Hamilton & Thomas [2008]

FAMILY LAW - APPEAL – PROPERTY – 15 years of premarital relationship followed by 5 years cohabitation post marriage – Wife’s appeal against property division giving her 45% of the non-superannuation assets, representing 40% based on contribution and a 5% adjustment for s 75(2) factors – At trial both parties conceded that initial contributions should be measured not at the date of the commencement of the relationship but at the date of marriage when the parties began to commingle finances – The trial judge’s conclusion of a contribution split at 60:40 in favour of the husband unsustainable – An appropriate division taking into account the parties’ contributions was 55:45 in favour of the wife – This capital disparity and the capacity of each of the parties to adequately support themselves meant no s 75(2) adjustment was appropriate – The extent of the trial judge’s consideration of the wife’s gambling when weighing up s 75(2) factors was unclear, however any adverse consideration was not appropriate having regard to the findings that the gambling losses were relatively modest and an accepted part of the parties’ lifestyle – Appeal allowed

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) The appeal be allowed.

(2) Orders 1, 3 and 4 of the orders made by the Honourable Justice Le Poer Trench on 7 September 2006 be varied by substituting the sum of $148,062 for the sum of $66,231 appearing therein.

(3) The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

(4) The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as HAMILTON & THOMAS.

Appeal Number: EA 104 of 2006
File Number: SYF 2071 of 2004

Appellant

And

Respondent

REASONS FOR JUDGMENT

1. This is the wife’s appeal against property orders made by Le Poer Trench J on 7 September 2006. His Honour concluded that a pool of assets of approximately $820,000 exclusive of superannuation should be divided as to 55% in favour of the husband and 45% in favour of the wife. The parties were to retain their respective superannuation entitlements (the husband approximately $375,000 and the wife approximately $130,000).
2. By her Amended Notice of Appeal, the wife sought to increase the amount she was to receive from the pool of assets from $66,231 to $155,000 plus a further $70,000 from the husband’s superannuation entitlements.

BACKGROUND

1. The husband was born in 1949 and the wife in 1952. They commenced a relationship in 1984 and married in January 1999. They finally separated on 1 July 2003, approximately 4 and a half years after their marriage.
2. From 1985 until 1994, the husband stayed several nights per week at the wife’s home. When the husband stayed at the wife’s property prior to the marriage she provided the food. The husband would bring wine. From time to time the husband contributed about $20 to the cost of food in the wife’s household. In about 1990 the wife suggested the husband should increase the contribution to about $40 a week which he agreed to and did, however he did not pay it on a regular basis.
3. From 1994 until 1997 the wife commenced to stay overnight with the husband at his home on occasions, and in March 1997 she moved into that home where the parties resided throughout their marriage until separation.
4. The trial judge found that in 1985 the husband had an interest in the property at S, a motor vehicle, some shares, superannuation, and an interest in a small industrial bay near W which was sold in 1998 for approximately $10,000.
5. His Honour found that in 1985 the wife had an interest in a unit, a vacant block of land, some furniture, household effects, superannuation, an AMP life policy, and a small share portfolio.
6. The wife was employed as a nurse, receptionist and practice manager and the husband was employed as a civilian public servant.
7. His Honour found that at the time of marriage the husband owned a property worth $360,000 subject to a mortgage of $180,000. He also had an equity in the another property worth $80,000, furniture, a motor vehicle worth $23,000, some gold coins, records, cassette tapes and compact discs, and his superannuation interests.
8. At the time of the marriage the wife’s unit was worth $350,000 and was unencumbered. She also had an interest in another property which she sold in March 2001 netting about $18,500. She had furniture and an interest in the family company which had been established by her father as part of his estate planning. His Honour also found that in March 1997 prior to the marriage when the wife moved into the husband’s property, she had $26,000 in savings. She spent $24,000 of those funds on improvements carried out at the husband’s property.
9. At the time of the trial, the wife was earning $850 per week before tax and the husband, $1,551 per week before tax.

