribunal’s ultimate conclusion that the appellant’s knowledge of traditional Chinese medicine was “limited” and not commensurate with her claimed years of experience; and

(b)    in any event, even if there were some factual error in this aspect of the Tribunal’s findings, that would not of itself, and on its own, be sufficient to constitute a jurisdictional error.

19        The appellant’s third complaint was that the Tribunal did not ask to inspect documents which she had brought to the hearing and which she said were relevant to her claimed qualifications as a practitioner in traditional Chinese medicine.

20        She complained that she had with her a graduation certificate from a particular University, but said that the Tribunal never asked to see it. The Federal Magistrate rejected this argument on the basis that it was not part of the Tribunal’s role to make out the appellant’s case for her and that, in any event, a copy of the graduation certificate had been included in the materials which were before the Tribunal. The appellant also complained that the Tribunal did not ask to inspect a copy of her internship certificate, but his Honour found that this did not present a jurisdictional error in circumstances where the Tribunal did not even know of its existence.

21        The appellant’s fourth complaint related to various aspects of the Tribunal hearing. In particular, the appellant complained that:

(a)    the interpreter has incorrectly interpreted the appellant’s answer concerning her knowledge of the classifications of herbal medicines;

(b)    the appellant asserted that the Tribunal member “didn’t have a good impression of me”; and

(c)    the appellant attempted to give evidence in the Federal Magistrates Court as to her years of practice of Chinese medicine in China and to explain why some of her answers to questions at the Tribunal hearing may have been deficient.

22        The Federal Magistrate dealt with each of those three issues and reached the following conclusions. As to the first, his Honour found that no jurisdictional error was involved even if there was a deficiency in the interpretation because the Tribunal’s conclusion regarding the appellant’s limited basic knowledge of traditional Chinese medicine was amply supported by other independent bases which were not challenged by the appellant. In other words any error in interpretation as alleged by the appellant was not a material error. His Honour added that, in any event, this complaint should fail because there was no probative evidence before the Court to support the appellant’s claims of incorrect interpretation.

23        As to the second aspect of the appellant’s complaint (namely that the Tribunal member did not have a good impression of her), his Honour assumed that the appellant was referring to the Tribunal’s expression of its concerns about the credibility of her evidence. His Honour found that bias, or the apprehension of bias, was not made out simply because the Tribunal was fulfilling its legal obligations of putting the appellant on notice of the issue that ultimately disposed of the review and he referred to the High Court’s decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.

24        As to the third aspect of this complaint, the Federal Magistrate ruled that no jurisdictional error was involved. Rather, the appellant was seeking to invite the Court to engage in an impermissible merits review.

25        Accordingly all three matters were rejected.

The appeal

26        The appellant’s notice of appeal contains the following three grounds of appeal:

1.    The Second Respondent had bias against me and failed to consider my claims.

2.    The Second Respondent has ignored relevant considerations in making the decision.

3.    The Second Respondent failed to give the Applicant a meaningful opportunity to present arguments in support of her claims.

Particulars

I claimed to have been a traditional medicine practitioner in China, which the Tribunal did not believe. In testing my knowledge of the subject at the hearing the Tribunal used an interpreter who was not competent to translate the terminology involved in the particular subject matter, resulting in the Tribunal concluding that my knowledge was limited and confused.

27        The notice of appeal then contains eight further paragraphs which set out material in the nature of submissions in support of the appellant’s appeal. It is evident that this material has been copied from a document entitled “Claim Statement” which was an annexure to an affidavit filed by the appellant in the Federal Magistrates Court proceedings. The Claim Statement set out various complaints by the appellant concerning the Tribunal’s decision. The material is in the nature of written submissions in support of the appellant’s case and I have treated it accordingly. The appellant confirmed at the hearing before me that the submissions in her notice of appeal were all directed to the three grounds of appeal in her notice of appeal. The appellant did not file any other written submissions in support of her appeal, but she made some brief oral submissions.

