Transport Accident Commission v Katanas [2016] HCATrans 286 (18 November 2016)

Last Updated: 22 November 2016

[2016] HCATrans 286

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M95 of 2016

B e t w e e n -

TRANSPORT ACCIDENT COMMISSION

Applicant

and

MARIA KATANAS

Respondent

Application for special leave to appeal

KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 NOVEMBER 2016, AT 11.01 AM

Copyright in the High Court of Australia

MR S.A. O’MEARA, QC: If the Court pleases, I appear with MR S.D. MARTIN for the applicant. (instructed by Hall & Wilcox Lawyers)

MR V.A. MORFUNI, QC: If the Court pleases, I appear with MR M.J. HOOPER for the respondent. (instructed by Zaparas Lawyers)

KIEFEL J: Yes. Yes, Mr O’Meara.

MR O’MEARA: Thank you, your Honours. The significance of the present case is that the decision of the majority below, in our submission, interferes with settled principle in an area of daily significance in common law practice in this State. No person injured in transport or work place accident may commence common law proceedings for damages without first establishing that an injury is serious.

In the present context, in the context of psychiatric injury, that means that it must be severe: it must be more than very considerable in dimension and since 1991 in this State, severity or seriousness has been evaluated by assessing the dimension of the nature, symptoms and consequences of injury, judged against the range of comparable impairments. That has been since settled principle for 25 years in this State and it is so settled that in the present case, in the reasons of the primary judge and in most cases of primary judges considering this issue on a daily basis in the County Court, it simply does not need to be mentioned because it is received wisdom in the area.

The range of comparable impairments is then a question of perspective. It is an organising principle against which the individual case is arrayed. It is there as a spur to consistency and coherence in the disposition of all cases. It is to help all litigants and the court. In the present case the question of the range of comparable cases was central and dispositive so far and important to the disposition of the proceedings so far as the primary judge was concerned because it is among the features referred to in paragraph 82 of his Honour’s reasons and that is there described by his Honour as the real issue.

The range there framed, and it is referred to in paragraph 4 of the reasons of the majority in the Court of Appeal, was apposite or comparable to the present case because the range there from mild anxiety easily treated by treatment, to major psychoses and the like, resulting in hospitalisation, was the present case. It was a case that involved treatment – involved, I am sorry, that involved psychiatric treatment, it involved related medications, there were effect upon recreation, study and enjoyment of life but it was not a case in which there was any occupational effect because in this case the plaintiff had not worked since 1995. It was a non-occupational effect case. The comparable range of cases, in our submission as we said below, was exactly as framed by the judge; mild anxiety to major effect, and it fell somewhere within that range and it was not in error to describe it as in the upper echelon, or to look to the upper echelon of that range because that is the very meaning of severe. The very meaning of severe is where does it fall within that range acknowledging that the effect has to be more than very considerable against - - -

GORDON J: So if you go to page 41 of the application book, in the majority decision of Justice Ashley and Osborn, what is wrong with what starts in the middle of that first paragraph:

In our opinion, the correct thing to do, in each case, is –

and then sets out what I assume are three particular steps? Is that where the error is?

MR O’MEARA: The error is in paragraphs 19, starting at page 40 of the application book and paragraph 20. It starts with reference to “the spectrum” at the top line of page 41 of the application book where their Honours said that what was done by the judge was only one of a number of ways of referring to the spectrum each way of which was incomplete their Honours said. At that point of the judgment their Honours had already identified and accepted that the framing of the spectrum in this case, or the range of comparables in this case, was in error because it was incomplete, it was false and incomplete. That submission had already been accepted at this point.

So what their Honours there did at the top of page 41 was to say, well, any way it can be framed, each of them is incomplete and then it refers to give some examples and then frames, as your Honour Justice Gordon says, from line 20 what is described as “the critical question”. There are two problems with the critical question, in our submission. The first is whilst it refers to the value judgment described by Justices Crockett and Southwell in Humphries v Poljak, it does not refer at all to the range of comparable cases.

GORDON J: Well, it seems to do it in three steps, does it not? The first is the personal circumstances of the claimant, the second is a value judgment and then in 21 is the spectrum.

