Kingston v Kingston [2020] PGSC 101; SC2021 (29 October 2020)

SC2021

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

KEITH KENNETH KINGSTON
Applicant

V

JUDITH MERILYN KINGSTON
First Respondent

AND

NOEL LIONEL GIRDLER
Second Respondent

Waigani: Batari J, Anis J, Tamate J
2019: 31^st October,
2020: 29^th October

SUBSTANTIVE REVIEW – Application for Review – S. 155(2)(b) – Constitution – review against exercise of discretion by the primary judge – petition for dissolution of marriage – application to amend petition to include ancillary relief, settlement of matrimonial property – application refused – exercise of discretion by the primary judge – whether insufficient weight was given to facts that had been put forward which included domicile status of, business of, location of business of, properties of and intention of, the applicant to commence proceeding in PNG - whether the primary judge erred in the exercise of his discretion when he found that the proceeding for the relief-property settlement had been sufficiently commenced in another jurisdiction which was in the Family Court of Brisbane, Australia

Facts

This was the substantive hearing of a review after the grant of leave. The applicant filed a petition for dissolution of marriage against the first respondent, in the National Court. He later decided to amend his petition. He filed an application seeking leave for that before the primary judge. The intended amendment was aimed at pleading and seeking an order for distribution of the couple’s matrimonial properties and assets that had been acquired during their marriage. The primary judge refused to grant the required leave. The applicant challenged the said refusal.

Held

(1) The primary judge did not err when he refused leave based on one of his reasons namely forum non conveniens:

(i) as it was the applicant’s own decision against claiming matrimonial property settlement, that had prompted the first respondent to seek the said relief in a separate jurisdiction, which is, in the Family Court of Queensland, Australia;

(ii) other than the conventional considerations, the primary judge correctly considered international judicial comity or judicial comity as a relevant consideration given that the same had been exercised by the Full Court of the Family Court of Australia;

(iii) as he also correctly considered that the applicant had subjected himself to the jurisdiction of the courts in Australia by the actions that the applicant had taken in that jurisdiction to the time of hearing of the leave application, including considering the orders that have been made against the applicant by the Full Court of the Family Court of Australia, on 10 August 2017.

(2) In regard to the question of insufficient weight, sufficient weight was given by the primary judge when he exercised his discretion and refused leave; the primary judge was not restricted to considerations like the fact that the applicant is a permanent resident of Papua New Guinea, he is the Managing Director of K K Kingston Limited and owns significant property in Papua New Guinea, he has been domiciled in Papua New Guinea since 28 October 1968, he and his wife cohabited in Papua New Guinea since before and immediately after their marriage until 1997 and Judith Kingston had also been granted permanent residency in Papua New Guinea; these considerations were relevant but were considered together with the others, before the primary judge exercised his discretion.

(3) The use of the phrase “ deliberate decision” by the primary judge in his decision to say that the applicant did not plead the relief-property settlement, was merely his choice of words which did not have any significant negative consequences to his considerations; it was in fact appropriately used to express what was pleaded at paragraph 12 of the petition which may be regarded or described as a deliberate act or intention by the applicant not to seek the relief-property settlement at the relevant time.

(4) The use of the term “split hearings” by the applicant was misconceived as well as it proved contradictory to the facts and circumstances of the case.

(5) Notable considerations regarded by the primary judge in the exercise of his discretion were, (i), to avoid split hearings and (ii), to observe international judicial comity.

(6) The review was dismissed in its entirety with cost following the event.

Cases Cited:

The following cases were cited in the judgment:

Keith Kenneth Kingston v. Judith Merilyn Kingston (2017) N7054
Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd (1995) SC488
O.M. Holdings Ltd v Minimbi (2013) N6783
Avia Aihi v. The State (No. 1) [1981] PNGLR 81
Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568

Counsel:

I Molloy with counsel assisting E Rere, for the Applicant
J G Renwick with counsel assisting Dr Katter and B Sinen, for the First Respondent

29^th October, 2020

1. BATARI J: I have read the draft decision of Justice Anis. I agree with the reasoning and the orders proposed, that the application for judicial review be refused and the application be dismissed. I have nothing to add.

2. ANIS J: We heard the substantive application for review on 30 October 2019. The application was contested. The second respondent was not represented at the hearing.