THE TRIAL JUDGMENT

1. After setting out the background matters, many of which we have already alluded to, the trial judge identified what his Honour described as “issues of fact to be determined”. They were:
   1. the parties’ pre-marriage cohabitation.
   2. the extent of the wife’s gambling.
   3. the extent of the husband’s gambling.
   4. the losses, if any, arising from the husband’s share trading.
   5. was the Verada motor vehicle funded by the wife’s employment.
2. After citing passages from G and G (1984) FLC 91-582; (1984) 9 Fam LR 969, Nemeth and Nemeth [1987] FamCA 12; (1987) FLC 91-844, Beneke v Beneke (1996) FLC 92-698; (1996) 20 Fam LR 841, and L and L (Unreported, Full Court of the Family Court of Australia, Fogarty, Baker and McCall JJ, 8 June 1994), his Honour said:
   1. The clear conclusion arising from the above referred to cases is that cohabitation is not a necessary ingredient in order to consider pre-marriage contributions. In this case I find there is a sufficient connection between the parties’ pre-marriage contributions and their marriage. I find that the facts of this case require me to take into account the parties’ contributions as defined under section 79(4) from September 1985 to the date of the trial.
   2. In the circumstances I find that it is not necessary to determine whether the parties lived in a de-facto relationship or otherwise. I find that the nature of their relationship, as disclosed by the evidence, was such that justice requires that each of the parties’ contributions made since September 1985 should be taken into account in making a determination under section 79 of the Act. In particular the exclusive nature of their relationship; the periods of time they spent living in each others properties; the provision of support one for the other; the public face they each intended to portray, their proposal for marriage in 1989 subsequently thwarted by family attitudes are all matters which led me to this decision.
3. His Honour then turned to an issue relating to the wife’s gambling. As his Honour said, the husband asserted that the wife had withdrawn money from the parties’ joint accounts and lost the money on poker machines, whilst the wife asserted that while she played poker machines, her loss of money in that pursuit was modest in the scheme of the parties’ financial circumstances. In turn she identified that the husband had been involved in gambling on dogs and horses as well as playing poker machines and in addition had made substantial losses in share trading.
4. His Honour found that the parties spent much of their time socialising at an Ex-Servicemen’s Club, some 80 metres from their home. They also visited two other clubs regularly. His Honour concluded from an examination of the records produced that the wife’s losses were in the region of $100 per week from the date of marriage to the date of separation. He concluded that the husband’s losses from gambling were not at the same level as the wife, but did “counter weigh to some extent the wife’s losses”.
5. His Honour identified that the husband’s share and property trading between 1988 and 2004, in partnership with the wife, lost about $90,000, but his Honour was not satisfied that the husband had embarked on a course of action to lose assets or had been reckless, wanton or negligent in any of his share investments.
6. Finally his Honour resolved the issue between the parties concerning the provision of the wife’s motor vehicle, concluding that whatever benefit the wife received as a result of her employer leasing the car for her was marginal if anything.
7. His Honour then turned to the issue concerning the matters to be included in the pool of assets to be divided between the parties and determined that the pool was as follows (at paragraph 111):

The balance sheet ($)

1. Wife’s unit 410,000

2. Contents of wife’s unit 5,000

3. Husband’s property 540,000

4. Contents of husband’s property 2,000

5. Wife’s CBA account 430

6. Wife’s investments 17,705

7. Wife’s Mitsubishi motor vehicle 5,000

8. Wife’s jewellery and spoons 4,500

9. Husband’s ANZ account – * nil 0

10. Add back husband’s payment of penalties

and interest to the ATO 16,681

11. Add back settlement monies from

husband’s property 22,915

12. Husband’s shares (F13) 14,122

13. Husband’s wine collection 5,000

14. Husband’s sporting memorabilia 11,295

15. Husband’s records and CDs 5,000

16. Husband’s gold nuggets 3,300

17. Husband’s VW – nil 0

18. Wife’s paid legals (part of current home loan) 103,367

19. Husband’s paid legal (part of loan) 48,992

Total $1,215,307

Liabilities ($)