MR O’MEARA: Your Honour, the three steps we identify are these: the relevant circumstances personal of the claimant – and there is no controversy about that, there is no problem there. The next is the value judgment but that is a value judgment without reference there to the range-

GORDON J: That is my point. Then the spectrum is the third limb.

MR O’MEARA: The spectrum is the third limb but there is no mention of the spectrum. What there is mention of in the last two lines of the paragraph is:

personal experience of cases fallen on one side of the line or the other.

Now, the line is not the spectrum. The line does not even exist because - - -

GORDON J: I think you and I are at cross-purposes. I thought that what was then being dealt with in 20 was a requirement to then consider the spectrum – that is, it goes personal circumstances, the Humphries value judgment and consider the spectrum. Is that not the way the Court of Appeal set it up?

MR O’MEARA: I was reading, with respect your Honour, it is then considered the spectrum we consider the judge set up in the present case. So it is to criticise that spectrum and then to say these propositions illustrate to our mind the limited utility of the spectrum. Now, it is put against us that is the particular spectrum in the – that the judge was talking about. Even if that be right we doubt that to be the case. We think it is a bit wider than that, that it is any spectrum because at that point, of course, it has already been determined that the spectrum framed by the judge was in error.

So how it could be that something in error is of limited utility is a bit hard to follow. But even if it is talking about the particular spectrum, that is a spectrum which at the top of the page their Honours had already said cannot be frame in any way. Every way in which it can be framed is incomplete. So at that point the spectrum and the utility of the spectrum, the way in which it might operate – acknowledging of course that Justice Kaye in dissent, identified the spectrum as very important and cases, legions of cases have identified as important because it is about perspective but in this judgment, the spectrum is said to be, in any way you frame it, incomplete and as you come to it, of limited utility.

So it is, on the one hand limited utility; diminished to nothing, trampled upon and of little importance when you come to evaluating the seriousness of a case so far as the majority is concerned. On the other hand, as Justice Kaye said, application book 57, paragraph 70, important, very important, relevant:

indeed important –

and you have got to do it because that is what has been done for 25 years.

KIEFEL J: Now, the majority in the Court of Appeal did not disapprove of the decision in Humphries v Poljak.

MR O’MEARA: No.

KIEFEL J: But you say they did not apply it.

MR O’MEARA: Quite, and that is the problem. It is a trampling upon Humphries v Poljak and muddying of the principle in which causes, we - - -

KIEFEL J: How would you compare, if you rephrase what their Honours said at paragraph 19. How would you compare the two approaches?

MR O’MEARA: In one approach, you give great weight to, if you like, personal circumstances claimed subjectively by the applicant, because that is the first part of Humphries v Poljak; everybody agrees about that. When it comes to looking at the spectrum or the range of comparables, what does the judge do at all? You probably do not do anything because anything you can say about it, is liable to be in error because it is probably going to be incomplete. So, it is a winning of the second part of the synthesis, in our submission, and that is the difficulty with this judgment.

KIEFEL J: What do you mean, it is somehow pulling apart the post-modern approach to value judgment?

MR O’MEARA: Yes, that is what it has done, in our submission, and that is the difficulty with it because it has trampled upon settled principle in circumstances in which this is likely to change the way in which the evaluation is being done, must be done, and must be approached by trial judges because the trial judge looks to, I am sorry your Honour.

GORDON J: I think my problem is is that when you go to 19, you have got, as Justice Kiefel said, the endorsement on the face of it, of the Humphries approach, by back to paragraph 9 of the, and then it says:

In making that value judgment, a judgement must give to each identified relevant circumstance the weight which appears to be appropriate . . . assisted, of course, by personal experience –

Is that the spectrum?

MR O’MEARA: That is not the spectrum. The personal circumstances are the things referred to at the top of the page. Things like, in this case:

flashbacks or nightmares –

effects upon study, whether or not you can go outside. These are circumstances in the broad, not necessarily relating to this case but they are the kind of, what I have described as subjective consequences. That is what the consequences of the case are to the particular person.

KIEFEL J: Are their Honours saying though more than that you must focus upon the effects upon the particular person?

MR O’MEARA: They are giving primacy to the effects upon the particular person and what Justices Crockett and Southwell did was this: just to show the difference between the two because Justices Crockett and Southwell, and the passage is at application book 37, paragraph 9 of the reasons of the majority. It is at about line 43 in the quote:

To be ‘serious’ the consequences of the injury must be serious to the particular applicant.