3. The decision for review before this Court was made by Justice David (the primary judge) on 25 October 2017. It is also published as Keith Kenneth Kingston v. Judith Merilyn Kingston (2017) N7054. The decision was based on an interlocutory application that had been filed and moved by the applicant, on 13 October 2017. The applicant is a petitioner of a matrimonial causes proceeding which is currently pending before the National Court. The petition is described as MC No. 25 of 2016, and it was filed on 20 October 2016 (MC proceeding/petition). In the MC proceeding, the applicant is seeking dissolution of his marriage with the first respondent. The first respondent is named as the respondent therein. She is the legal wife of the appellant. The second respondent is sued as a co-respondent in the MC proceeding. He is being sued for damages based on allegations of adultery.

RELEVANT BACKGROUND

4. In the petition, the applicant does not seek as a relief orders for distribution of the properties and assets of the marriage (relief-property settlement). Weeks later and on 11 November 2016, the first respondent commenced a proceeding at the Family Court of Queensland, Australia in proceeding described as BRC 11392 of 2016 (the Australian Family Court proceeding). In the Australian Family Court proceeding, the first respondent is seeking the relief-property settlement. That proceeding was pending at the hearing of this review.

5. In the Australian Family Court proceeding, 2 applications had been filed. One was by the first respondent. It was filed on 23 November 2016 whereby the first respondent had asked the Court to stay the MC proceeding pending the Australian Family Court proceeding. Two days later, on 25 November 2016, the applicant filed a counter application where he had sought to either permanently or temporary stay the Australian Family Court proceeding pending determination of the MC proceeding. On 20 January 2017, the Family Court of Queensland refused the applicant’s application for stay and granted the first respondent’s application. In so doing, it permanently restrained the applicant from continuing the MC proceeding in Papua New Guinea (PNG). The applicant was aggrieved, and he appealed that decision to the Full Court of the Family Court of Australia (the Full Court). On 10 August 2017, the Full Court set aside the orders that had been made by the Family Court of Queensland. The Full Court, amongst others, permitted the MC proceeding to continue in PNG, that is, for dissolution of marriage between appellant and the first respondent. But in so doing, the Full Court also restrained the applicant from continuing any proceedings in PNG that may seek to restrain or prevent the first respondent from pursuing her matter in Australia, in relation to the relief-property settlement. The Full Court stated, amongst other things, that the matter concerning the relief-property settlement was already pending before the Australian Family Court proceeding and as such, that it must be allowed to continue.

6. Earlier, on 5 December 2016, the applicant had also filed a notice of motion (leave application) under the MC proceeding, to amend his petition to, amongst others, include the claim for the relief-property settlement. The application was heard, and in regard to the particular matter, it was declined by the primary judge on 25 October 2017.

GROUNDS OF REVIEW

7. Of the 4 grounds of review pleaded, the applicant has opted to pursue 3, namely,

1. That the learned trial Judge erred in fact and in law in his application of the principle of forum non conveniens when he refused to grant leave to the Applicant to include ancillary relief for settlement of property in his separate Petition;

......

100. That the learned trial Judge erred in fact and in law in not giving appropriate weight to the evidence of the Applicant that he is a permanent resident of Papua New Guinea, he is the Managing Director of K K Kingston Limited and owns significant property in Papua New Guinea, he has been domiciled in Papua New Guinea since 28 October 1968, he and his wife cohabited in Papua New Guinea since before and immediately after their marriage until 1997 and Judith Kingston had also been granted permanent residency in Papua New Guinea.

4. That the learned trial Judge erred in fact and law by accepting the submission of the Respondent that the Applicant had made a deliberate decision not to include any ancillary relief in the Petition thereby prompting the Respondent to commence proceedings for settlement of property in the Family Court of Australia.
   

CHALLENGE

8. The main challenge relates to the exercise of discretion by the primary judge. Did he duly exercise his discretion according to law? Or did he fail in that regard by not considering the various facts and law where if considered, would have swayed or enabled him to exercise his discretion in favour of the applicant where leave would have been granted to amend his petition to include the relief-property settlement?

THE PRINCIPLE FORUM NON CONVENIENS

9. The applicant raises a conflict of laws doctrine, that is, forum non conveniens which had been regarded by the primary judge in his decision. He argues that the appropriate or convenient forum to deal with the relief-property settlement would be the PNG courts or jurisdiction and not the Australian courts or jurisdiction as found or determined by the primary judge. The applicant refers to and discusses case authorities including this Court’s decision in Stettin Bay Lumber Company Pty Ltd v. Arya Ship Management Ltd (1995) SC488 which had been relied upon by the primary judge.