1. Mortgage (wife) 158,096

2. Colonial Bank (joint) 74,299

3. Wife’s accountant 11,595

4. Husband’s mortgage 151,000

5. Husband’s accountant’s fees 2,000

Total $396,990

Net Pool A ($)

Assets 1,215,307

Liabilities 396,990

Total $818,317

Asset Pool B ($)

1. Wife’s superannuation 128,377

2. Husband’s superannuation 373,195

Total Superannuation $501,572

1. It is convenient to note that there is no challenge to the conclusions reached by the trial judge relating to the size of the asset pool.
2. Having established the pool of assets, the trial judge then moved to make findings relating to the parties’ contributions. His Honour first made findings about the capital the parties had at September 1985. He then, under the heading “Contributions of the husband”, identified the husband’s taxable income from 1 July 1985 to 30 June 2003 in the sum of $786,741. His Honour then stated that the husband provided accommodation to the wife from early 1997 to separation, enabling her to rent her property. His Honour noted that the husband had been a successful share trader prior to the marriage. His Honour said:
   1. The husband contributed as a home maker. He did some cooking. He was involved in some household maintenance. The parties paid for the lawn to be mowed and the husband’s ironing to be done. Additionally because the wife had a back problem the parties hired cleaners who came to the house once a fortnight. The wife did most of the cooking and the clothes washing.
3. As to the contributions of the wife, his Honour indicated that he had difficulty in determining her income from 1985 until the date of the marriage as records for several years were not available. Over the 12 of the 18 years covered by the period examined for the husband, of which records were available, the wife earned approximately $380,000 which included rental from the wife’s unit after 1997. His Honour concluded:
   1. It seems reasonable to accept that the husband’s taxable income earned during the cohabitation was significantly greater than that of the wife.
4. His Honour also identified that the wife had provided accommodation for the husband for four or five nights per week from 1985 until 1997.
5. As to the wife’s role as a homemaker, his Honour said:
   1. The wife contributed as a home maker during the cohabitation. This largely consisted of cooking and clothes washing. Until the wife moved into [the husband’s property] with the husband each seemed to attend to their own washing and ironing. The husband shared [his] house with his mother until she moved to a nursing home. Once the parties lived [at the husband’s home] together it seems that the wife mainly attended to the cooking and clothes washing. The husband paid for his ironing to be done. Cleaners were engaged for the [...] property. The wife also did gardening ...

...

1. When the wife moved into the property ... I accept she expended most of her then savings of $26,000 on renovations to the property. Most of this sum had been saved during the cohabitation and therefore the contribution is dealt with by taking into account the savings the wife had at the date of commencement of the relationship together with her income generated during the relationship.
2. His Honour’s conclusion as to contributions was as follows:
   1. Having weighed up all of the parties’ contributions I conclude that the contributions favour the husband. The areas of most significance are in the initial contributions and the husband’s income. The wife’s home maker contribution I judge to be greater than the husband. The husband’s inheritance of his share of his mother’s house ... is significant. A significant contribution was the interest free loan provided to the wife by her father in relation to the [wife’s unit]
   2. I determine that the contributions favour the husband in the ratio 60% to the husband and 40% to the wife. This means of the parties’ net property (not including superannuation) the husband should receive $490,990 and the wife $327,327 based upon their assessed contributions.
3. His Honour then turned to the issue of contributions towards superannuation. His Honour observed that the husband had been in his fund for more than 40 years. The unchallenged finding was that the husband has approximately three times as much superannuation as the wife. The trial judge concluded that a division of superannuation based on contribution would equate to the difference in the parties’ superannuation entitlements as they lie. Accordingly, the trial judge determined to make no adjustment to the superannuation.
4. In then determining whether to make any further adjustments by reason of s 75(2) factors, the trial judge noted that the wife had an interest in her father’s family company worth $179,000 which would not be accessible until after her father’s death. His Honour found that the husband had long service leave entitlements of $51,000 and a greater income earning capacity than the wife. He noted the age of the parties and concluded that there was no evidence to suggest that either would not be able to work well into their 60s. His Honour said at paragraph 155 without any further explanation, “I take into account my findings in relation to the parties’ gambling” and then concluded that there should be an adjustment of the main pool of assets of 5% in favour of the wife.
5. The final adjustment ordered by the trial judge was that the wife would receive 45% of what was described as the main pool of assets, giving her an entitlement to $302,012 plus retaining her superannuation.

