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You are here: BAILII >> Databases >> Irish Court of Appeal >> Lawless v Technology University of the Shannon Midlands Formerly Athlone Institute of Technology & Ors (Approved) [2024] IECA 167 (28 June 2024)
URL: http://www.bailii.org/ie/cases/IECA/2024/2024IECA167.html
Cite as: [2024] IECA 167
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THE COURT OF APPEAL
APPROVED
Record Number: 2024/52 & 2024/53
High Court Record Number: 2023/681P
Neutral Citation Number [2024] IECA 167
Whelan J.
Costello J.
O'Moore J.
BETWEEN/
JOHN FRANCIS LAWLESS
PLAINTIFF/APPELLANT
-AND-
TECHNOLOGICAL UNIVERSITY OF THE SHANNON MIDLANDS FORMERLY ATHLONE INSTITUTE OF TECHNOLOGY, THE GARDA COMMISSIONER, SINEAD CASEY AND WESTMEATH COMMUNITY DEVELOPMENT LIMITED
DEFENDANTS/RESPONDENTS
JUDGMENT of Mr. Justice Brian O'Moore delivered on the 28th day of June, 2024
1. From June 2022 onwards the appellant ("Mr. Lawless") was actively seeking employment. He applied for the role of Assistant to the After Schools Coordinator in the Midlands Area; this was a position available with the fourth respondent ("Westmeath Community Development"). In an affidavit supporting his application for interlocutory orders before the High Court, filed on the 29th March, 2023, Mr. Lawless said that he arrived for an interview for this post conducted on behalf of Westmeath Community Development by the third respondent ("Ms. Casey"). Ms. Casey has since died.
2. Mr, Lawless swears that, towards the end of this interview, he was offered the position for which he had applied. He says (at para. 12 of his affidavit): -
"I say that we then engaged in a more casual conversation and [Ms. Casey] confirmed that the job would commence two weeks after I have cleared garda vetting. I say I asked about this and she said that Garda vetting involved checking your criminal record, if any. [Ms. Casey] said that one only failed Garda vetting if they were perceived as a danger to women or children. I confirmed that I had some convictions, but that they were not of that ilk and as far as I was aware were in the process of being spent. I say I then gave her my driving licence to copy so the vetting process could commence, happy in the knowledge based on our conversation any potential issues were not referable to my circumstances."
3. Mr. Lawless was then sent a link to a form which he then completed. He did not disclose the fact that he had been convicted of criminal offences on two occasions. He said that this was on the advice of the Citizens Information website and of Seetec. He claims that he understood the convictions to be spent and therefore not ones which he was obliged to disclose.
4. On the 25th October, 2022 Mr. Lawless was asked by Ms. Casey to submit a further vetting application, which he did.
5. The National Vetting Bureau of An Garda Síochána conducted searches on the 30th January, 2023. They provided the results to Westmeath Community Development. The results, as reported, were that Mr. Lawless had three convictions. They were reported to be:-
(a) Conviction on the 14th June, 2012 at Roscommon Circuit Court for handling stolen property, with a sentence of three years suspended for three years;
(b) Conviction on the 19th March, 2014 at Roscommon Circuit Court for handling stolen property, with a sentence of three years suspended for three years;
(c) Conviction of the 21st May, 2014 at Cork Circuit Court for making gain or causing loss by deception, with a sentence of 18 months suspended for 18 months.
6. In fact, the first of these convictions was entirely erroneous. Mr. Lawless had never been convicted in June 2012 of handling stolen property, in Roscommon Circuit Court or any other court. He had, however, the convictions described at (b) and (c) of the preceding paragraph.
7. On the 3rd February, 2023, Mr. Lawless was informed by Westmeath Community Development that: -
"As you are aware from our job advertisement, the position that you applied for is subject to garda vetting. The results of this vetting make you an unsuitable candidate for the job of assistant to the after schools coordinator."
8. Mr. Lawless queried this by email of the 7th February, 2023. On the 13th February, 2023 he wrote again to Westmeath Community Development stating: -
"The said job position was granted to me by Sinead Casey on or about September 2022. The position was to start two weeks after garda vetting report and that time is now closely approaching. I note the contents of your letter seems to attempt to imply conditions on the job offer by Sinead Casey to me Francis Lawless which I accepted, which is not the case. I need the start date by 12 noon on Tuesday 14 of February 2023. In the event of not received the start date I would have no choice but proceed to issue legal proceedings, to commence the start date."