That is, if you like, subjective seriousness because the applicant comes along and says, it means a lot to me because I used to be able to study. It says:

Those consequences will relate to pecuniary disadvantage and/or pain and suffering.

So, it can affect your work. It might affect the things you do at home and your recreations, and then it says:

In forming a judgment as to whether, when regard is had to such consequence –

that is the subjective consequences –

an injury is to be held to be serious –

or for present purposes, severe –

the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ –

Here we are more than “very considerable” because it is severe but that is the way in which it has been, and that is the settled principle as it has been for years. It is on the one hand subjective consequences; on the other hand, where does that fit as a matter of perspective in the range of comparables?

In our submission, the difficulty with what the majority did at application book 41 was to diminish, at the top of the page, any possibility of anything being comparable because anything you say is going to be incomplete because it does not take into account all cases. The example that was given was of a case with an occupational effect and that was not this case at all and then reposed a critical question from line 20 which did not; true it is, it referred to Justices Crockett and Southwell in Humphries v Poljak, but did not say anything at all about the range of comparables and pointed to another new consideration, “the line”, whatever that might be and the line is not the range. The line is something else in the mind of the individual judge.

GORDON J: So, practically, how does this – what are the implications practically for cases in the Country Court?

MR O’MEARA: The implication is that when the barrister addresses on the consequences, the barrister cannot do what happened in this case. See, what happened in this case, and this is in the - - -

GORDON J: No, no, no, not what happened. So just, as I understood in the past, there would be evidence led of the personal circumstances of the claimant.

MR O’MEARA: Yes.

GORDON J: There would be evidence led by reference to medical reports of the spectrum and where that person fell on the spectrum in order to undertake the two-stage process in Humphries. What is the practical implication as a result of paragraph 19 now?

MR O’MEARA: The judge does not know how to approach and reason out the spectrum because he says you cannot do so completely and nobody can address it because there is always something else which is not relevant because or is liable to lead into error because it is not comparable. This is a muddying, as we submit, or a trampling upon, and makes it very difficult to determine how to deal with the question of range or spectrum in later cases because it says that any way in which you frame it has to be incomplete and that is the very basis upon which the appeal was allowed.

KIEFEL J: Why would not this simply be understood as an expansion of what was referred to in the passage from Justices Crockett and Southwell, about the consequences to the particular applicant, looking at the

circumstances surrounding it? Is not that what the majority are referring to in paragraph 19?

MR O’MEARA: Well, they are certainly referring to Justices Crockett and Southwell - - -

KIEFEL J: - - - and the value judgment where the value judgment is about the consequences, the seriousness to the particular applicant.

MR O’MEARA: Yes, yes, they are doing that but they are doing that having already said that any framing of the spectrum is incomplete and - - -

KIEFEL J: What they do not do perhaps is they do not focus upon the comparison that is necessary.

MR O’MEARA: That is right and in fact there is no mention there of the necessary comparison at all. It is a different concept altogether and that is, in our submission, the difficulty and that is the difficulty faced by a judge. What does the judge do; address this or address settled principle over a long time that refers quite squarely to a different matter of perspective? That is the muddying and, in our submission, that is the error in the present case but it is an error with consequences because it creates a quandary and there is plainly a risk of perpetuation of it because it is an issue that arises in cases every single day. So, unless I can further assist, they are our submissions.

KIEFEL J: Just before you sit down - - -

MR O’MEARA: Certainly, your Honour.

KIEFEL J: - - - this is taken as a kind of test case really, is it, to clarify the law?

MR O’MEARA: Yes, quite right.

KIEFEL J: What does the Transport Accident Commission then say about the respondent’s costs if leave were granted?

MR O’MEARA: We would agree to a special costs order.

KIEFEL J: Yes. Yes, Mr Morfuni.

MR MORFUNI: Thank you, your Honours. Your Honours, the submission for the respondent is that this is not a case which raises any question of importance of legal principle and it is just another example of a practical application of the test that was accepted by the majority in the Court of Appeal as being the applicable test and that the real issue in the case is that the majority in the Court of Appeal came to the view that the test posited in the paragraph referred to in their reasons by the learned trial judge, was not appropriate in this case. Just by way of introduction, in order for a plaintiff to succeed on a serious injury application under paragraph (c) of the section, they have got to prove that there has been a serious injury.

