BHP STEEL (AIS) PTY LTD v GIUDICE BHP STEEL (AIS) PTY LTD v BUJAROVSKI BHP STEEL (AIS) PTY LTD v DIMITRIOSKI BHP STEEL (AIS) PTY LTD v NAUMOVSKI BHP STEEL (AIS) PTY LTD v FAIOLA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, HANDLEY and COLE JJA 24 February 1997, 7 March 1997 [1997] NSWCA 46 ABSENCE of reasons for extensions of time — appeals upheld — application of established principles. Mason P, Handley and Cole JJA Before the Court were six summons of leave to appeal from decisions of his Honour Judge Gallen granting extensions of time within which common law actions in the District Court could be brought grounded upon alleged negligence causing hearing loss to the various worker opponents. By consent of all parties the matters were heard together and it was agreed that the Court would consider both the application for leave to appeal, and if granted, the appeal itself. APPLICABLE PRINCIPLES The relevant statutory provisions requiring consideration are found in s60G and s60I Limitation Act 1969 as amended. Those sections are as follows: "60G (1) This section applies to a cause of action that accrues on or after 1 September 1990, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897. (2) If an application for an order under this section is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period as it determines." "601(1) A court may not make an order under s60G or s60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered; or (ii) was unaware of the nature or extent of personal injury suffered; or (iii) was unaware of the connection between the personal injury and the defendant's act or omission. at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and 2 UNREPORTED JUDGMENTS (b) the application is made within 3 years after the plaintiff became aware (or ought to have become aware) of all 3 matters listed in para(a)(i)-para(a)(iii)." Cl4 of Schedule 5 to the Limitation Act 1969 provided that: "(i) S60G also applies to a cause of action, founded on negligence, nuisance or breach of duty, being a cause of action that accrued or would have accrued before 1 September 1990." All of the claims now being addressed relate to claims for damages for injuries suffered prior to 30 June 1987. Accordingly, in consequence of cl4(1) Schedule 5, s60G(2) applies. Cl4(4) of Schedule 5 provides that: "The court may make an order under s60G or s60H, in relation to a cause of action referred to in this cause, within: (a) the period of three years referred to in s60I; or (b) the period of three years commencing on | September 1990." C14(4)(b) does not apply as all applications were made after 1 September 1993. Accordingly an order under s60G may only be made in these cases, within three years after the plaintiff became aware (or ought to have become aware), of all three matters listed in s60I(1)(a)(i)-s60I(1)(a)(iii). Nonetheless, in light of s60I, an order may not be made under s60G unless the court is satisfied of the matters in subs(1)(a) and subs(1)(b). In respect of those claims relating to injuries allegedly suffered up to and including 30 June 1987 (Giudice, Bujaroski, Naumovski, Faiola), the limitation period expired 30 June 1993!. It expired at earlier times in respect of the other claims. It follows that if it is established that the plaintiff did know that personal injury had been suffered, was aware of the nature or extent of personal injury suffered and was aware of the connection between the personal injury and the defendant's act or omission either prior to 30 June 1993, or at a time before that date when proceedings might reasonably have been instituted, no order under s60G can be made because of the provisions of s60I(1). Similarly, no order under s60G may be made if the application is made beyond three years after the plaintiff became aware or ought to have become aware of all three matters listed in s60I(1)(a)(i)-s601(1)(a)(iii). The High Court has enunciated the principles to be applied in construing s60G and s60I in Dedousis v The Water Board2, Harris v Commercial Minerals Ltd & Ors3 and Brisbane South Regional Health Authority v Taylor+. Gleeson CJ helpfully analysed and applied Dedousis in Drayton Coal Pty Ltd v Drain'. It is unnecessary to restate the principles to be derived from those authorities. The Court will address each appeal in turn. NICOLA GIUDICE 406982/96 Gallen DCJ made an order extending time until 13 October 1994 for the filing of a statement of claim filed on 12 October 1994. His Honour gave no reasons for his decision. On that ground alone leave to appeal must be granted®, and the appeal allowed. In such circumstances this Court is empowered to determine the 1. S14(1)(b) Limitation Act 1969. S18A(2) does not apply as the cause of action accrued before 1 September 1990 (see s18A(1)(b)). 2. (1994) 181 CLR 171. 3. (1996) 186 CLR 1. 4. (1996) 70 ALJR at 866. 5. (Unreported), Court of Appeal, 22 August 1995. 6. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. URJ — BHP STEEL (AIS) PTY LTD v GIUDICE (Mason P, Handley and Cole JJA) 3 matter for itself. Having heard the appeal, the appeal should be upheld, and the order of Gallen DCJ extending time set aside. Our reasons for that view are as follows. The worker was employed by BHP between January 1965 and June 1994. The proceedings were commenced on 12 October 1994 but claimed damages only in respect of acts or omissions alleged to have occurred prior to 30 June 1987, this date being nominated to preserve any rights the worker may have pursuant to s66 and s67 Workers Compensation Act 1987. It follows that all causes of action upon which the worker relies were statute barred prior to the commencement of proceedings. The worker relied principally upon the provisions of s60I(1)(a)(iii) but advanced a subsidiary submission based on subpara(ii). The worker's evidence established the following matters: (a) He had claimed workers compensation for hearing loss in 1978, 1984, 1985 and 1993. He was successful in the 1978 and 1984 claims; (b) his present solicitors had acted for him since December 1984; (c) he admitted that from about 1978 he was aware: (i) noise could damage his hearing; (ii) there were means to test whether hearing had been damaged; (iii) the employer could have used regular tests to determine if his hearing had been damaged; (iv) he could have been educated and warned about noise; (v) he could have been placed periodically in less noisy areas; (vi) something could be done to reduce the amount of noise emitted from the machines; and (vii) if he had been given ear muffs or ear plugs they could have protected his hearing. The statement of claim in this and all other matters is a stereotyped word processed document containing about thirty particulars of alleged negligence. Having regard to the admissions concerning his knowledge from 1978 it could not be held that the worker was unaware of the connection between the personal injury and the defendant's act or omission at the expiration of the relevant limitation period (30 June 1993) or at any time prior to that date, notwithstanding the particulars of negligence pleaded. The worker's case in substance was that there had been a failure to regularly test his hearing, a failure to provide a range of aids to prevent hearing damage, a failure to give instruction regarding usage of aids and a failure to maintain hearing protection aids properly. In truth each of the matters except the last was a matter of which the worker had been aware since 1978. Accordingly the worker failed to satisfy the requirements of s60I(1)(a)(iii). The last is irrelevant as the worker's evidence was that he did not wear hearing protection aids before February 1992. It was mildly suggested that the worker was unaware of the nature or extent of personal injury suffered prior to the expiration of the limitation period. However his evidence was that he first became aware of a hearing problem in the 1970's, thereafter was aware of it and indeed claimed worker's compensation for it. Whilst the worker was not aware of the precise results of audio metric tests, he plainly was aware of the nature of personal injury suffered by him, namely hearing loss, and in general terms of its extent. The worker has not satisfied the Court of any matter within s60I(1)(a) and no order can be made pursuant to s60G. 4 UNREPORTED JUDGMENTS There is a further basis upon which the application for extension of time fails. As McHugh J made clear in Brisbane South Regional Health Authority v Taylor? the applicant for an extension of time "has the positive burden of demonstrating that the justice of the case requires that extension". Enlivening the jurisdiction to grant an extension does not mean that the jurisdiction will be exercised. As Dawson J said in Brisbane South Regional Health Authority: "Once the Legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation."8 Here no endeavour was made to discharge the onus on the applicant by the calling of evidence. No submissions were advanced sufficient to persuade the Court that the onus had been discharged and that justice requires that the opponent have an extension of time. The evidence leads to the view that justice requires rejection of the application, quite apart from any question of onus, having regard to the staleness of the claim encompassing, as it does, events commencing in January 1965. DIMITRI BUJAROSKI 40682/96 Gallen DCJ extended the time for filing the summons until 3 February 1995. His Honour gave no reasons for his decision. On that ground alone leave to appeal must be granted, and the appeal allowed. The applicant opponent has been employed by BHP since 15 August 1972. His claim is for injuries allegedly grounded in negligence occurring prior to 4.00pm on 30 June 1987. The evidence disclosed that the opponent's hearing was tested in March 1982, September 1993 and May 1995 by his employer and on each occasion he was found to have normal hearing. He was also tested by a Mr Keck, industrial audiologist, who reported to the plaintiffs solicitors in February 1995 that he suffered a 2% binaural loss. Prior to that in