Pascoe v Edsome Pty Limited & Anor [2008] HCATrans 312 (26 August 2008)

Last Updated: 5 September 2008

[2008] HCATrans 312

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S181 of 2008

B e t w e e n -

JODY PASCOE

Applicant

and

EDSOME PTY LIMITED

First Respondent

SEA COATINGS (AUSTRALIA) PTY LIMITED

Second Respondent

Office of the Registry
Sydney No S182 of 2008

B e t w e e n -

JODY PASCOE

Applicant

and

EDSOME PTY LIMITED

First Respondent

SEA COATINGS (AUSTRALIA) PTY LIMITED

Second Respondent

Applications for special leave to appeal

GUMMOW J
KIRBY J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 AUGUST 2008, AT 11.22 AM

Copyright in the High Court of Australia

__________________

MR A.J. McQUILLEN: May it please the Court, I appear with my learned friend, MR D.W. ELLIOTT for the applicant. (instructed by G H Healey & Co with Graeme R Jenson & Co)

MR M.L.D. EINFELD QC: May it please the Court, I appear with my learned friend, MR J.A. GRACIE for the first respondent. (instructed by Vardanega Roberts)

MR J. HOOKE: May it please the Court, I appear with my learned friend, MR D.R. SULAN for the second respondent. (instructed by Ellison Tillyard Callanan Solicitors)

GUMMOW J: That is the Sea Coatings company, is it?

MR HOOKE: Yes, your Honour.

MR McQUILLEN: Your Honour there has been a late addition of an amended summary of argument and if I may - - -

GUMMOW J: Are the changes marked on the document?

MR McQUILLEN: Probably not, your Honour. It is a totally different document and it is in a completely - - -

GUMMOW J: That is not satisfactory.

MR McQUILLEN: Yes, your Honour.

KIRBY J: Mr McQuillen, these are really hard days. They are days I have often said like the old days in workers compensation where you have to keep 12 cases in your brain.

MR McQUILLEN: Yes, all too familiar, your Honour.

KIRBY J: We need all the help we can get.

MR McQUILLEN: Yes, your Honour.

KIRBY J: Especially because the original application – I do not want to be too critical, you may not have been responsible, but the written case really did not explain what your point was or what you were trying to get from this Court. That is a point taken up by the respondents.

MR McQUILLEN: Yes.

KIRBY J: You do not really identify what the error was in the Court of Appeal.

MR McQUILLEN: Well, since I came into the matter I have attempted to do that by the amended document.

GUMMOW J: Well, what is the point?

MR McQUILLEN: There are two points, your Honour. The first is the application of section 15 of the Act and its deeming provisions so far as section 151D(2) operates to provide leave to commence proceedings against the employer liable to pay compensation. That is the point that the court below dealt with insofar as section 151D(2) resorting to section 15, section 15 being a deeming provision, but secondly, the principles governing the exercise of discretion on the application of section 151D(2) by courts in determining whether or not to grant leave to commence proceedings.

GUMMOW J: What do you say - the point prospectively put against you was that the same principles would apply whether the application is under section 151D of the Workers Compensation Act or section 60C of the Limitation Act.

MR McQUILLEN: What I say in relation to that – what we say is that - - -

GUMMOW J: I am referring to page 61 of the application book.

MR McQUILLEN: What occurs is that section 15, being a deeming provision, is a fiction and requires the last employer in “employment to the nature of which the disease was due”. So that what may happen is that where employment is of such a nature as employment to the nature of which the disease was due may not necessarily provide the plaintiff with a causal nexus sufficient to establish a cause of action at common law. That would then put the onus upon the plaintiff to then establish that ground under section 60C of the Limitation Act and that may well provide an injustice to a plaintiff in circumstances where exposure occurred many, many years ago and the manifestation of symptoms does not occur until many years later whilst in a different employ. Certainly, so far as the authorities stand in the New South Wales Court of Appeal is that section 15 deeming provisions are relevant only for the purposes of determining statutory compensation.

KIRBY J: Now, you have not brought proceedings or you did not bring proceedings against the last employer.

MR McQUILLEN: Yes, Edsome. That is the last employer.

KIRBY J: Does that not have the consequences that Justice Handley said? Is not the scheme of the legislation that Parliament has intended that in disease cases of this kind it is the last of the employers that you should sue? It is a mystery to me why you did not do that, unless you settle with them.