THE APPEAL

1. By her Amended Notice of Appeal, the wife sought to argue:
   1. that his Honour erred in law in failing to provide adequate reasons for his decision including but not limited to:

1.1 his determination as to the respective contributions of the parties in relation to their superannuation interests;

1.2 the reasons for which he determined that the gambling of the parties was relevant, what role it played in his decision, how he took it “into account” in considering section 75(2) Family Law Act 1975; and,

1.3 his determination of the appellant’s gambling losses were in the region of $100 a week from the date of the marriage until the date of separation.

1. That his Honour’s discretionary decision miscarried in that his Honour erred in finding that the appellant’s gambling losses were in the region of $100 per week from the date of marriage until the date of separation.
2. That his Honour’s discretionary decision miscarried in that having decided that it was unnecessary to determine whether the parties lived in a de facto relationship, or cohabited, from 1985, and not having otherwise determined that there was a pooling of resources from that time:

3.1 it was irrelevant and wrong to take into account as a contribution on the part of the respondent of the totality of his income from that time;

3.2 inconsistently, whilst examining income from 1985 his Honour considered evidence in relation to other contributions and potentially relevant matters from the date of the marriage; and

3.3 his approach wrongly had the effect of recognising as a contribution on the part of the respondent income setting off the significant contribution of the provision of accommodation and support by the appellant to the respondent for four to five nights per week for the 12 year period from 1985 to 1997.

1. That his Honour erred in that the cash adjustment in his orders failed to give effect to his Honour’s reasons.
2. That his Honour erred in failing to determine the value at the date of the hearing of the appellant’s interest in [K Pty Ltd].
3. That his Honour erred in taking into account the interests of the parties in 1985 to have regard to the appellant’s interests in [K Pty Ltd].
4. That having determined that he would assess contributions having regard to superannuation interests as a separate category of property, his Honour’s discretion miscarried by his bringing into account the initial superannuation interests of the parties in assessing their respective contributions to the other property.
5. That his Honour’s discretionary decision miscarried in that the effect of his Honour’s orders was as against the facts plainly and manifestly unjust.

DISCUSSION

Ground 1.1 – Adequacy of reasons re superannuation

1. The trial judge is clearly required to give reasons that adequately explain why significant conclusions have been reached. The extent to which reasons may be determined to be adequate or otherwise has been extensively discussed in a number of cases including Bennett v Bennett (1991) FLC 92-191; (1990) 14 Fam LR 397. In Bennett (above) the Full Court cited the judgment of Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 where his Honour said at page 18:

The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:

(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or

(b) justice is not seen to have been done.

1. We are strongly of the view that the trial judge has adequately explained why he reached the conclusion that it would be inappropriate to make any adjustment relating to the parties’ superannuation entitlements. The parties’ marriage was of short duration. Their pre-marriage relationship was of a longer duration but at least the husband’s period of contribution towards his superannuation fund, if not the wife’s, far exceeded any period of time in which the parties were involved with each other in any economic basis. The trial judge identified that as the key factor as to why it would be inappropriate to make any adjustment to the superannuation and we see no basis for supporting the assertion that his reasons in explaining that were any way inadequate nor for interfering with his Honour’s exercise of discretion in that area.

