The Judicial Committee of the Privy Council Decisions

Dilworth Trust Board v. Counties Manukau Health Limited and Her Majesty's Attorney-General (New Zealand) [2001] UKPC 9 (7th March, 2001)

Dilworth Trust Board Appellant

(1) Counties Manukau Health Limited and Respondents

Lord Steyn

Lord Hoffmann

Lord Cooke of Thorndon

Lord Hope of Craighead

Lord Hobhouse of Woodborough

[Delivered by Lord Cooke of Thorndon]

 

1. This is another case arising out of the restructuring or privatisation in New Zealand of the arrangements for the performance of various activities previously undertaken by the Crown or public bodies. The ultimate issue in the case is whether the Dilworth Trust Board (Dilworth) which administers the well-known Dilworth educational trust is entitled to buy back all or any of a block of some 48.63 hectares (the Wiri land) acquired from it in 1973 under the Public Works Act 1928. Their Lordships have now to deal, however, only with an appeal by Dilworth and a cross-appeal by Counties Manukau Health Limited (Counties) in respect of rulings having the effect of allowing a proceeding by Dilworth to continue and defining the battle lines. The Wiri land has been vested in Counties under the Land Transfer Act since January 1994. Counties is a Crown Health Enterprise (a CHE) incorporated under the Companies Act 1993; all the shares in Counties are held by Ministers of the Crown; the establishment of CHEs was pursuant to section 37 of the Health and Disability Services Act 1993. At first Counties was established under the name of Manukau Health Limited. In 1997 the name was changed to the present one. In 1998 all CHEs came to be described as Hospital and Health Services; the description CHE remains usually convenient for the purposes of the present appeal and cross-appeal.

History

2. Although the issues now to be decided are limited, they are important for the present and possibly other cases, and it is necessary to go through the rather complicated history.
3. By notice published in the New Zealand Gazette of 20^th September 1973 the Minister of Works declared that, a sufficient agreement to that effect having been entered into, the Wiri land was taken for hospital purposes and was to vest in the Auckland Hospital Board from and after 24^th September 1973. At that stage the land was undeveloped. It has remained so ever since except for a clinic constructed by Counties in 1997 and an extension to the clinic comprising an elective surgery hospital, the construction of which began in late 1999. An application by Dilworth for an interim injunction to restrain the construction of that hospital was dismissed by the High Court on 9^th June 2000.
4. Apart from these uses, relatively very limited in area, their Lordships were informed by counsel that the only use of the land since its acquisition in 1973 has been for grazing. The filling of some low-lying land may have occurred and the Area Health Board had maintained, after taking over the land as successor to the Hospital Board, that substantial site development works were necessary over the whole or most of the land before any part of it could be used for a hospital. In the course of the argument before the Judicial Committee Mr Galbraith QC for Counties made some mention of the same point. Counties maintains that, as well as the clinic, the balance of the land continues to be required for its purposes. Dilworth suggests that Counties may have in mind using the land as an economic resource to provide profits or income through development or leasing not necessarily for its health-related or disability-related purposes. That, Dilworth says, would be contrary to Dilworth’s buy-back rights under section 40 of the Public Works Act 1981 hereinafter quoted.
5. At the time of the original acquisition the Auckland Hospital Board had a proposal for a major development on the Wiri land to replace the Middlemore Hospital. Dilworth alleges that as early as 1976 the Hospital Board had resolved not to establish a hospital on the land after all.
6. On 1^st February 1982 the Public Works Act 1981 came into force. As well as replacing the Act of 1928 the new Act, so far as relevant, introduced provisions for the offering back of land in certain circumstances. They were contained in section 40, which as amended reads:-

"40. Disposal to former owner of land not required for public work -

 

(1) Where any land held under this or any other Act or in any other manner for any public work -

 

(a) Is no longer required for that public work; and

 

(b) Is not required for any other public work; and

 

(c) Is not required for any exchange under section 105 of this Act -

 

the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority, as the case may be, shall endeavour to sell the land in accordance with subsection (2) of this section, if that subsection is applicable to that land.

 

(2) Except as provided in subsection (4) of this section, the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority, unless -

 

(a) He or it considers that it would be impracticable, unreasonable, or unfair to do so; or

 

(b) There has been a significant change in the character of the land for the purposes of, or in connection with, the public work for which it was acquired or is held –

 

shall offer to sell the land by private contract to the person from whom it was acquired or to the successor of that person –

 

(c) At the current market value of the land as determined by a valuation carried out by a registered valuer; or

 

(d) If the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority considers it reasonable to do so, at any lesser price.

 

(2A) If the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority and the offeree are unable to agree on a price following an offer made under subsection (2) of this section, the parties may agree that the price be determined by the Land Valuation Tribunal.