MR McQUILLEN: What happened, your Honour, was that Sea Coatings were the employers in respect of whom - - -

KIRBY J: Yes, but which Sea Coatings? There are two Sea Coatings.

MR McQUILLEN: Two Sea Coatings and they were interchanged - - -

KIRBY J: Do you have both of them before us?

MR McQUILLEN: Yes, your Honour, they were in the statement of claim and they were before the Court of Appeal.

KIRBY J: In your amended summary of argument there are the two Sea Coatings companies and are they the only respondents that you are seeking to - - -

MR McQUILLEN: Yes, your Honour, and Edsome Pty Limited - - -

KIRBY J: Who is Edsome? That is the first - - -

MR McQUILLEN: No, that is the last employer and Sea Coatings (Australia) was the earlier employer between - - -

KIRBY J: What about Sea Coatings Pty Ltd?

MR McQUILLEN: Well, Sea Coatings were a party to the proceedings, but it was only in respect of Sea Coatings (Australia) that the plaintiff was able to identify, as I understand it, was the party against whom he could effectively establish a cause of action by reason of the fact that there had been some change in those two companies, Sea Coatings (Australia) and Sea Coatings Pty Ltd, but certainly - - -

KIRBY J: Now, earlier submissions in the matter and the draft notice of appeal names Edsome Pty Limited as the first respondent, whereas the amended draft notice of appeal seems to have dropped Edsome. Is that correct? The amended notice of appeal which has a filing stamp on it of 26 August, that is this very day, just names Sea Coatings (Australia) and Sea Coatings Pty Limited. Now, we have before us Mr Einfeld and Mr Hooke and their respective juniors for the respondents, but are they appearing for the two Sea Coatings companies, or is Mr Einfeld appearing for Edsome Pty Ltd? I am now in a state of complete confusion.

MR McQUILLEN: Sorry, your Honour, the document I have which has the Court stamp on it shows Jody Pascoe as appellant - in the amended draft notice of appeal that is. Edsome Pty Limited is the first respondent, Sea Coatings - - -

KIRBY J: That is not the document that you handed up.

GUMMOW J: Have a look at this document.

MR McQUILLEN: Yes, one is filed the 25th and the other one is filed the 26th. It appears that what has happened is because there were two orders made by - - -

GUMMOW J: You can hand them back now.

MR McQUILLEN: - - - the Court of Appeal, there were two separate proceedings and that, therefore, in this Court, there being separate orders in respect of each of those proceedings, there is given two separate proceedings here, that is S181 and S182. So that what has happened is that S182 is against Edsome and Sea Coatings (Australia) Pty Limited and Sea Coatings Pty Limited and the document your Honours just handed me is only against Sea Coatings (Australia) and Sea Coatings Pty Limited because that is how it was split up by the Court of Appeal.

KIRBY J: I do not wish to be rude, but you are in this Court, you are jostling with a lot of people who are trying to get our time and unless you can make it easy, straightforward, attractive, then you are not going to get special leave and I am now in a state of complete confusion as to what is the matter before us.

MR McQUILLEN: Well, I do not want your Honour to - - -

KIRBY J: There was a complaint for the second respondent, the Sea Coatings, that they had never been the employer and that you had not established against them an employment. It would seem as though the document of 26 August is trying to cure that and to bring proceedings against the correct Sea Coatings company as an alternative. Is that what happened?

MR McQUILLEN: No, your Honour. What happened was that the allegation by the plaintiff was that he was employed by Sea Coatings at an early time, that is between 1987 and 1990 and then between 1990 and 1999 by Edsome, and there was a period where there was in that period also, Sea Coatings (Australia) Pty Limited. That is referred to by both the associate justice and also by the court below and the only explanation I can give your Honour is that the judgments or orders of the court below were in respect to Sea Coatings – both those companies as appellants and the respondent, Jody Pascoe, and in the other judgment or order was Edsome Pty Limited on its own.

KIRBY J: Where are those orders of the Court of Appeal?

MR McQUILLEN: Yes, 83 and 85, I believe they are, your Honour, 83 at the top right-hand corner.

KIRBY J: I am talking of the joint application book.

GUMMOW J: Page 83.