10. I have considered the submissions of the parties on this. What stood out are the following. The applicant argues the primary Judge did not consider the fact that to disallow his intention to include the relief-property settlement, would mean split hearings, one for divorce which is the MC proceeding commenced in PNG, and the other for the relief-property settlement, which is commenced in Australia. The first respondent in reply, argues, amongst others, that the argument is misconceived. She submits that there are no split hearings as allege, that is, based on what is pleaded in the petition and in the Australian Family Court proceeding.

11. This is my view. I uphold the submissions by the first respondent. The status of proceedings in both jurisdictions do not amount to split hearings as allege. The applicant’s petition for divorce in the MC proceeding does not plead or seek the relief- property settlement. The first respondent, being an Australian citizen who is ordinarily resident there, weeks later, commenced the Australian Family Court proceeding. In that proceeding, she seeks the relief-property settlement. So, other than the fact that there are 2 separate proceedings that involve the couple in 2 separate jurisdictions, the relief sought and the issues are different. If for example, dissolution of marriage is also sought as a relief in the Australian Family Court proceeding, there may be a reasonable basis or rationale in the submissions by the applicant of ‘split hearings.’ The same can also be said (re, ‘split hearings’) if the MC proceeding had included, as part of its claim, the relief-property settlement. That is of course not the case here. And I note that the conventional reasons to the doctrine forum non conveniens were not the only basis or reasons taken into account by the primary judge, in his ruling. Other considerations included (i), the advanced stage in the Australian Family Court proceeding, (ii), submission by the applicant to the Australian courts or jurisdiction, and (iii), regard to international judicial comity.

12. I also note the common sense or pragmatic submissions by counsel for the first respondent Mr Renwick. The Australian Family Court proceeding, counsel submits, is already at an advanced stage. And counsel submits that if agreed, the MC proceeding could be resolved right away without further procrastination. Counsel further submits the parties could agree with a consent order for the dissolution of marriage so that they could focus their attention on the Australian Family Court proceeding. The applicant in response, submits, amongst others, that the MC proceeding also include a claim for damages for adultery against the second respondent, and he submits that it is not as straight forward as the first respondent claims. I find the submissions by Mr Renwick on point, amongst others, as sensible. What is really at stake between the couple relates to dissolution of their marriage and for the distribution of their matrimonial properties. And it could easily be resolved in the manner as proposed to by counsel for the first respondent without affecting the claim for damages for adultery against the second respondent. The applicant no doubt has the right under the laws of this jurisdiction to pursue his claim in the manner as he decides or prefers, and it should not be for this Court or anyone for that matter, to tell him what to do or criticize his preference. But that said, and given the express position of the first respondent to this Court, of her intention or willingness to consent to dissolve their marriage, I find it hard not to regard the actions of the appellant as disingenuous or insincere. To me, it triggers a common concern that is identified with the doctrine, namely, whether the applicant may be regarded as forum shopping in the Court below as well as in the courts of Australia; whether he had aimed to pick a court or forum merely to gain an advantage over the respondents. The applicant argues that his actions were genuine; that he had not wanted to subject himself to the Australian Family Court proceeding by his actions, that is, when he had applied to stay the Australian Family Court proceeding and when that failed, when he had lodged his appeal to the Full Court. I note the arguments. The Full Court, in refusing the applicant’s appeal, also made this order, and I read:

(4) It be ordered in lieu that

The husband is restrained and an injunction hereby issues restraining him from continuing proceedings in Papua New Guinea in so far as those proceedings seek to restrain the wife from pursuing her application for settlement of property in the Family Court of Australia.

13. The applicant’s leave application was filed on 5 December 2016. It was not moved until about 10 months later on 13 October 2017. And the said leave application was filed after the first respondent had commenced the Australian Family Court proceeding, that is, on 11 November 2016. Was the leave application filed in reaction to or to counter the Australian Family Court proceeding? The answer to that and whether there was forum shopping, are not matters for this review Court to decide. But the pattern I see which is undisputed is this. The applicant failed to stay the Family Court proceeding in Queensland. His appeal to the Full Court, although successful, has orders that stops him from taking any court actions whether in PNG or in Australia, that may prevent the first respondent from pursuing her case in the Australian Family Court proceeding.