9. On the 18th April, 2023 the National Vetting Bureau of An Garda Síochána wrote to Westmeath Community Development, stating that they had withdrawn the original disclosure and asked for this to be deleted from the records of Westmeath Community Development. A fresh disclosure was sent, which correctly set out Mr. Lawless' criminal record.
10. Mr. Lawless makes two essential complaints about this whole episode. Firstly, he says that he was offered the job (and accepted the post) in his interview with Ms. Casey. The only way in which he could be denied the job, Mr. Lawless maintains, was if the garda vetting procedure disclosed convictions which suggested that he was "a danger to women or children."
11. Secondly, Mr. Lawless understandably complains that the garda vetting procedure was inaccurate, and stated wrongly that he had a 2012 conviction which simply never occurred. The gardaí have never explained how it was that this serious error came to pass. In an affidavit of Inspector Marisa Costello, sworn on behalf of the Garda Commissioner, an explanation was given as to why the re-check within the National Vetting Bureau took place; it was a response to litigation commenced by Mr. Lawless. However, it remains a mystery as to how what Inspector Costello describes as "a discrepancy in the vetting disclosure..." happened.
12. A number of other aspects of Mr. Lawless' job application are set out in an affidavit of Frank Murtagh, sworn on behalf of Westmeath Community Development. Mr. Murtagh avers that the advertisement for the role for which Mr. Lawless applied contains the following statement: -
"Applicant should supply suitable character references and be prepared to complete a garda vetting application form."
13. It is difficult to see what this adds to the account provided by Mr. Lawless. Mr. Lawless has never denied that garda vetting was to be carried out. Instead, he has set out the representations which (he swears) were made to him by Ms. Casey about the sort of convictions which (if disclosed by the vetting process) would lead to him not getting the position for which he had applied. In dealing with this evidence from Mr. Lawless, Mr. Murtagh says (at para. 14 of his affidavit) the following: -
"I say that, subsequently, the plaintiff had a meeting with the third named defendant herein and they discussed the role that had been advertised and the plaintiff's qualifications. I say and believe that as a result of that meeting and the application made by the plaintiff, the third named defendant did offer the role in question to the plaintiff orally, but, as per the job advertisement, made it clear that it was subject to Garda vetting. I say that no job offer was unconditionally made to the plaintiff. I say that at all times the plaintiff knew that the job was only offered to him, subject to Garda vetting and, indeed, it is clear that he consented to this procedure by completing the Garda vetting form himself."
14. Neither in this section of his affidavit, or otherwise, does Mr. Murtagh engage with the very specific evidence of Mr. Lawless that he would only have "failed Garda vetting" if a certain type of conviction was disclosed. Undoubtedly, the fact that Ms. Casey has died provides an evidential problem for Westmeath Community Development. No note of the meeting has been exhibited by Mr. Murtagh and, indeed, none may exist. Mr. Murtagh does not cast doubt on Ms. Casey's authority to make the sort of representations that Mr. Lawless describes in his affidavit.
15. Mr. Murtagh does give two other important pieces of evidence. Firstly, he describes the actual convictions of Mr. Lawless as "two significant previous convictions..." Secondly, he says (at para. 40) that: -
"The only parties aware of the Vetting Disclosure were the National Vetting Bureau, your deponent herein, Geraldine Morrissey, the fourth named defendant's liaison person Peter Ormond and the plaintiff himself."
16. Arising from these facts, Mr. Lawless has issued two sets of proceedings. The first is the plenary summons in the proceedings under appeal, which were issued on the 16th February, 2023 and were the proceedings which caused the National Vetting Bureau to revisit its original vetting report. In these proceedings, Mr. Lawless seeks the following reliefs: -
"1. A Declaration that the Plaintiff is lawfully appointed to the position of Assistant to the After Schools Coordinator with the fourth named defendant and commence employment with the fourth named Defendant from Monday 20 February 2023.
2. Damages for the negligence, breach of contract, breach of duty including statutory duty by the first named Defendant in failing to have due regard for the personal circumstances of the Plaintiff in admitting the Plaintiff to an Accountancy course thereby causing irreparable loss and damage to the Plaintiff.