May 1994, a Dr Gow measured a binaural hearing loss of 19.04%. On the basis of the audio testing results tendered, no injury was shown prior to 30 June 1987. The opponent gave no evidence sufficient to establish injury prior to 30 June 1987. His only evidence was that he noticed ringing in his ears at the end of the day and that from time to time people would ask him to pay attention. This evidence related to the period between about 1977 and "the early 1980's". This was at about the time of or prior to the audio metric tests showing his hearing was normal. It follows that the opponent has not established that an injury occurred prior to 30 June 1987. Absent injury prior to that date the claim necessarily fails and no question of a consideration of the matters within s60I or s60G arises. Leave to appeal should be granted, the appeal upheld, and the order of Gallen DCJ set aside. RISTO DIMOTRIOSKI 40684/96 Gallen DCJ made an order extending time to commence this action until 1 August 1994. His Honour said: "T am satisfied that he did become aware for the first time of a connection between his hearing loss and the alleged breaches of duty by the defendant at that conference in November 1994." 7. (1996) 70 ALJR 866 at 872. 8. (1996) 70 ALJR 866. URJ — BHP STEEL (AIS) PTY LTD v GIUDICE (Mason P, Handley and Cole JJA) 5 That presumably was intended as a reference to a conference between the opponent, his solicitor and a barrister on 6 July 1994 at which the barrister: "Told me that there were many things that the defendant could have done to protect my hearing and that many of these were set out as far back as in 1962 in a report by the Commonwealth Acoustic Laboratories. He said to me that the defendant should have regularly tested my hearing and provided hearing protection devices to me and taught me how to properly wear and maintain such devices, the company should have provided me with work in quiet areas after I had been exposed for several hours to loud noise, that the company should have taught me about the danger that excessive noise exposure posed to my ability to hear. It was only after this conference that I learned there were means by which the defendant could been (sic) prevented my hearing from being damaged if it had wished to." Gallen DCJ further said: "As to prejudice, I am satisfied that the applicant has discharged the onus that he bears in respect of showing that an extension of time would be just and equitable in the circumstances and that prejudice which would be caused by the granting of the extension of time to the defendant is not such that it would justify refusing the application. I am satisfied that there are documents which are in the possession of the defendant which are still available and that I am not satisfied that there is any problem caused by the granting of this application that the respondent to the application couldn't ordinarily overcome on the merits of the case, and therefore, I propose to grant the application and do so." It is apparent that Gallen DCJ grounded his grant of an extension of time upon the provisions of s60I(a)(iii). The opponent was employed by BHP between 1971 and 1982. He did not commence proceedings until 1 August 1994. All causes of action were thus long statute barred. According to the opponent his hearing was tested when he commenced with BHP in 1971 and again in September 1981. Following the latter test he received workers compensation. He gave evidence that "it was only thereafter that I developed an appreciation of the fact that I was affected by deafness". The opponent made a further claim for worker's compensation in 1985 but this was declined on the basis of "there being no further loss since examination in 1981". The evidence given by the opponent? makes clear that the negligence alleged against BHP is failure to safeguard the opponent's hearing by: (a) not regularly testing hearing; (b) not providing hearing protection devices; (c) not teaching the opponent how to properly wear and maintain such devices; (d) not providing quiet areas after exposure to noise; and (e) not teaching the opponent about the danger excessive noise posed to hearing. In his 1981 worker's compensation claim the opponent identified the equipment "allegedly causing industrial deafness" as being "noise from oxy cutting machine, oxy torch, furnace noise, jack picking". As Gleeson CJ made clear in Drayton the requirement that a plaintiff at a specified time be found to be unaware of the connection between his injury and the defendant's act or omission is not identical with the requirement that the 9. Appeal Book 8-9, paral6 and paral8. 