Grounds 1.2, 1.3 and 2 – Gambling

1. The key findings relating to the wife’s gambling were that she lost in the region of $100 per week from the date of marriage to the date of separation (see paragraph 74). That was to be counter-weighed to some extent by the husband’s losses (see paragraph 77). Then at paragraph 155, weighing up a number of factors under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), the trial judge simply said “I take into account my findings in relation to the parties’ gambling”.
2. The subject of the wife’s gambling was the subject of much attention at trial (as was the husband’s) but there was little independent evidence other than Exhibit H3 from which his Honour relied upon to reach his conclusions about the level of the wife's gambling. Although counsel for the husband submitted that his Honour should have drawn inferences from the wife’s answers to questions in cross examination and found that the level of the wife’s gambling was between $240 and $300 per week, we do not consider the evidence was so clear that his Honour must have draw adverse inferences against the wife as submitted. Thus we do not conclude that his Honour’s finding about the level of the wife’s gambling can be successfully challenged.
3. We think there is some substance in the grounds relied on by the appellant. It is difficult for the parties or the appellate court to determine precisely what weight the trial judge placed on the gambling issue. It seems clear that his Honour concluded that there should be a lesser adjustment in favour of the wife because of the findings that her gambling losses exceeded those of the husband. The extent of that adjustment is not at all clear. In any event we conclude that trial judge has fallen into error because in the circumstances of this case, in our view, it was inappropriate to pay any attention to the gambling once the findings were that they were as modest as the trial judge found.
4. In De Angelis and De Angelis [1999] FamCA 1609; (2003) FLC 93-133; (1999) 30 Fam LR 304, Lindenmayer and Finn JJ observed:
   1. We agree that gambling is for some people a form of entertainment and that a party can be no more criticised for spending money on it than the other party can be criticised for spending money on sporting or other forms of entertainment...
5. Whilst their Honours then went on to say “however every case must depend on its’ own particular circumstances”, in our view, the circumstances of this case are apposite to the first observation, namely that for this family the gambling undertaken was no more than their normal form of entertainment and that the amounts involved were not so disproportionate as to, in our view, justify the trial judge in making any adjustment to the entitlements to the pool of assets of either of the parties.
6. Over the course of the marriage of some 4 and a half years, the wife’s losses at $100 a week would have totalled approximately $23,000. Offset as against those losses were the husband’s losses of an unidentified amount. The losses had to be viewed in light of two key findings, firstly that these parties had non-superannuation assets of over $800,000 and superannuation assets of a further $500,000, and further the finding at paragraph 131 that “it was part of their lifestyle to attend at clubs on a regular and frequent basis”.
7. In our view there was nothing so disproportionate in relation to the losses incurred by the parties in the lifestyle that they chose, that would make it appropriate for there to be an adjustment of the available capital upon the breakdown of the marriage. More is required than simply the existence of gambling losses. There needs in our view to be some element of wastage that is disproportionate to the positive contributions being made by each of the parties.

Ground 3 – Contribution finding

1. In the course of his submissions, Mr Richardson SC on behalf of the wife indicated that he took no issue with the legal principles discussed by the trial judge on the circumstances in which it is appropriate to take into account contributions made prior to marriage. The trial judge said:
   1. The clear conclusion arising from the ... cases is that cohabitation is not a necessary ingredient in order to consider pre-marriage contributions.

Then his Honour made the finding:

1. I find that the nature of their relationship, as disclosed by the evidence, was such that justice requires that each of the parties’ contributions made since September 1985 should be taken into account in making a determination under section 79 of the Act ...
2. Mr Richardson SC then submitted, and Mr Simpson SC on behalf of the husband appropriately conceded, that it was no part of the husband’s case to assert that he had provided any part of his income towards the joint benefit of the parties prior to them commencing living together either shortly or at the time of the marriage. In final addresses the following exchange took place:

HIS HONOUR: Why would I not then take into account that, for example, why could I not find that from 1985 the wife contributed her income to the relationship and that from the same time the husband contributed his income to the relationship? Why wouldn’t I find that?

MR SIMPSON SC: Because each was retaining the benefit of the majority of their income for their own purposes by consensual arrangement between the two of them. Now even if your Honour had a married couple who had consciously elected to do that, that would be a factor your Honour would take into account when your Honour determined what the contributions were as between the two of them ... But prior to [1999] your Honour really in terms of what they were doing for each other, they’re doing what the evidence discloses and otherwise they were retaining the benefits of their income for their own purposes.