3. Damages for the negligence breach of duty including statutory duty of the second named Defendant by negligently conducting or publishing an incomplete and inaccurate Garda vetting check on the Plaintiff thereby causing irreparably reputational and financial loss to the Plaintiff.
4. Damages for the negligence, breach of contract of the third and fourth named Defendant in conducting a flawed interview process offering the Plaintiff a job and then denying him the right to take up that position on a flawed and prejudiced basis thereby causing irreparable stress loss and damage to the Plaintiff.
Exemplary damages for the egregious actions of the defendant."
Costs and interest are also claimed.
17. A separate set of proceedings were issued by Mr. Lawless in April 2023 against the Minister for Social Protection, Ireland and the Attorney General. The primary relief sought is described in the following way: -
"1. An order compelling the second and third named defendant to bring into law the Criminal Justice (Rehabilitative Persons) Bill, 2018."
18. Damages, exemplary damages, costs and interest are also claimed in those proceedings. The only relevance of these latter proceedings is that there was an application brought to consolidate the two actions. This was refused by the High Court (Kennedy J.) and that refusal has not been appealed.
19. In the current proceedings, three motions were issued. All were also refused by Kennedy J. in his judgment to which I have referred. One motion sought that three named individuals be placed on administrative leave pending the determination of the proceedings. The dismissal of that motion has not been appealed.
20. The two relevant motions, therefore, for the purpose of this appeal are the following:-
(a) A motion against Westmeath Community Development, seeking an order that Mr. Lawless be appointed to the position of Assistant to the After Schools Coordinator 'pending the determination of these proceedings'; and
(b) a motion against the Garda Commissioner seeking to restrain him 'from further publishing any information regarding the plaintiff's garda vetting pending the outcome of these proceedings.'
21. I will deal with each of these motions in turn.
(a) The motion against Westmeath Community Development
22. In a particularly detailed and well-structured judgment, the trial judge separately considered each of the motions brought by Mr. Lawless. He refused the motion against Westmeath Community Development seeking Mr. Lawless' appointment to the relevant position on a number of grounds. At paras. 57 - 62 inclusive the trial judge found that Mr. Lawless had failed to make out an arguable case that he was entitled to the order sought. In considering this application, the trial judge applied the requirement that Mr. Lawless show a strong arguable case, in accordance with Maha Lingham v HSE [2005] IESC 89. That standard is accepted by both sides as being the appropriate one.
23. In coming to this conclusion, the trial judge found Mr. Lawless' claim to have been offered the position in the terms he describes as inconsistent with the following factors: -
(a) Mr. Lawless' consent to the vetting process;
(b) Mr. Lawless' participation in the vetting process;
(c) Mr. Lawless' evidence that Ms. Casey had told him that the job would commence two weeks after he had cleared garda vetting;
(d) The terms on which the position was advertised;
(e) The terms of a manual relied upon and exhibited by the plaintiff, dealing with the position;
(f) The requirement in the relevant legislation for garda vetting, given that this was a publicly funded position.
24. On this last point, the judge expressed the view (at para. 61(f) ) of his judgment that: -
"Since the plaintiff has not discharged the onus of demonstrating a strong arguable case that there was an unconditional contract, there is no possible basis for requiring the fourth defendant to appoint him to the Position pending the hearing of the action. However, even if the interviewer had made an unconditional offer, any such offer would appear to have been unlawful, being in contravention of s. 12(1), which means that (unless the claim in the Second Proceedings is successful) it is difficult to conceive of circumstances in which a Court would order the appointment of the plaintiff to the Position and his sole remedy, if any, would likely lie in damages."
25. I do not entirely agree with the trial judge's suggestion that, if Mr. Lawless succeeded in the second set of proceedings this would necessarily override the provisions of s. 12(1) of the National Vetting Bureau (Children and Vulnerable Persons) Act, 2012. It will be remembered that the second set of proceedings seek orders directing that a 2018 Bill be brought into law. Mr. Lawless would not only have to succeed in those proceedings but also have the provisions of the 2018 Bill rendered retrospective for s. 12(1) of the 2012 Act not to have legal effect at the time that Mr. Lawless claims he was offered the position.