14. If I may add that the irony to the intended action of the applicant to amend his petition and his submission on split hearings is that if this Court is to grant the review and allow leave, it will have the real potential of creating split hearings in both jurisdictions compared to what they are at the moment or juncture. The relief-property settlement, if leave is granted, would be sought in both jurisdictions, and this Court will have overlooked the principle of judicial comity or international judicial comity, which to date had been exercised by the Full Court and the primary judge in the MC proceeding. I also note that the Full Court has, in its ruling, made it abundantly clear that the Australian Family Court proceeding will proceed.

15. International judicial comity was exercised by the Full Court when it set aside the decision of the Australian Family Court proceeding, that is, after the latter had stayed the MC proceeding in PNG from proceeding. The Full Court ruled, amongst others, that the MC proceeding should be permitted to continue in PNG. The qualification made by the Full Court in its said decision which was based, amongst others, on the principle of judicial comity, was by permitting the first respondent to continue her matrimonial property settlement claim in the Australian Family Court proceeding, which the Full Court found, had not been sought by the applicant in the MC proceeding in PNG. And the primary judge, as I observe from his decision, was considerate of the principle of international judicial comity. On point and at paragraph 38 of his decision, his Honour said:

38. In the present case, if the Petitioner is granted leave, it will create a situation where two proceedings with respect to settlement of property will co-exist in the Family Court of Australia and in Papua New Guinea in the current proceedings. Having regard to the notion of international comity, that situation should be avoided.

16. I find that His Honour has correctly applied his discretion in that regard. The relief-property settlement was already pleaded by the first respondent in the Australian Family Court proceeding for determination. I must comment that this is perhaps a rare but fitting situation whereby I see judicial comity or international judicial comity being rationally exercised by the courts of both jurisdictions. And this is where the Courts of both jurisdictions are at, that is, after having considered and exercised judicial comities over the proceedings that are before them. An overturn of the primary judge’s decision by this review Court would, in my view, have the effect of breaching the already existing judicial comity rulings or regards as had been observed or exercised by the courts of both jurisdictions.

17. So, in addition to or apart from the conventional arguments or tests for considering forum non conveniens, such as place of marriage, domicile of each of the parties, citizenship and location of their assets, the above considerations were also relevant and were, including the conventional considerations, considered by the primary judge before he arrived at his decision. I therefore see no identifiable error that existed in the exercise of discretion by the primary judge.

18. I dismiss the first ground of review.

PERMANENT RESIDENCY AND RELATED CONSIDERATIONS

19. I note the submissions of the parties in regard to the second ground of review.

20. The applicant claims that the primary judge did not give appropriate weight to the evidence of the Applicant that he is a permanent resident of Papua New Guinea, he is the Managing Director of K K Kingston Limited and owns significant property in Papua New Guinea, he has been domiciled in Papua New Guinea since 28 October 1968, he and his wife cohabited in Papua New Guinea since before and immediately after their marriage until 1997 and Judith Kingston had also been granted permanent residency in Papua New Guinea.

21. This type of ground of review can be difficult to determine, that is, where it is alleged that sufficient or appropriate weight was not given in the exercise of a judge’s judicial discretion. It would, in my view, require a whole or general scrutiny of the primary judge’s considerations, and then compare them to the allegations raised under this ground of review, to make a determination.

22. The applicant and the first respondent are Australian citizens, and all or most of what are stated as facts in the said ground of review, are not disputed. And I note that the applicant does not dispute that these factors were considered by the primary judge. The couple spent most of their lives in PNG since 1968. The applicant continues to do so. As for the first respondent, she has gone back to live in Australia since 1997. The applicant had the freedom to choose where he wanted to file his matrimonial proceeding for dissolution of marriage. In this case, he chose to do so in PNG under the jurisdiction of the National Court, on 20 October 2016. That was entirely a matter for him, and the matter will now proceed in the National Court, if it is not resolved after this review. As for the first respondent, she currently lives in Australia. And she has chosen to commence proceeding there in the Family Court of Brisbane, to seek the relief-property settlement. Like her husband, it was within her right and freedom to choose where she wanted to commence her action.