In order to do that, they have got to show that there is a severe mental or behavioural disturbance. This was accepted to be the case here. The trial judge found it and in fact, the severe mental disturbance that was accepted was either, the post-traumatic stress disorder, a major depressive disorder or an adjustment disorder and there was no issue about causation in the case. The only issue that was raised in relation to the psychiatric injury was that there had to be some disentangling because it was asserted at trial that the other ailments, the physical ailments from which the respondent suffered, had a consequence on the psychiatric state.

That also was rejected by the trial judge, so that the only issue was whether the consequences were severe and the determination then had to be done according to the test played out in Humphries v Poljak. Now, it is significant, our learned friends, it is not the passage which is classically cited in relation to the appropriate test in Poljak, is preceded by what we would submit is a significant aspect of it and it is page 136 in the reasons in Poljak and what the majority there said in terms of the process to be gone through, in the last sentence that paragraph, what they say, they refer to Ninkovic v Pajvancek and how that set up the appropriate test. What they say about this is:

So far as it goes we consider it to be a helpful test to apply; although necessarily begs the question in as much as the measure or scale of the seriousness of the impairment (or loss) must remain a matter of emphasis or classification in each case. No definitive or mechanistic formula can, of course, be provided for the solution of the problem in every case.

So that when they then go on to talk about making a value judgment and comparing the subjective, what our learned friends referred to as a subjective elements in the particular case to the range, it is with that rider that there cannot be a definitive or mechanistic spectrum which will cover every case.

In other words, the duty of the judge is to look at the individual case and determine, based upon the evidence that he accepts and the experience, as they put it in the quote that our learned friends have taken the Court to, whether in their opinion the circumstances of that case cover the test and that approach has been repeated in a number of cases. So, for example, the court in the case of McKinnon, his Honour Justice Nettle as he then was, said at paragraph [51]:

As to matters of principle, however, I approach the appeal upon the basis that the assessment of whether pain and suffering consequences are sufficient to qualify an injury as a serious injury is a question of fact, degree and value judgment in the determination of which comparisons with other cases and check lists of relevant considerations are at best of limited utility.

That was again picked up in Wesfarmers’ Case, relied on by our learned friends, where Justice of Appeal Osborn at paragraph [35], as the reason says:

The determination of the degree of seriousness of the consequences of the injury was not of course to be determined by a checklist. Nor by simplistic reference to comparable cases.

which is another way to say by setting up a spectrum and then saying that it does not fall within that spectrum. The error, in our submission, is that what the learned trial judge did in effect was to say that in order for the respondent to succeed, she had to show that she suffered the severe or extreme consequences that he outlined in paragraph 82, “delusional beliefs”, inpatient psychiatric treatment, et cetera.

In our submission, that is a gloss not only on the statute but on the Humphries v Poljak test because there is nothing in Humphries v Poljak which says that, in relation to psychiatric injury, the appropriate parameter is that unless someone shows that they have suffered inpatient psychiatric treatment, delusional and suicidal ideation, then they do not qualify and that is the error that the majority in the Court of Appeal found.

That is, that the so-called spectrum, which was set up by the trial judge, as not helpful in determining this particular case. Why? The reason, your Honours, is this. That having found that she suffers – let us take only one of the disorders – a post-traumatic stress disorder, the question then becomes, having regard to the treatment that she has required in respect of that disorder, the medication that she is required to take in respect of that disorder and the consequent limitation on her enjoyment of life, do those factors enable a judge to conclude that they are severe in her case? That is what this trial judge failed to do because, and one can see that he failed to do that because in subsequent paragraphs to what we say is the offending paragraph at 82, when he comes to the analysis of what our learned friends say are the subjective conditions, he looked for extreme consequences and that can be seen, for example, at paragraph 85 where he uses the phrase:

I do not accept her condition is as extreme as she would have it.

Nor has she “suffered the more extreme symptoms of psychological trauma described above” which I have indicated are the symptoms including psychosis, admission to psychiatric hospitals as an inpatient, delusional beliefs and thoughts and suicide attempts. The error is even more highlighted by the fact that when the trial judge came to consider what it was that he found was a retained capacity, by the respondent, one of the retained capacities that he found was that she did not need inpatient treatment and nor did she suffer the more extreme symptoms.