6 UNREPORTED JUDGMENTS plaintiff was not aware of the cause of the injury. Here the evidence before Gallen DCJ established that the opponent knew the cause of the injury, namely, noisy machinery, but was not aware of the acts or circumstances allegedly constituting breach of duty. The opponent's evidence that he knew there was a law which meant that an employer could not cause him to lose his hearing, does not establish that he was aware at the relevant time of the connection between the personal injury and BHP's alleged acts or omissions. Accordingly whilst the application for leave to appeal should be granted because Gallen DCJ simply stated his conclusion without giving any reasons why the provisions of s60I(1)(a)(iii) were satisfied, there was sufficient material to satisfy a court that the opponent was unaware of the connection between the personal injury and the defendant's act or omission. His Honour addressed the question of whether it was just and reasonable in the circumstances to grant an extension of time. In addressing that question his Honour addressed the question of "prejudice" to BHP. He held that the prejudice to BHP was not such as to justify refusing an application, because BHP retained relevant documents, and because his Honour was not satisfied that any problems caused by granting the application could not be overcome. In approaching the matter in this way his Honour erred. Brisbane South Regional Health Authority makes clear that it is prima facie prejudicial to the defendant, to grant an extension of time in respect of a statute barred claim. Where a claim is brought in 1994 in respect of work conditions between 1971 and 1982, the existence of documents relating to the worker's health is not a sufficient basis for finding that the opponent has discharged the onus upon him of satisfying the court that it is just and reasonable to grant such an extension. The matters which would require investigation at the trial, based on the opponent's pressed particulars of negligence relate to regularity of testing and the reasonableness thereof, the nature of instruction given regarding hearing protection, the availability of and reasonableness of providing quiet areas, and instruction regarding dangers of exposure to noise. To be required to investigate in 1997 those matters prior to 1982 would be onerous indeed upon BHP. Weighing that with the prima facie position made clear in Brisbane South Regional Health Authority that it is upon the opponent to establish that it is just and reasonable to grant such an extension as an exception to the general provision that statutes of limitation are to be enforced, demonstrates that the onus was not satisfied. It is not a sufficient discharge of the onus simply to show that some records are available. In our view, although the question whether it is just and reasonable to grant an extension of time involves the exercise of a judicial discretion, not lightly to be overturned'!9, error in the exercise of that discretion has been shown. Accordingly, leave to appeal should be granted, the appeal should be upheld and the order of Gallen DCJ set aside. ATANAS SIMONOVSKI 40696/96 Gallen DCJ granted an extension of time until 24 May 1996 for the bringing of this action. His Honour did so being satisfied of the matters set forth in the s60I(1)(a)(iii), finding that the opponent first became aware of "the connection between his hearing loss and the matters alleged against the respondent as a result of a conference on 17 January 1996". This finding was made notwithstanding a 10. See House v The King (1936) 55 CLR 499. URJ — BHP STEEL (AIS) PTY LTD v GIUDICE (Mason P, Handley and Cole JJA) 7 successful claim for worker's compensation following audiometric testing in 1984. His Honour gave no reasons for finding that the requirements of s60G(2) were satisfied beyond stating: "T think it is just in the circumstances of this case to make the order sought." Those reasons are inadequate, and leave to appeal should be granted, and the appeal upheld. The allegations of negligence which the evidence of the opponent makes clear are pressed, notwithstanding the stereotyped statement of claim, are the failure to implement a hearing protection programme involving: (a) making the opponent aware of the danger of exposure to excessive noise; (b) regular testing of hearing; (c) providing hearing protection; and (d) providing instruction in the fitting, adjustment and maintenance of hearing protection. The opponent worked for BHP between 3 July 1973 and 17 July 1985 All causes of action were thus long statute barred. The opponent gave evidence that ear plugs were provided by BHP when he worked there, that he sometimes used them and that he knew they were designed to protect his ears from loud noises. The opponent also gave evidence that prior to September 1984 his ears were not tested by BHP, he was given no instruction regarding the hazards of excess exposure to noise, and that he did not learn of the alleged obligations upon his employer to implement a hearing protection programme which we have particularised earlier until a meeting with a barrister on 17 January 1996. Accordingly it was open to his Honour to find that the provisions of s601(1)(a)(iii) had been satisfied. Although not addressed, that evidence would justify a finding that s60I(1)(b) was also satisfied. When tested by Dr Gow of the North Coast Workers' Medical Centre in 1984, the opponents' hearing losses