MR McQUILLEN: Page 83, the top right-hand – and I understand from reading those they were the orders that were made by the Court of Appeal, the court below and I believe the matter going forward to this Court, there is - - -

KIRBY J: Well, if you look at 17, the notice of appeal to the Court of Appeal from the associate justice had the two Sea Coatings companies, they were the appellants. There was Jody Pascoe, which is your client, Edsome Pty Ltd. So all of those were before - and Solitaire. Now, is Solitaire the last employer?

MR McQUILLEN: No, it was an employer with Edsome. The plaintiff had employment with a period - - -

KIRBY J: I thought Solitaire was the last employer.

MR McQUILLEN: No, Solitaire was - with Edsome it was, but no proceedings were pressed against Solitaire.

KIRBY J: Why, if it was the last employer and the Act designs that you recover against the last employer.

MR McQUILLEN: It was not an employer in “employment to the nature of which the disease was due” as I understood it.

KIRBY J: Well, there is of course, an underlying factual question which Justice Handley latched upon as to whether it was due to a disease at all or to a swim.

MR McQUILLEN: Well, your Honour, we say that is a serious error by his Honour. An inference was drawn which was not available - - -

KIRBY J: It is not an error that would normally involve the High Court of Australia. It is a factual question that is determined by the court below.

MR McQUILLEN: His Honour dealt with that matter without any medical evidence. He drew it as an inference that a man, by jumping in the water to save his wallet, developed a serious case of pneumonia and all sorts of other consequential conditions when a man is subject to severe exposure over many years to dangerous substances. It may have been a factor that brought out or manifested what this man’s underlying condition was, but there was no medical evidence to suggest, as I understood it, that the jump into the water had anything to do with his ultimate condition. His Honour just drew that inference on the basis of some knowledge or some other extraneous factor which we do not know.

KIRBY J: Well the other two justices in the Court of Appeal agreed with his Honour.

MR McQUILLEN: I appreciate that, your Honour, and we say that is why we are here because that is one of the errors to which we wish to point.

GUMMOW J: You said there were two.

MR McQUILLEN: There are two points.

GUMMOW J: Two points. One was 151D and section 60C.

MR McQUILLEN: The second point was the principles to be applied in dealing with discretion in granting leave. Your Honour, that is a matter where - what actually happened here was that the plaintiff was shut out in respect of Sea Coatings because of the provisions of section 151D(2) and section 15. In relation to Edsome being the last employer, he was shut out on the basis of prejudice. What his Honour Justice Handley concluded was the prejudicial matters and we say his Honour applied the incorrect principles or test to the circumstance in which a grant of leave - - -

KIEFEL J: But does that second point depend upon you being successful or having an argument on the first point, that is to say that the sufficiency or otherwise of documents which go to the question of prejudice are not themselves sufficient, or that prejudice is not itself sufficient to overcome a stronger case where there is medical evidence to support it?

MR McQUILLEN: Correct. I think I get what your Honour is saying.

KIEFEL J: So the second is reliant upon the first, to an extent? You have to have a case to put forward before you can deal with the prejudice.

MR McQUILLEN: Yes. We had a case, and the associate justice found that, we had a case based on some medical evidence, an expert engineer, so far as dangerous substances, and we had the plaintiff’s evidence as to his history and circumstance in which he worked. The associate justice dealt with the matter in the proper way in that she did find, as we have said in our summary of argument, which was not necessary to say so, that a fair trial was possible.

KIEFEL J: But you really have to deal with Justice Handley’s dealing with the matter. At application book 37 and 38, paragraphs 44 to 47, his Honour refers to the facts from which he says an “inference of causation” which links to the incident in the water giving rise to the pneumonia is available and in respect of which, his Honour says, there is no need for expert medical evidence - his Honour is referring to - because it is a commonsense inference made so because of the simple sequence of events, of having apparently arisen from flu-like symptoms after a dunking in the water with a background of - a family history which suggested a predisposition.

MR McQUILLEN: Well, it so happens that - but it does not overlook the fact that this was a man who had a considerable period of years of exposure to dangerous substances. There was medical evidence - - -

KIEFEL J: I think that the point his Honour makes is that there were no symptoms of this. They occurred after this event and that is why his Honour places importance upon this with respect to causation. You have to really say why that is wrong, not why there is another discussion you might have about it, why is it wrong?