1. In the husband’s summary of argument prepared for the trial Mr Simpson SC had said:
   1. It is common ground that until the date of the parties’ marriage in 1999 they maintained separate bank accounts and their respective properties were separately held.
   2. The contributions that each made to the other over the period of their relationship prior to separation were not so significant on either side as to warrant an adjustment of the property that each held immediately prior to marriage.

...

1. Subsequent to the parties residing together as husband and wife to the date of their separation, the net income of the husband significantly exceeded that of the wife.
2. In light of these concessions and the parameters set by the parties, it is our view that there is substance in the argument advanced by counsel for the wife that the conclusions reached by the trial judge as to contributions favouring the husband in the ratio of 60:40 are unsustainable. The trial judge identified the initial contributions of the parties and the husband’s income as justifying that outcome. When the initial contributions are measured not as at the date of the commencement of the relationship, but as at the date the parties each submitted was more appropriate, namely the date of the marriage when the parties each then commenced to commingle their assets and income, then the contributions clearly favoured the wife.
3. At the time of the marriage the husband’s assets consisted of:

Equity [D Avenue] $180,000

Equity [S property] $80,000

Motor vehicle $23,000

Total $283,000

In addition the husband had a shareholding, his records, cassettes and compact discs, and his gold nuggets.

1. The wife’s assets consisted of her unit worth $350,000 and her other property in which she had little equity at the time of marriage but which she sold in March 2001 netting $18,500.
2. Apart from this capital disparity, it was significant and relevant for his Honour to take into account that for the first 15 years of the relationship the husband had spent many nights each week at the wife’s home where she provided food, with the husband making a very small contribution towards the cost of that food, although he did provide wine. It was also significant to take into account that the wife had provided $24,000 towards the renovation of the husband’s property immediately prior to the marriage.

OUTCOME

1. Counsel for each of the parties agreed that rather than remit this matter for a retrial we should exercise our own discretion in the event that we found that the trial judge was in error. Neither party sought to lead any further evidence prior to the exercise of such discretion.
2. In our view an appropriate adjustment to the property pool as determined by the trial judge that adequately reflects the various contributions of the parties would be to divide the non superannuation pool as to 55% in favour of the wife and 45% in favour of the husband. Once that capital disparity is created, in our view, the factors to be taken into account under s 79(4)(e), frequently referred to as the s 75(2) factors, otherwise cancel each other out. The matters as identified by the trial judge and about which there seems there is little controversy, are the factors that favour the husband, namely:
   • the capital disparity created by our reassessment of the contribution entitlement; and
   • the wife’s prospect of ultimately receiving her entitlement in K Pty Ltd.

The matters that favour the wife include:

• the husband’s superior income earning capacity;
• the husband’s long service leave entitlement; and
• the husband’s larger superannuation entitlements.

1. Having regard to the duration of the marriage and the capacity of each of the parties to adequately support themselves, we are of the view that no further adjustment is appropriate for these factors and that an ultimate division of the non-superannuation assets as identified by the trial judge in the ratio of 55% in favour of the wife and 45% in favour of the husband, is an appropriate outcome to these proceedings.
2. It is unnecessary for us to deal with the balance of the grounds of appeal given the proposed outcome.
3. As the wife is now entitled to receive, by reason of these orders, net assets to the value of $450,074 in contrast to the sum allowed by the trial judge of $368,243, it will be necessary to increase the sum payable by the husband to the wife from $66,231 to $148,062.

COSTS

1. Counsel for the wife has sought an order for costs as against the husband or in the alternative a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) in the event that the appeal is allowed. Counsel for the husband has sought a certificate if the appeal is allowed. Given that the appeal is allowed on a question of law and as a result of an error on behalf of the trial judge, we are of the view that it is not appropriate that party/party costs be paid but rather that it is appropriate that each party receive the relevant costs certificate.
2. The orders of the Court will be as follows:
   1. The appeal be allowed.
   2. Orders 1, 3 and 4 of the orders made by the Honourable Justice Le Poer Trench on 7 September 2006 be varied by substituting the sum of $148,062 for the sum of $66,231 appearing therein.
   3. The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
   4. The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 18 January 2008