corrected for presbycusis were left ear 13.9%, right ear 8%. When tested by Mr Keck in 1996, at age 72, his losses adjusted for presbycusis on a comparable basis were 7.5% left ear and 11.3% right ear. Gallen DCJ gave no reasons why it was just and reasonable to grant an extension of time. Having regard to the onus upon the opponent, and the fact that a hearing of the claim would involve consideration of work conditions relevant to the particulars pressed between 1973 and 1985, in our judgment the opponent has failed to discharge the onus of establishing that it is just and reasonable to grant that extension. Eleven years have passed since employment ceased. It would be difficult, if not impossible, to separate the effect of activity at BHP, or breach of any duty particularised, upon his hearing from other possible causes particularly having regard to the inability of the defendant adequately to investigate the effect of events of which it would be unaware since 1985 which may have affected the opponent's hearing. Further, it was demonstrated in cross-examination that the opponent either had a distinctly faulty memory, or was an unreliable witness. This magnifies the difficulties upon the defendant to which we have referred. Accordingly, leave to appeal should be granted, the appeal should be upheld and the order of Gallen DCJ set aside. VASAL NAUMOVSKI 40698/96 On 8 November 1996 Gallen DJC granted an extension of time for the bringing of the action until 19 May 1996. His Honour said: 8 UNREPORTED JUDGMENTS "Tt seems to me that this is a case where it is just and equitable to grant the applicant an extension of time. I am satisfied that he did prima facie suffer injury at a time when he would need an extension and he became aware of the connection between his hearing loss and the matters alleged in the statement of claim against the respondent." These reasons are plainly inadequate. Leave to appeal should be granted, and the appeal upheld. The opponent worked for BHP between 7 June 1966 and 20 January 1989. The District Court proceedings were commenced on 24 May 1996 but are brought only in respect of acts or omissions alleged to have occurred prior to 30 June 1987. Thus all causes of action were long statute barred, the earliest for 23 years. The opponent grounded his application for an extension on s60I(1)(a)(iii). His affidavit in support asserted that it was not until a conference with a barrister on 17 January 1996 that he learnt that there was a relationship between his hearing loss and the alleged failure of BHP to safeguard his hearing by omitting to implement a hearing protection programme in particular by: (a) not making him aware of the danger of exposure to excessive noise; (b) not regularly testing his hearing; (c) not providing hearing protection; and (d) not giving instruction how properly to fit, adjust and maintain hearing protection. The opponent's evidence was that his hearing was not tested by BHP until 1982, and then in 1986, after each of which tests he received a compensation payment. Hearing protection in the form of ear plugs and ear muffs was provided from 1978 onwards, some twelve years after he commenced work, but he said he was not given adequate instruction in installing ear plugs, and the ear muffs were not adjustable until the mid-1980's. The hearing tests showed that in September 1982 he had suffered a 7.5% and 9.2% loss of hearing in the left and right ears respectively. By August 1986 there had been an increase in hearing loss in the right ear of 0.9% only. Thus the tested hearing loss some ten months prior to the expiration of the period in respect of which this claim is brought was 7.5% in the left ear and 10.1% in the right ear. He gave evidence that after his retirement in 1989 he was not exposed to excessive noise. However in 1994 Dr Gow measured losses corrected for presbycusis of 44.1 % in the left ear and 46.8% in the right. Mr Keck, in June 1996, measured losses in the left and right ears, adjusted for presbycusis, of 90.1% in the left ear and 83.7% in the right. The major hearing loss suffered, it seems, has occurred since termination of employment, and after the period ended 30 June 1987 in which negligence is alleged. It was open to the primary judge to find that the opponent was not aware until January 1996 of the connection between his deafness and the four particulars said to breach the obligation to establish a proper hearing protection programme. However, in our view there is no basis upon which Gallen DJC could properly hold that it was just and reasonable to extend the time for bringing of the action until 29 May 1996. That is because of the onus borne by the opponent to satisfy the Court that it is just and reasonable so to do, having regard to the prima facie position of prejudice suffered by the claimant in being forced to trial in an action long statute barred, which prejudice is magnified by the circumstance that the trial would involve investigation of working conditions and safety precautions in a period commencing