MR McQUILLEN: Can I say it is wrong in this respect. His Honour was wrong to go there because what the associate justice was dealing with and what his Honour Justice Handley was dealing with was an application for leave. What we say the application for leave involves is, provided the applicant for leave makes out a case that he has evidence making out a cause of action, on its face that is sufficient, subject to matters of prejudice, to go forward. Now, what his Honour has done is dealt with this matter as if on a substantive hearing and treated the defendant as having an onus of proof to discharge in establishing evidence to knock the plaintiff out, so to speak, that is the evidentiary onus.

KIEFEL J: It is not a prima facie test. His Honour has to be satisfied in relation to there being a case which could be made out. Are you saying that his Honour should not have dealt with it to the degree to which his Honour did in terms of fact-finding?

MR McQUILLEN: Correct.

KIEFEL J: Then you invite us to fact-find?

MR McQUILLEN: Because the defendants have raised by their defence this section in the substantive action and that is where it should be dealt with. On an application for leave, what the court was considering was, what the associate justice dealt with was, was there material sufficient to go forward. She found so, and what his Honour has done is then gone into evidence countervailing that on an evidentiary onus being discharged by the defendant in which there is no onus cast upon a defendant and the matter should not be dealt with as if on a substantive hearing by way of defence.

Your Honours, just in relation to the questions of leave, there has been – and I know your Honour Justice Gummow in Brisbane South
indicated the question of fair trial – however, there have been decisions of the Court of Appeal, in particular from Chief Justice Gleeson as he then was, in Salido and also in Itek, another decision of the Court of Appeal which is in the papers, that what has to be determined is what is fair and just in the circumstances. That test was not applied by Justice Handley in the Court of Appeal.

KIRBY J: You are getting into the legal argument, but before you get there, there is this factual impediment that Justice Handley has put in your path. Have you said everything you want to say about that?

MR McQUILLEN: Well, only that, your Honour, all I can say on that is that there was evidence available to the plaintiff to establish his case.

KIRBY J: But the essential problem was - sorting out who had been the employer at particular times was difficult and you did not call the plaintiff’s father who was a director of the company, and therefore that left you open to inferences that would be drawn against you that anything he would say would not help you.

MR McQUILLEN: We say that was wrong because what was made out was that the plaintiff’s father was available to give evidence about employment and that is all that was required and the associate justice found so and we say Justice Handley was - - -

KIRBY J: You have to get into the court first, as Justice Kiefel pointed out. You are out of court, you have to get in, and the question is whether or not it was appropriate to say this will all be fixed up, or whether you have to establish a case to get into court because you are out of time.

MR McQUILLEN: My submission is no. What happens is, this is leave. The Court may grant leave on a whole range of factors including the justice of the case. It may be that there is prejudice. But that prejudice would exist in most cases where there is disease of a gradual onset, so that all those factors have to be weighed up. So what this Court, in my respectful submission, needs to look at is the question of what are the principles in determining leave?

GUMMOW J: Yes, Mr Einfeld.

MR EINFELD: May it please the Court. The applicant pleaded a series of injuries acquired over a number of years - - -

KIRBY J: Is there not a little bit of truth in what the applicant has said that Justice Handley is drawing an inference that all of these troubles came from jumping into the water to retrieve a wallet. It sounded a little bit like, as it were, donning his Honour’s medical degree and drawing an inference of his own out of the blue that really struck me, when I read it, as a somewhat disputable sort of inference, unless it was very clearly founded in evidence.

MR EINFELD: It was clearly founded in the evidence, but in the end it obviously raises a question of factual consideration, in our submission not appropriate for this Court’s determination. Your Honours, let me just deal with that question first. There was, as her Honour Justice Kiefel indicated, notwithstanding the assertion of a series of disease-related injuries, or disease-type injuries acquired over a very lengthy period of employment going back to 1990 and earlier, yet the evidence disclosed no symptoms or no visits to any doctor, no complaint of health problems until the day following the swim in the water. It is a pretty powerful single piece of evidence so far as it goes.

As his Honour says at page 38 of the application book, it was as a result of his exposure to the sea that the applicant developed pneumonia and his pulmonary alveolitis. That was (a) his own evidence when cross-examined, and (b) the evidence of his medical practitioners.