26. Section 12(1) provides: -
"12(1) A relevant organisation shall not -
(a) employ (whether under contract of employment or otherwise) any person to undertake relevant work or activities,
(b) enter into a contract for services with any person for the provision by that person of services which constitute relevant work or activities,
(c) permit any person to undertake relevant work or activities on behalf of the organisation (whether or not for commercial or any other consideration),
(d) in the case where the relevant organisation is a provider of any course of education, training or scheme, including an internship scheme, place or make arrangements for the placement of a person as part of such education, training or scheme, if a necessary and regular part of such placement requires the participation by the person in relevant work or activities,
unless the organisation receives a vetting disclosure from the Bureau in respect of that person."
27. Contravention of subsection 12(1) is an offence.
28. At the trial of the action, therefore, Mr. Lawless would have to establish that he was offered the position on the terms he has set out in his affidavit and also persuade the court that the making of such an offer was not unlawful and ineffective by reason of the provisions of s. 12 of the 2012 Act. I would not discount the ability of Mr. Lawless to establish the first of these propositions, in particular since there is no direct evidence available to Westmeath Community Development as to exactly what happened at the interview. However, even that proposition would be seriously challenged by reference to the other factors which the trial judge has identified, notably the need for garda vetting and Mr. Lawless' acceptance of that process. However, even taking Mr. Lawless' case in that regard at its zenith he faces the formidable obstacle of the terms of the legislation. This finding by the trial judge is not addressed at all in the written submissions of Mr. Lawless, or in his oral submissions on appeal. The finding with regard to s. 12 of the 2012 Act is sufficient to sustain the trial judge's conclusion that no strong arguable case has been made out by Mr. Lawless that he is entitled to be appointed (on an interlocutory basis) to the position which he seeks.
29. The trial judge also found that the motion against Westmeath Community Development should fail because Mr. Lawless had not established that damages would not be an adequate remedy. In a separate section of his judgment, commencing at para. 75, the trial judge found: -
"In any event, the court is satisfied that the plaintiff could be compensated by an appropriate award of damages if he establishes at trial that he should have been offered the position. It would be wrong to pre-empt the outcome of the proceedings in that respect. The balance of convenience does not justify the relief sought."
30. This finding is not challenged by Mr. Lawless on appeal. Instead, in his oral submission to the court Mr. Lawless argued that he would suffer irreparable harm because failure to occupy this position will result in the loss by Mr. Lawless of certain educational exemptions which he currently has. Those exemptions apply to his position as a trainee chartered accountant. Even if this is the case, this problem for Mr. Lawless could and should have been addressed by bringing on the proceedings for hearing much more expeditiously than he has. According to Mr. Lawless, he needs to have secured employment before the end of this year. He was refused the current position in February of 2023. This is also the month in which he issued the relevant proceedings. However, he has not delivered a Statement of Claim in these proceedings, nor has he taken any steps for directions that they be case managed in order to obtain an early hearing. By February 2023, the Chancery List (in which this action appears) was being run in such a way that case management directions were in most cases provided for the asking. Instead, Mr. Lawless has candidly conceded to the court that, had he succeeded in his interlocutory motion and obtained the position with Westmeath Community Development, he may not even have pressed on to trial as the proceedings would have served their purpose. This is a somewhat misguided approach towards the prosecution of this claim and does not justify the granting of the interlocutory relief which Mr. Lawless seeks.
31. In his written submissions, Mr. Lawless focuses on s. 16 of the 2012 Act.; in his oral submissions, he emphasised s. 15 of the Act. By reason of these provisions, Mr. Lawless says that the information in the vetting disclosure should have been confined to convictions which could impact the protection of children and vulnerable adults. He also says that the vetting disclosure should have been sent solely to the designated and trained liaison person who in the case of Westmeath Community Development was an individual called Peter Ormond. It should not have been circulated beyond Mr. Ormond.
32. Both of these submissions are misconceived. Even if they were correct, it is difficult to see how they would undermine the judgment of the High Court with regard to the strength of Mr. Lawless' case, and the adequacy of damages/balance of convenience. However, s. 15 of the 2012 Act relates to "specified information". As is submitted by counsel for the Garda Commissioner, specified information is a defined term which means: -
"Information concerning a finding or allegation of harm to another person that was received by the Bureau from -
(a) the Garda Síochána pursuant to an investigation of an offence or pursuant to any other function conferred on the Garda Síochána or by or under any enactment or the common law, or
(b) a scheduled organisation pursuant to subsection (1) or (2) of section 19..."