28        The Minister filed and served written submissions and was represented at the hearing by Ms Stone, a solicitor.

Consideration

29        I shall now deal in turn with each of the appellant’s three grounds of appeal, having regard to the matters set out in paragraph 27 above as to the relationship between those grounds of appeal and the appellant’s written and oral submissions. I should also state at the outset that, perhaps not surprisingly as the appellant was unrepresented, she gave the impression of not understanding the difference between the Tribunal’s review jurisdiction and the more limited scope of judicial review and subsequent appeal proceedings to this Court.

Bias and failure to consider appellant’s claims

30        Reference was made in paragraph 15 above to how Nicholls FM dealt with the appellant’s claims of bias or apprehended bias. Attention was drawn to the terms in which his Honour expressed his conclusion as to why the appellant’s arguments should be rejected. In my view, no appellable error has been established in respect of his Honour’s finding of fact that the appellant failed to establish actual bias. I respectfully agree with that finding.

31        Additional issues arise in respect of his Honour’s rejection of the appellant’s claim of apprehended bias. The language used by his Honour suggests that he may have proceeded on the basis that the relevant test of apprehended bias is appropriately expressed in the language of “would”, rather then “might”. But for reasons which I now provide, I do not consider that his Honour has committed an appellable error in respect of this matter.

32        It is now well established in Australian law that the test for apprehended bias (in respect of both judicial and non-judicial decision-makers) is to be expressed in terms of “might”. That is reflected, for example, in the following passage from the leading High Court decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge… the governing principle is that, subject to qualifications relating to waiver... or necessity…, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide (emphasis added).

33        The same test applies to non-judicial decision-makers. As Kirby J observed in Jia Legeng at [111]:

It is enough to show that, “in all the circumstances the parties or the public might entertain a reasonable apprehension that [the decision-maker] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it” (original emphasis).

34        Although the test is more accurately expressed in terms of “might” and not “would”, the question whether or not an appellable error has occurred requires the matter to be approached as one of substance and not merely form. As the Full Court said in John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221 at [34], reasons for judgment need to be read as a whole with a view to determining whether or not the correct test was fully understood and properly applied. Such an approach is also consistent with the following observations of the Full Court in Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [27]-[28]:

The applicant challenged his Honour’s formulation of the test for apprehended bias. In this context we note that, although the test for apprehended bias is ordinarily the same wherever it arises, the precise language used in applying the test has frequently varied depending on the context in which it falls to be applied: compare Laws v ABT at 99-100; Re JRL at 352; Ebner at 344 [6]; and Re Polites; Ex parte the Hoyts Corporation Pty Ltd (1991) 173 CLR 78 (‘Re Polites’) at 85-7 and 90.

It is true that the use of the word "must" in the statement of the test in his Honour’s reasons for judgment indicates a degree of certainty that is higher than the threshold identified in Ebner. In Ebner at 344 [6], the use of the word "might" in the first limb of the test (as well as the second) connotes the lesser possibility than the word "must". It is, however, important to focus on his Honour’s application of the test, rather than overemphasize possible semantic deficiencies: compare McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 at 526 [111]-[114] per Basten JA. Further, as counsel for ACCC noted, the "double might" test in Ebner is not inconsistent with the prejudgment "incapable of alteration test" in Jia Legeng. That is, the reasonable apprehension that "a fair-minded lay observer might" have is that the mind of the judge might be "incapable of alteration": see [25] above.

35        In my opinion, despite what appears to be some looseness in the language used by the Nicholls FM in [69] of his reasons for judgment, his Honour correctly understood and applied the test for apprehended bias. That is reflected in his findings set out in [104] and [105] of his reasons for judgment. In my view, his Honour was correct to conclude that bias or apprehended bias was not established simply because the Tribunal put various questions to the appellant and invited her response on issues which were adverse to her and upon which the case would ultimately be decided. Furthermore, Nicholls FM made a specific finding in [105] in the following terms:

There is nothing in the transcripts of the hearing, or elsewhere, to show, or even suggest, that the Tribunal did not bring an impartial mind to these proceedings, or it was not open to persuasion (emphasis added).