Now, it is conceded that the need for treatment is a relevant consideration. However, there is no requirement either in the Act or in the Humphries v Poljak formulation that such treatment has to be in a psychiatric institution or, indeed, of any particular level.

KIEFEL J: Looking at the primary judge’s reasons at special leave book page 27 at paragraph 83, after the discussion in paragraph 82 to which you have taken us, does not his Honour in those succeeding paragraphs look to the effects upon her?

MR MORFUNI: Well, yes, he does.

KIEFEL J: If that is the case, what is the Court of Appeal talking about in paragraph 19 because is not the primary judge doing what the Court of Appeal is there discussing?

MR MORFUNI: Well, no, your Honour. What the trial judge, he certainly discusses the consequences but the criticism that was made of that analysis is that he did so, having regard to the standard that he set - that is, that a person had to suffer psychoses, inpatient psychiatric hospitalisation and, indeed, delusions and suicidal ideation or attempts and that is the error because properly read, in our submission, what the trial judge was in fact asserting is that unless a plaintiff, or an injured person, satisfies that standard, it cannot satisfy the standard, the test.

GORDON J: Is that right, Mr Morfuni? I mean, if you look at the way Justice Kaye analyses it, especially from pages 60, probably earlier than that, 59 onwards: is not the trial judge looking at consequences? He is addressing the consequences. He is addressing the consequences. He draws a distinction between the symptoms, that is the diagnosis and then, in a sense, what the impact it is having on her life.

MR MORFUNI: Yes, but the impact, well - - -

GORDON J: I will go back a stage. You accept that it is consequences which are the relevant inquiry for the Humphries test.

MR MORFUNI: Yes, I do. Yes, I do. Yes, but the consequences not from, - what the trial judge did, in our submission is this. He asked, he said from, he directed himself that in order to decide the case, he had to decide whether this plaintiff demonstrated any of the – at paragraph 82, your Honour, any of the extreme symptoms and consequences that he sets out in 82. That is a general standard.

He then looks at the facts but he does so, in our submission, with the perspective that, he is asking himself, has this woman, for example, suffered a psychoses? Clearly, no. Has this woman suffered inpatient psychiatric admission? Well, on one occasion he notes that she was admitted but not for any lengthy period of time. Does she have delusional beliefs? Not clear. Does she have suicidal ideation or attempts? Not clear. It is from that perspective that he then, he analyses the consequences and, we say, we submit, that finally that – what we would submit is the error, is picked up at page 54 of the application book, the last dot point there:

While she has received considerable treatment and medication, she has not been inpatient in any psychiatric institution (save for one attendance at an Emergency Department) nor suffered the more extreme symptoms of psychological trauma as described above.

and the psychological trauma described above is at paragraph 82 and what the majority say about, in our submission, the majority say about that is that in fact that is not a correct approach because, and it is not what the Humphries v Poljak test requires and, in our submission, to argue that the majority did not apply the Humphries v Poljak test and trampled on it is a misdescription of what occurred because, in our submission, your Honours, from the very, almost from the start of the reasons, but certainly at paragraphs 9 where they quote the passage from the majority in Humphries v Poljak which includes a reference to the spectrum or the range, as it is called.

Then at paragraph 19 which is the allegedly offending paragraph, what the majority do there is refer back to what they had said at paragraph 9 as being the appropriate test and they say:

the correct thing to do, in each case, is to first identify and next bring to account all relevant circumstances personal to the claimant; and then to apply the statutory test, making a value judgment as described by Crockett and Southwell JJ in the passage cited at [9] above.

and I have taken your Honours to that which includes a reference to the so-called range and then they say:

In making that value judgement, a judge must give to each identified relevant circumstance the weight which appears to be appropriate. He or she will be assisted, of course, by personal experience of cases which have fallen on one side of the line or the other.

which is a balancing exercise, which is what is required. There is no requirement that a particular standard, being the standard set up by the trial judge at paragraph 82 of his reasons, is in fact the range that has to be applied.