KIRBY J: Yes, but sometimes you have things like that which become the last straw and a person goes and sees a doctor and that does not necessarily prove that everything is due to jumping in the water. Sydney Harbour is not all that bad, is it?

MR EINFELD: It does not, but for all that - - -

KIRBY J: I thought we had cleaned it up.

MR EINFELD: For all that it created a significant factual indicium of unlikelihood - - -

KIRBY J: Anyway, you say this is just a factual issue and the High Court of Australia just does not have the time to sort out factual issues unless it is a visitation case.

MR EINFELD: Certainly so. Your Honour, there needs to be added into the spectrum of considerations undertaken by his Honour in relation to this aspect of matters, a fact that those medical practitioners whose extensive reports were tendered by the plaintiff before the associate judge, were, to the extent they expressed a very tentative view, his Honour said weak at best, of a connection between the injuries and work-related conditions, had not been provided with the history of the fall into the water or the diving into the water followed by the onset within 24 hours of the pneumonic condition. There was ample basis for his Honour’s inference, but in any event it remains essentially one of fact.

Your Honours, the application that was sought for leave was made under section 151D of the Act. It is reproduced at the bottom of page 29 of the application book. It permits the bringing of an application by a worker of a claim for common law damages within three years of the onset of the injuries. To the extent those injuries were incurred or received earlier than three years, the leave of the court is required and may be given under that section. The section, needless to say, is expressed in the broadest possible language in contrast with language of the other workers compensation and indeed, even limitation statutes generally throughout Australia, which to the extent they permit the bringing of common law injury claims by injured workers, prescribe a range of considerations, either mandatory or suggestive of considerations. In this case the discretion is of the broadest kind.

There are three particular reasons why we say the argument propounded in the applicant’s most recent statement of argument, namely that section 15 of the Act, which is that applied by Justice Handley, will not, whether correctly or incorrectly applied, affect the outcome of this litigation. Firstly, even if erroneous, all that Justice Handley’s decision applying section 15 did was to fix a date in the case of an ongoing history of disease at a particular specific date, as his Honour said factually, back in 1995.

We know that the applicant needed leave anyway. He applied for the leave. The court below, both at first instance and on appeal, considered the various array of factors which determined whether or not, either in the language of some of the cases, a fair trial could be had or it would be just and reasonable that leave be granted.

Correction of the error, that is, if Justice Handley’s decision were incorrect, and if it be that section 15 had no place in the argument, simply leaves one with a bare leave application under 151D, that is, the question at large, one of fact, having regard to the history and the prejudice by the very lengthy period of time and some other matters I will mention in a moment, it was or was not appropriate for leave to be granted. Our submission is that this Court ought not intervene in a dispute of that kind.

GUMMOW J: I know you are appearing for the Edsome interest. Is what you have just been putting to us as you see it applicable to the Sea Coatings interest as well?

MR EINFELD: Yes. It should be said that in the Sea Coatings’ cases the finding of fact was that there was no employment by either of them so that whichever was the right one, the Court of Appeal concluded that there was no evidence in the absence of the father and in light of the evidence of the gentlemen, Mr Grounds, who produced various employment records, that there had been no employment by either of the Sea Coatings companies so, in effect, they must be out of the position anyway. So far as concerns the third employer, the asserted third historical employer, the question of whether or not leave ought to have been granted, that is whether the error, if it were an error - we submit it was not - but if an error were made by the Court of Appeal it would advance the applicant’s cause in any way would inevitably lead this Court into a consideration of an array of factual matters.

Your Honours should just be aware that the evidence before the associate judge included, for example, the fact that this employee had worked at an array of workplaces, about eight or 10, over a period of time not owned by the employer whose services in effect were contracted out. Not all of the workplaces were any longer visitable or able to be inspected or investigated. There was no history in the pleadings or in the affidavits relied upon below by the applicant as to precisely what substance was used, at precisely what location, or what toxic or hazardous substances might have been produced by any particular one of the products used in particular locations, all of which required investigation.

The very lengthy lapse of time from 1990 to 2007 when the application came to be heard created very marked prejudice to the defendants who were seeking to determine whether and if so what substances may or may not have caused which of the ailments or complaints asserted by the plaintiff and if this Court were to embark upon the question of reconsidering or looking at the question whether the court below erred or did not it would be necessary for a considerable investigation of such factual matters.