23. So far, the scale appears balanced in terms of considering which jurisdiction may be suitable for the couple to pursue their grievances. The turning points or considerations that appeared to have tipped the scale in favour of the first respondent under this ground of review were as follows. Firstly, the primary judge noted the fact that the applicant had initially decided against seeking the relief-property settlement in the MC proceeding as was pleaded in the petition. The second factor was this. The first respondent, shortly after the MC proceeding was commenced, commenced proceeding in Australia where she claims the relief-property settlement. The primary judge took into account the fact that the relief-property settlement, which was not sought by the applicant in the petition, was sought by the first respondent in the Australian Family Court proceeding. The third factor was this. It was only after when the first respondent had sought the relief-property settlement in the Australian Family Court proceeding, that the applicant applied in the MC proceeding for leave to, amongst others, seek the same relief. Whether the applicant had deliberately decided to exclude the relief-property settlement in his petition, or whether his decision to include the said relief was in reaction to the first respondent’s Australian Family Court proceeding, were matters that were within the sole knowledge of the applicant. But a relevant fact which was before the primary judge was that the applicant had deliberately left out the relief-property settlement in his petition and he has expressly stated that (that is, his intention not to seek the relief-property settlement) in his petition. The fourth factor was this. The relief-property settlement was sought by the first respondent in a separate jurisdiction, that is, in Australia which by then was at an advanced stage. The fifth factor or reason was the primary judge’s regard to the principle of judicial comity, that had been exercised by the Full Court. I have already discussed that above.

24. I therefore see no reason to deviate from the considerations, findings and conclusions reached by the primary judge in his decision.

25. I dismiss the second ground of review.

‘DELIBERATE DECISION’ ARGUMENT

26. I refer to the final ground of review. Did the primary judge err when he said that the applicant had made a deliberate decision not to include any ancillary relief in the Petition thereby prompting the Respondent to commence proceedings for settlement of property in the Family Court of Australia ?

27. I have considered the submissions of the parties. I will say this. Firstly, the decision by the applicant to file the petition in the manner as he did is expressed in the petition itself. The part that had prompted the primary judge to use the term “deliberate decision not to include any ancillary relief in the petition” is pleaded at paragraph 12 in the petition. It reads:

12. The Petitioner does not intend nor propose any arrangements for the provision of maintenance nor benefit referred to in Section 25(5) of the Act for the Respondent on the decree becoming absolute. This is for the following reasons

(a) All the children are adults and independent; and

(b) The Respondent occupies a multi-million dollar penthouse, has her own car and is independently very well off financially.

28. It is obvious that the said pleading is express or deliberate, that is, whichever way one may want to describe it. So, I would agree that that is the applicant’s express position which has not changed, that is, despite his intention to try to amend his petition to include the relief-property settlement. The applicant was of course at liberty to change his position or intention after he filed his petition, and he did that which was reflected in his leave application, but which was denied by the primary judge. But on the same token, I must say that I do not think that the use of the phrase “deliberate decision” by the primary judge meant that His Honour did not consider the applicant’s right to amend his pleadings. Such an assertion is baseless in my view. And I note that the primary judge did not base his reasonings only on this consideration, that is, on what is pleaded at paragraph 12 of the petition. His Honour also took into account other factors such as delay, timing, international judicial comity, submission to jurisdiction and also rationality, before he arrived at his final decision.

29. I find the third ground of review without merit and I dismiss it.

DID THE APPLICANT SUBMIT TO THE JURISDICTION OF THE COURTS IN AUSTRALIA?

30. The final point I wish to address separately is this. The applicant argues amongst the 3 grounds of review that the primary judge erred in the exercise of his discretion when he found that the applicant had submitted himself to the jurisdiction of proceedings that had been commenced by the first respondent in Australia.

31. The applicant submits that the said finding was contrary to what he actually did in the Family Court proceeding as well as in the Full Court. He submits that (paraphrasing) his application before the Family Court of Queensland where he had unsuccessfully applied for a stay of the proceeding, and also his appeal to the Full Court to overturn the decision of the Family Court, all go to show that he did not or was not willing to be abided by these courts’ jurisdictions; that it was always his intention to be subjected to the MC proceeding that is commenced in PNG.