36        In my opinion, this extract from his Honour’s judgment indicates that his Honour appreciated that the relevant test of apprehended bias was one which had to be addressed in terms of possibility, not probability, consistently with the High Court’s decision in Ebner at [7]. Furthermore, his Honour’s reference to the concept of the Tribunal being “open to persuasion” is consistent with the terminology used in Jia Legeng at [71]-[72] per Gleeson CJ and Gummow J. Their Honours described the species of apprehended bias involving prejudgment as “[t]he state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (to similar effect, see Cabcharge Australia Ltd at [25]).

37        Accordingly, for all these reasons, I find that no appellable error has been demonstrated in respect of this aspect of Nicholls FM’s reasons for judgment.

38        The appellant was unable to point to any other aspect of her case or claims which was not addressed by Nicholls FM.

39        My findings above are probably sufficient to dispose of the appellant’s first ground of appeal as set out in her notice of appeal. For completeness, however, I shall proceed to deal with the 8 paragraphs of the written submissions included in the appellant’s notice of appeal. I note that the written submissions filed on behalf of the first respondent did not raise any objection to this aspect of the form of the notice of appeal and the Minister relied on written submissions filed in response to the appellant’s written submissions.

40        First, the appellant complains that there were deficiencies in the interpreting at the Tribunal hearing. The appellant gave an example of the interpreter being unable to interpret the appellant’s response to a question about the classifications of Chinese medicines.

41        This matter was argued before Nicholls FM, who rejected it for reasons which I have summarised in paragraph 22 above. In my view, the appellant has failed to establish any error in his Honour’s reasoning in rejecting her argument. I respectfully agree with his Honour’s reasons. The Tribunal’s reasons for decision disclose many other matters relied on by the Tribunal (and which were not challenged by the appellant in her judicial review proceedings) in support of its conclusion that the appellant had only a limited knowledge of traditional Chinese medicine.

42        The appellant’s next complaint, which was also argued below, relates to the exchange which occurred at the hearing in respect of the Tribunal member’s question whether the appellant knew the word “moxibustion”. Nicholls FM rejected this complaint for reasons which I have summarised in paragraph 14 above. In my view, the appellant has failed to establish any error in that reasoning and I respectfully agree with his Honour’s reasons for rejecting the argument.

43        The appellant’s next complaint relates to the Tribunal’s questioning concerning the “five elements” in traditional Chinese medicine. As Nicholls FM explained in rejecting this argument, the essence of the complaint is that the Tribunal allegedly made an incorrect finding of fact. As Nicholls FM reasoned, a factual error on the Tribunal’s part would not constitute a jurisdictional error and, in any event, his Honour found that no factual error had been established. I agree with that conclusion and also with his Honour’s reasons for reaching it. The appellant failed to establish any error in his Honour’s reasoning and I reject her complaint.

44        The appellant’s next complaint relates to the documents which she said she brought with her to the Tribunal hearing and which were not inspected by the Tribunal. This argument was considered and also rejected by Nicholls FM for reasons which I have summarised in paragraph 20 above. In my view, the appellant has failed to establish any appellable error in respect of this aspect of his Honour’s reasoning. In particular, I agree with his Honour’s rejection of the appellant’s argument for the following reasons.