In our submission that is not an appropriate course and this case is not an appropriate vehicle within which to test any question as to the applicability of section 15 of the Act or otherwise. I should perhaps add in that respect, that the particular provision of which the application of which the applicant complained, section 15, has no counterparts so far as we can tell in the breadth of its terms and certainly none propounded by the applicant for your Honours in the materials to suggest that the matter sought to be adumbrated by an appeal in this Court would have broad ranging application.

Ultimately, your Honours, whichever be an appropriate test to be applied, whether it be that it be fair and reasonable for leave to be granted, whether it be that a fair trial could be had or where there was sufficient prejudice to prevent it, in any circumstance the court had before it a large body of factual material which would require examination inappropriate for this Court in these proceedings. May it please the Court.

GUMMOW J: Yes, thank you Mr Einfeld. Anything to add, Mr Hooke?

MR HOOKE: Just this, your Honours.

KIRBY J: Do you endorse what Mr Einfeld has just said that there is an added problem in your case that there was a finding by the Court of Appeal that neither of the Sea Coatings companies had been an employer of the applicant?

MR HOOKE: Yes, and that strips away from the case against the Sea Coatings companies the question concerning section 15 because, of course, if they were never employers, the Act never has any application to them. The other matter, your Honours, lest there be any doubt about it, is that the Court of Appeal also upheld the appeals by the Sea Coatings companies on the basis that if the issue of employment was alive, there was actual and material prejudice in relation to the unavailability of the employment records prior to the 1992 financial year.

That assumed particular significance, not only given the unchallenged evidence of Mr Grounds, but also your Honours would have seen that there was some issue cast in relation to the stance taken by Mr Pascoe senior; there was a letter that was apparently authored and which appeared I think at page 11 of the application book, which sought to relieve Solitaire of any liability for the applicant’s injury. In paragraph 35 it was the applicant’s solicitor’s view that that letter was a “set up” designed to do no more than relieve Solitaire and shift the liability – if it existed – home somewhere else.

Your Honours, in relation to Justice Handley’s finding on the medical question – and it does not arise directly in relation to Sea Coating, but would as a notice of contention - - -

GUMMOW J: No, it does not.

MR HOOKE: - - - what Justice Handley found was not as an affirmative fact that the disease or injury was caused by the swim in the harbour, but rather that a tentative view of Dr Crawford, which was the only scintilla as Justice Handley described it, in support of the applicant’s case on causation, was fatally flawed because Dr Crawford did not have a history of the swim in the harbour in August. May it please the Court.

GUMMOW J: Yes Mr McQuillen.

MR McQUILLEN: Thank you. Could I just say in relation to the employment issue, at page 32 of the Court of Appeal Justice Handley’s judgment, his Honour refers to the plaintiff facing:

difficulties in proving his employment with the first and second claimants between 1987 and 1990 –

that is Sea Coatings. But as I understand the evidence from what comes out of the judgment is that the plaintiff was not able to positively prove in this application employment, but that he had left the matter to his father who would be available to give evidence because his father had been involved in the companies.

Can I say this, your Honours, in conclusion. The plaintiff has been shut out, having been granted leave by the Supreme Court initially, in respect of a disease of gradual onset, which is by its nature an insidious disease which operates or proceeds inconspicuously with grave effects. That seems to be a matter that was not taken into account on the matters that should be taken into account in determining whether or not leave should be granted. Thank you, your Honours.

GUMMOW J: Thank you.

These two applications for special leave from the New South Wales Court of Appeal were heard together. The evidence before the Court of Appeal gave rise to an inference on causation to the contrary of that for which the applicant contended. The applicant had not had symptoms before the non-work-related incident, which preceded the onset of his illness. The only evidence which might have supported the applicant’s case was not based upon the correct factual history.

The court’s exercise of discretion on the question of leave to proceed has not been shown to have miscarried. So far as the Sea Coatings respondents are concerned, there is a further added difficulty for the applicant. This is that the Court of Appeal found that neither of the companies in question had been proved to be an employer of the applicant. We are not convinced that this finding was erroneous and that it would be set aside on any appeal to this Court.

Accordingly, each application is dismissed with costs.

AT 12.00 PM THE MATTERS WERE CONCLUDED