33. Such information must also be of a type: -
"As to reasonably give rise to a bone fide concern that the person may -
(i) harm any child or vulnerable person,
(ii) cause any child or vulnerable person to be harmed,
(iii) put any child or vulnerable person at risk of harm,
(iv) attempt to harm any child or vulnerable person, or
(v) incite another person to harm any child or vulnerable person."
There is, in fact, no such information here. The provision with regard to "specified information" is therefore of no relevance to the current proceedings.
34. On the other hand, "criminal record" is also a defined term, and means: -
"(a) a record of the person's convictions, whether within or outside the State, for any criminal offences ... or
(b) a record of any prosecutions pending against the person, whether within or outside the State, for any criminal offence..."
35. Records of convictions are therefore properly disclosed pursuant to s. 16 of the Act. The type of conviction caught by the 2012 Act is not confined to convictions which would give rise to concern about the safety of children or vulnerable persons. The disclosure is made, pursuant to s. 16, to the "relevant organisation". There is no prohibition, at least identified by Mr. Lawless, on the circulation of the vetting report to proper persons within the relevant organisation who have an interest in seeing it. In many, if not most, cases the liaison person responsible for communicating with the vetting bureau will not be the person deciding on whether an individual's record of convictions means that they will not be offered a particular position. That is likely to be a value judgment to be carried out by the person who is responsible for the employment of the individual, not the liaison person. That is not necessarily to say that an organisation has free rein to disseminate within itself records which it has received as a result of the vetting process. However, in this case the clear evidence of Mr. Murtagh is that the only people to whom Mr. Lawless' vetting report was made available are people who had a legitimate interest in receiving it.
36. I would therefore dismiss Mr. Lawless' appeal against the refusal of the motion seeking his immediate appointment, on an interlocutory basis, to the position with Westmeath Community Development. I will deal separately with a distinct aspect of that appeal relating to the costs of the motion.
(b) Motion against the Garda Commissioner
37. The trial judge also considered this motion by reference to whether or not Mr. Lawless had made out an arguable case, and separately by reference to the balance of convenience.
38. Given the prohibitory nature of this type of injunction, Maha Lingham does not apply and Mr. Lawless does not have to show that he has a strong arguable case in respect of the injunction sought. While the trial judge did refer (at para. 74) to Mr. Lawless' failure "to demonstrate a strong arguable case..." that does not appear to have been the standard which he applied in considering whether an arguable case was made out.
39. The trial judge found that no arguable case was established by Mr. Lawless on three grounds.
40. Firstly, it was found that there was inconsistency between the terms of the relief sought against the Garda Commissioner, which were very broad and without exception, and the fact that Mr. Lawless had submitted that he did not object to "lawful" vetting reports; para. 70 of the judgment. In itself, this is in my view sufficient reason to refuse the motion. The Commissioner does not want to carry out unlawful vetting reports and there is nothing in the evidence to suggest that he will do so. The fact that there was an error in the first vetting report produced in respect of Mr. Lawless is deeply unfortunate, and may yet result in relief being obtained by Mr. Lawless at the trial of the action. However, in terms of the ongoing carrying out of his functions by the Commissioner there is no basis to believe that (unless restrained by this court from doing so) the Commissioner will produce reports which are in any way unlawful.
41. Secondly, the order sought would prevent the Commissioner from carrying out the statutory function which he has of producing vetting reports in respect of Mr. Lawless. If Mr. Lawless, pending the trial of the action, were to apply for any position that required a vetting report to be produced by the Commissioner, the Commissioner would be prohibited from doing so by reason of the order sought in this motion. That is hardly in ease of Mr. Lawless, as in all likelihood this would simply frustrate his ability to obtain any position which required a vetting report from the gardaí. While Mr. Lawless claims in his written submissions that the reference by the trial judge to the decision of Clarke J. in Okunade v. Minister for Justice, Equality and Law Reform [2012] 3 IR 152; [2012] IESC 49 is misplaced, it is not explained either in Mr. Lawless' oral or written submissions why that is so.
42. Thirdly, the trial judge found that there is no need for the order as the legislation "requires the plaintiff's consent before any vetting process can take place in respect of him"; (Part 74 of the judgment). This is true. If Mr. Lawless wants to achieve the results which he seeks in the motion, namely to prevent the Garda Commissioner from producing vetting reports about him, he can simply refuse his consent to the vetting process.