more than thirty years ago. URJ — BHP STEEL (AIS) PTY LTD v GIUDICE (Mason P, Handley and Cole JJA) 9 Accordingly, leave to appeal should be granted, the appeal should be upheld, and the order of Gallen DCJ set aside. DANTE FAILOA 40694/96 On 8 November 1996 Gallen DCJ extended the time to commence proceedings until 1 February 1996. His Honour said: "T believe that in this case it is just and equitable that an order should be made for an extension of time. I am satisfied that the applicant had no real comprehension of the connection between his hearing loss and the alleged acts and omissions of the respondent until he saw his solicitors in August 1995." These conclusions are plainly inadequate as reasons for judgment. Accordingly leave to appeal should be granted, and the appeal upheld. The opponent commenced employment with BHP on 28 August 1961 and at the date of the hearing remained in its employ. Proceedings in the District Court were commenced on 13 February 1996 but only in respect of acts and omissions alleged to have occurred prior to 30 June 1987. All causes of action were thus long since statute barred. The opponent grounded his application for an extension on the provisions of s60I1(a)(iii). He alleged that BHP was negligent in that it should have implemented a system to protect his hearing, in particular by: (a) regularly testing his hearing; (b) supplying him with ear muffs and providing instruction regarding their wearing and maintenance; (c) advising of the risk of exposure to excessive noise; (d) supplying him with ear plugs which should have been expertly fitted and explanations given as to how they should be worn; (e) by regularly checking noise levels from ambient machines; (f) by baffling equipment by mechanical means; and (g) by giving him alternative work from time to time which did not expose him to noise. Those were the particulars of negligence pressed. The opponent gave evidence that his hearing was tested in 1978, 1992 and 1994. He was successful in a compensation claim in 1978 but further claims in 1992 and 1994 were unsuccessful. The opponent's evidence was that in 1977 he was aware that he had a hearing problem which over ensuing years became worse. He first noticed tinnitus in 1991. He gave evidence that from at least 1990 he was aware: (a) BHP should have tested his hearing regularly to make certain his hearing was not further damaged; (b) he was aware that ear plugs or ear muffs could protect his hearing, should have been provided to him (as they were) and that he should have been given instruction how to use them; and (c) that he should have been warned and educated about the effects of excessive noise. He was thus aware of the first four aspects of negligence alleged. Concerning the remaining three, namely that BHP should have regularly checked noise levels of machines, baffled them, and given him alternative work, his evidence was that it was not possible in the circumstances of this plant to remedy the noise level. His claim thus reduces to a claim for negligence based upon failure to give him work in a less noisy place, a claim which is de minimis. 10 UNREPORTED JUDGMENTS In those circumstances the court could not be satisfied that the opponent was unaware of the connection between his personal injury and the defendant's alleged acts or omissions at the expiration of the relevant limitation period. Accordingly no extension of time should have been granted. For the reasons previously stated the opponent did not successfully discharge the onus he bore pursuant to s60G(2). Any litigation of this claim would involve a consideration of matters in the work place going back to 1961, some thirty six years ago. That highlights the prejudice which the claimant would sustain and mitigates against any finding that it would be just and reasonable to grant an extension of time. Accordingly, leave to appeal should be granted, the appeal should be upheld, and the order of Gallen DCJ set aside. FORMAL ORDERS In each of the six matters, the Court makes the following orders: 1. Leave to appeal granted. 2. Appeal upheld. 3. Orders of Gallen DCJ set aside. 4. The notice of motion for an extension of the limitation period be dismissed. 5. Each opponent is to pay the costs of the notice of motion before Gallen DCJ, and the costs of the proceedings in this Court, but in relation to the costs in this Court is to have a certificate under the Suitors Fund Act. In each of the six matters, the Court makes the following orders: Leave to appeal granted. Appeal upheld. Orders of Gallen DCJ set aside. The notice of motion for an extension of the limitation period be dismissed. 5. Each opponent is to pay the costs of the notice of motion before Gallen DCJ, and the costs of the proceedings in this Court, but in relation to the costs in this Court is to have a certificate under the Suitors Fund Act. RYN Counsel for the claimant: J D Hislop QC / J Watson Solicitors for the claimant: Sparke Helmore Counsel for the opponents: M Thompson Solicitors for the opponents: Maurice May & Co.