45        First, the transcript of the Tribunal hearing records the appellant’s following response to the Tribunal member’s question asking where she had studied: “Guangming Traditional Chinese Medicine Correspondence University. I have a graduate certificate”. There is a degree of ambiguity in the second sentence of that extract. The ambiguity concerns whether the appellant was saying that she had the document with her and wished to present it or, rather, whether she was simply saying that she had received a graduate certificate from that University. Secondly, that ambiguity did not have to be resolved one way or the other because a copy of the appellant’s graduate certificate from that University was included in the materials which were before the Tribunal as the appellant had provided a copy to the Department. The Tribunal considered this document at [103] of its reasons for decision and found that the document should be given little weight because of the Tribunal’s adverse findings concerning the appellant’s credibility. Nicholls FM found at [91] that the Tribunal had not failed to consider the graduate certificate and simply gave it little weight. I respectfully agree with Nicholls FM’s reasons for rejecting this complaint by the appellant.

46        Turning now to consider the appellant’s complaint that the Federal Magistrate erred in not upholding her argument that the Tribunal should have inspected her internship certificate, I respectfully agree with Nicholls FM’s finding that no jurisdictional error could arise where the Tribunal failed to inspect a document the existence of which was not drawn to its attention. At the conclusion of the Tribunal’s hearing the transcript records the appellant being asked twice by the Tribunal member whether she wished to add anything more for the Tribunal’s consideration. The appellant could have availed herself of that opportunity but did not do so.

47        The appellant’s final complaint concerns an allegation that the Tribunal member did not have a good impression of the appellant. To the extent that this complaint constitutes an allegation of actual or apprehended bias, I consider that the appellant has failed to establish any appellable error in respect of the Federal Magistrate’s reasoning, which I have dealt with in paragraphs 30 to 36 above. Furthermore, to the extent that this allegation is based on the Tribunal member having put to the appellant for comment various matters which the appellant might regard as being adverse to her, I respectfully agree with the Federal Magistrate that such conduct was consistent with the Tribunal member’s procedural fairness obligations and does not of itself suggest apprehended bias. Indeed, the appellant was put on notice at the commencement of the Tribunal hearing that this might occur. She was told by the Tribunal member:

In the course of the hearing today, there may be information that arises that you – adverse to your case. That is, that goes against you. If this happens, I will raise it with you, not because I’ve made up my mind, but to give you an opportunity to help me make up my mind.

Failure to take into account relevant considerations

48        The appellant’s second ground of appeal, while asserting that the Tribunal “ignored relevant considerations”, fails to specify any particular relevant considerations. Making allowance for the fact that the appellant is self represented, I have approached this matter on the basis that the relevant considerations being relied on are those which are discussed by the appellant in the general particulars provided by her in the notice of appeal (relating as they seemingly do to all three grounds of appeal), as well as to the written submissions included in the notice of appeal which constitute the appellant’s complaints. I have also proceeded on the basis that, despite the wording of the appellant’s three grounds of appeal which are all directed to the Tribunal and not to the Federal Magistrate’s decision, they should be read as referring to alleged errors by the Federal Magistrate in not accepting the appellant’s relevant arguments on those matters.

49        Against that background, the appellant’s putative claim that the Federal Magistrate erred in not finding that the Tribunal had failed to take into account relevant considerations must be rejected. The appellant confirmed at the hearing before me that the relevant considerations relied upon by her were those set out in her written submissions in the notice of appeal. I have summarised above Nicholls FM’s reasons for rejecting each of the complaints advanced by the appellant in those submissions. I have also set out above my reasons for finding that the appellant has failed to demonstrate any appellable error on his Honour’s part on any of those matters. There is no need to repeat those reasons here. The second ground of appeal must be rejected.

Failure to give appellant a meaningful opportunity to present arguments in support of her claims

50        The appellant’s third ground of appeal can be dealt with on the same basis as the second ground of appeal. The appellant’s complaint that she was not given a meaningful opportunity to present arguments in support of her claims is one of the matters raised by her in her complaints. That complaint was dealt with and rejected by Nicholls FM for reasons which I have summarised above and with which I agree. Accordingly, the third ground of appeal must also be rejected.

51        For all these reasons, I order that the appeal be dismissed and the appellant pay the respondents’ costs.

Associate:

Dated:    14 August 2012