That can be tested in this way, your Honours. In fact, if the range posited in paragraph 82 by the learned trial judge is the appropriate range, then plaintiffs, for example, such as the plaintiff in Hunter would have failed because there was no evidence there that she suffered from any psychoses or suicidal ideation or that she required inpatient psychiatric treatment. There was evidence there that she required continuing treatment in respect to a depressive condition and that although she was helping to run a business with her husband, that did not bely the fact that the consequences for her were serious.

Equally, in Turner v Love, the plaintiff in that case, your Honour, was in the situation where medication in effect controlled her depressive condition but if she did not take medication, there would be exacerbations but again, no evidence that she required inpatient psychiatric admission; no evidence that she had to delusional beliefs and no evidence that she had suicidal ideation and yet the court held that on the facts of that case, the test had been satisfied. So, in our submission, the majority judgment in the court below, especially in paragraph 19, if read fairly, is entirely consistent with Humphries and all that they are saying is, that in this case the learned trial judge in fact set up a spectrum which was not helpful to deciding this case and how can a spectrum where, which requires the sort of extreme symptoms or consequences outlined in that paragraph, be applicable across the board, or indeed, in this case?

The issue before his Honour was, not whether, if she had suffered delusional beliefs or psychoses, would she have satisfied it but, given that she does suffer post-traumatic stress disorder, she does need treatment, she does need medication and she has the identified consequences; are they severe, balancing and making a value judgment which is what the proper application of the Humphries v Poljak test requires and not as our learned friends would submit.

Now, so the cul de sac which in their reply, our learned friends endeavour to identify, in our submission, just does not exist and in practical terms, the majority decision in this case, will not have any adverse consequences for the day-to-day administration of these cases in the courts below because the majority reaffirmed, rather than trampled on the Humphries v Poljak test.

Now, the final point in their reply is that they cite the Papamanos Case where, in an earlier decision by the same trial judge, the same sort of wording had been passed but in that case, the case concerned the issue of the adequacy of the reasons, and that is seen at paragraphs 42 to 43 and more importantly, at trial the plaintiff had emphasised the part (a) aspect of his claim, not the part (c) and she failed on the part (a) and the Court of Appeal said that in the circumstances of that case, in terms the psychiatric injury, there was no error by the trial judge dismissing the application.

KIEFEL J: I see the light is on. Thank you.

MR MORFUNI: Yes. If the Court pleases.

KIEFEL J: Anything in reply.

MR O’MEARA: Briefly, your Honours, our learned friend referred at some length to his Honour the primary judge’s addressing of the consequences claimed in this case. Every member of the Court of Appeal accepted that his Honour’s analysis of those consequences was conventional. There was no problem at all in dealing with those subjective consequences and the manner in which in this case they were affected by the plaintiff’s lack of credit.

KIEFEL J: Well, do you say the majority in the Court of Appeal treated the judgment below as if it finished at the point of consideration of the range - - -

MR O’MEARA: Yes.

KIEFEL J: - - - and did not take account of - - -

MR O’MEARA: No, it did not. It dealt - - -

KIEFEL J: Is this really a visitation case though, rather than a case involving principle?

MR O’MEARA: It is a visitation, I am sorry, your Honour, it is a visitation with consequences because we must embrace that - - -

KIEFEL J: Well, that makes it a much better visitation, of course.

MR O’MEARA: It is a visitation but visitation, I suppose, carries within it that you are looking at something that has consequences upon an area and this plainly does, in our submission.

KIEFEL J: The Court will adjourn for a few moments to consider the course it will take.

AT 11.39 AM SHORT ADJOURNMENT

UPON RESUMING 11.42 AM:

KIEFEL J: Mr O’Meara, I take it that when talked about a special costs order before you were conveying that the Commission would undertake to pay the respondent’s costs of an appeal if leave were granted - - -

MR O’MEARA: Yes, your Honour.

KIEFEL J: - - - and would not seek to disturb any costs orders made to date.

MR O’MEARA: Correct.

KIEFEL J: On that basis, there will be a grant of special leave.

MR O’MEARA: If the Court pleases.

MR MORFUNI: If it please the Court.

KIEFEL J: Would you please ensure that your solicitors obtain the timetable for submissions.

MR O’MEARA: Thank you, your Honour.

KIEFEL J: The Court will now adjourn briefly while a video link is established.

AT 11.43 AM THE MATTER WAS CONCLUDED