32. The first respondent argues otherwise.

33. With respect, I find the arguments by the applicant contradictory. It is obvious that he made the decision to defend himself in the Australian Family Court proceeding. His application in the Australian Family Court proceeding was to stay the said Court proceeding which meant that he had or may have planned to resume hearings there depending on the outcome of his MC proceeding in PNG. When his application failed, he appealed the Family Court’s decision to the Full Court. So, it is hard for me to appreciate or accept the applicant’s argument that he never subjected himself to the jurisdictions of the proceedings that were commenced in the Family Court of Queensland and the Full Court. See case: O.M. Holdings Ltd v Minimbi (2013) N6783. If I may add that there is currently orders in place made by the Full Court that are binding upon the applicant and the first respondent, in relation to these related proceedings.

34. The primary judge, in my view, appropriately considered these factors.

REMARK

35. The first respondent raised the argument exceptional circumstances and argued why the applicant did not meet the said requirement. Towards the end of the first respondent’s oral submission, it appeared that counsel had conceded to the arguments or position in law stated by the applicant and this Court.

36. Given that, I see no need to dwell further on the issue, except to say the following. The issue concerning merit of a review, that is, based on whether there is or are exceptional circumstances why leave should be granted, is decided at the leave stage or at the hearing of an application for leave to apply for review. This Court in Avia Aihi v. The State (No. 1) [1981] PNGLR 81, stated:

(Greville Smith J. and Kapi J. dissenting.) Section 155 (2) (b) of the Constitution, which gives the Supreme Court an "inherent power to review all judicial acts of the National Court", however, invests the Supreme Court with an unfettered discretionary jurisdiction to hear an appeal and an application for leave to appeal from the National Court, although the applicant has lost his right to appeal or to apply for leave to appeal. The discretion should be exercised only in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity, the onus being upon the applicant.

37. Justice Injia, (as he then was), also summarised the requirements for an application for leave to review that is filed under s. 155(2)(b) of the Constitution, in the case of Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568, as follows:

Leave application: principles

5. The criteria for grant of leave for review is settled in various decisions of this Court: Lae Bottling Industries Ltd v Lae Rental Homes Ltd (2011) SC1120, State v Toka Enterprises Ltd (2013) SC1266, Luke Marano v Jack Nouari (2013) SC 1307. The applicant must have standing to bring the application. If the applicant is a party in the proceedings of the court below from which the judgment under review was given, the question of standing does not arise. The applicant must offer a reasonable explanation as to why an appeal against the judgment was not filed within time. The application for leave for review must not be delayed. If there has been a delay in lodging the application, a reasonable explanation must be given. The application must be prosecuted promptly. If there has been a delay in prosecuting the application, a reasonable explanation must be offered. If the court finds that there has been a delay and no reasonable explanation has been offered for the delay in lodging and prosecuting the application, the court may, nonetheless, grant leave for review if there are exceptional circumstances showing manifestation of substantial injustice that give rise to serious issues of facts or law that warrants a full review of the judgment. It is also necessary for the applicant to demonstrate that it is in the interest of justice to warrant a review of the judgment.

38. Once the Leave Court grants leave to an applicant, the argument exceptional circumstances cannot be raised again in the substantive hearing. Sometimes, both the leave and the substantive application to review, may be set down together for hearing. In that type of situation, the Supreme Court will of course hear the leave application first, and if leave is granted, proceed to deal with the substantive review.

39. In the present case, leave had been granted and we were only hearing the substantive review.

SUMMARY

40. In conclusion, I would dismiss this review.

41. An order for cost is discretionary. I will order cost to follow the event. I do not see or find any valid argument of why I should order cost differently. Cost of the review will be assessed on a party/party basis to be taxed if not agreed.

ORDER:

(1) The review is dismissed in its entirety.

(2) The applicant shall pay the first respondent’s cost of this review which shall be assessed on a party/party basis to be taxed if not agreed.

42. TAMATE J: I have read the decision of my brother Anis J. I also agree with the reasonings and orders that he proposes, and I have nothing further to add.

FINAL ORDER OF THE COURT:

(1) The review is dismissed in its entirety.

(2) The applicant shall pay the first respondent’s cost of this review which shall be assessed on a party/party basis to be taxed if not agreed.

________________________________________________________________

Corrs Chambers Westgarth: Lawyers for the Appellant

Leahy Lewin Lowing Sullivan: Lawyers for the First Respondent