43. Separately, the trial judge found that the balance of convenience did not justify an order restraining the Garda Commissioner from performing a statutory function, and that (regardless of the redress to which Mr. Lawless may be entitled to in respect of the original erroneous vetting report) "there is no evidence before the Court to suggest that there is any reason to anticipate future issues with regard to the way the Defendants deal with their respective obligations pending the hearing of these proceedings, meaning that there is no necessity or justification for injunctive relief at this stage"; (para. 76 of the judgment).
44. Mr. Lawless has not meaningfully engaged with these essential findings by the trial judge. Instead, in his written and oral submissions he has made the arguments which I have already addressed in the context of the motion against Westmeath Community Development. Mr. Lawless does make a complaint, notably in his oral submissions, to the effect that his ability to seek an appeal or a review of the original vetting report was frustrated in that he was not informed about his entitlement in this regard until after the relevant time period had passed. However, even if that complaint is well-founded (and I express no opinion on the point) this cannot justify the granting of either of the injunctions sought by Mr. Lawless against the relevant defendants.
Costs
Mr. Lawless has appealed the decision of the High Court judge that Mr. Lawless pay the costs of the relevant defendants in respect of the motions, though the amount payable to the Garda Commissioner was reduced by 50% having regard to the error on the part of the Commissioner in the first vetting report. In making the costs order which he did, the trial judge received separate written submissions on this issue. These submissions were made in the light of the judgment delivered by the trial judge on the motions. The trial judge, from para. 7 onwards, dealt with the submissions made to him. He quite understandably indicated a level of sympathy for the plaintiff. He found (at para. 9.c) that:
"It is unsatisfactory that the second defendant's original vetting report was incorrect and the second defendant should have rectified the issue more quickly once the issue emerged."
I agree with that criticism of the report of the Commissioner.
45. I also agree that no issue of public importance is raised in the applications the subject matter of the appeal (para. 9.a of the judgment), that there was no evidence suggesting that the error by the Garda Commissioner actually affected the outcome of Mr. Lawless' application (para. 9.d of the judgment) that the error justified the bringing of the motions (para. 9.e) and that Mr. Lawless should have engaged with the relevant defendants about the proposed applications before issuing them (para. 7 of the judgment). It should also be borne in mind that the relevant defendants had indicated at hearings before Dignam J. and before me (then sitting in the High Court) that the applications were bound to fail. This should have caused Mr. Lawless to reconsider whether or not to press on with them.
46. In his written submissions, Mr. Lawless challenged the trial judge's decision on costs by making the following arguments. I will now set out the individual submission, and my view on it: -
(a) There was an acknowledgment of a mistake by the Garda Commissioner and the error was rectified in a tardy manner. This is to do no more than repeat what the trial judge has already found. It does not follow that a mistake by the Garda Commissioner (given the factors identified by the trial judge, which I have just listed) does not mean that the Garda Commissioner should be awarded no costs against Mr. Lawless. Still less does it mean that Westmeath Community Development should not be awarded its costs against Mr. Lawless in respect of his unsuccessful application against it.
(b) Mr. Lawless submits that the vetting procedure applied by Westmeath Community Development was "fundamentally flawed" and not conducted by the authorised person. This is erroneous, for the reasons I have set out earlier in the judgment.
(c) Finally, it is stated that the issues raised on the proceedings "are issues of general public importance...". It is certainly the case that Mr. Lawless has raised issues about the construction of the 2012 Act. However, the terms of the legislation are clear, and no public benefit has been achieved by these proceedings. It is not as though some uncertainty or ambiguity in the legislation has been resolved as a result of the proceedings brought by Mr. Lawless. In addition, Mr. Lawless brought these proceedings not for the purpose of achieving any clarification of legislation for the public good but rather in order to obtain a benefit for himself.
47. I would therefore dismiss the appeals brought by Mr. Lawless in respect of both motions. My provisional view is that Westmeath Community Development and the Garda Commissioner be awarded the costs of the appeal in which each were involved. In the event that any party who wishes to argue for a different order, they should notify the Court of Appeal Office by 5pm on the 5th July, 2024. Should such notice be given, directions will be provided for the exchange of written submissions on the question of costs.
48. Whelan and Costello JJ. agree with this judgment.
Result: Appeal Dismissed