 

(3) …

 

(4) Where the chief executive of the department within the meaning of section 2 of the Survey Act 1986 or local authority believes on reasonable grounds that, because of the size, shape, or situation of the land he or it could not expect to sell the land to any person who did not own land adjacent to the land to be sold, the land may be sold to an owner of adjacent land at a price negotiated between the parties.

 

(5) …"

 

7. It is convenient to speak of the rights of former owners under the section as buy-back rights, but it has to be remembered that the right to an offer is subject to the various qualifications and exceptions contained in the section.
8. Pursuant to the Area Health Boards Act 1983, the Auckland Hospital Board ceased to exist and on 1^st December 1988 was replaced by the Auckland Area Health Board. The Wiri land was transferred to the Health Board, the certificate of title of the latter Board being dated 25^th February 1992. On 2^nd December 1993 Dilworth lodged a caveat against the title in view or anticipation of the transfer of the land to Counties. By clause 4 of the First Schedule to the Health Reforms (Transitional Provisions) Act 1993 Counties was required to register a caveat to protect Dilworth’s buy-back rights. Counties did not do so, alleging that this was unnecessary because of Dilworth’s own caveat.
9. Broadly speaking, CHEs provide government-funded health services. It will be necessary to recite their principal purposes later in this judgment. The new legal structure was introduced in 1993 by the Health and Disabilities Services Act already mentioned and the contemporaneous Health Reforms (Transitional Provisions) Act. Section 5 of the latter Act provided a mechanism whereby the assets or liabilities or both of the Crown or an Area Health Board could be transferred to the appropriate CHE under a proposal approved by the Governor-General by Order in Council. Their Lordships are not now called upon to determine any question concerning the (amended) proposal and Order in Council affecting the Wiri land. It suffices to note that the Wiri land was specified as land that was to be transferred to Manukau Health Limited, and that all liabilities of the Auckland Hospital Health Board or the Crown (for the purposes of an Area Health Board) immediately before the transfer date in connection with the transferred assets were also to be transferred. Some contingent liabilities were excluded from the transfer, but again this provision has not been the subject of argument. The transfer was approved to take effect from 1^st July 1993.
10. In 1997 Counties constructed a "Super Clinic" on part of the Wiri land. It is an ambulatory care centre, providing surgical and other medical services including outpatient and post-operative care in a day setting. It has no overnight facility. The building started in 1999 of an extension comprising an elective surgery hospital has previously been mentioned.
11. In the meantime Dilworth issued a proceeding in the High Court against Counties as sole defendant. The original statement of claim, dated 19^th June 1998, pleaded among other things that on 21^st February 1990 two named representatives of Dilworth attended a meeting with representatives of the Auckland Area Health Board in the course of which they made it known that Dilworth was interested in purchasing from the Board any land declared surplus to its requirements; that on or about 27^th March 1990 the Board announced that it had resolved to sell all but 22 hectares of the Wiri land as being surplus to its requirements; and that from April 1990 until September 1995 Dilworth persisted in attempts to persuade the Board and later Counties to acknowledge an obligation to offer back for repurchase land which was clearly surplus to its requirements. Then the original statement of claim pleaded that on 1^st September 1993 the chief executive of Counties wrote to Dilworth, saying that the only decision made so far was not to proceed with a replacement hospital on the land; an overall strategic plan would be completed in January 1994; it was extremely possible that other buildings would be required on the land. In summary the remaining allegations in the original statement of the claim were that, apart from the proposal for a super clinic, Counties no longer required the land for its purposes and at some stage in the past had and continued to have a statutory duty to offer to re-sell the residue to Dilworth at its then current market value or less.
12. Declarations were claimed accordingly. The terms of the first and principal declaration sought were:-

"(a) A declaration that the defendant is under a statutory duty to offer to re-sell to the plaintiff the residue of the Wiri land at current market value determined as at the date at which the defendant recognised or ought to have recognised that the land was then surplus to its requirements, or its present market value, whichever is the lesser value. "

It will be seen that the original statement of claim seemed to centre on allegations that, apart from the site of the clinic, the Wiri land was not required for Counties’ own purposes. But there were hints of an inherited obligation also, and among further particulars dated 5^th October 1998 Dilworth alleged, without prejudice to its ability to claim an earlier date after interlocutory enquiry, that as to 27 hectares Counties should have declared the Wiri land surplus to its requirements on or before 26^th March 1990. At that date the land was held by the Auckland Area Health Board. It was apparent therefore that Dilworth’s claim against Counties extended to an inherited obligation.

13. For Dilworth such an obligation upon Counties would have several potential advantages. It might overcome or mitigate the effect of clause 3 of the First Schedule to the Health Reforms (Transitional Provisions) Act 1993, about to be set out. It might even ultimately be found to apply to the whole of the land, not excluding the site of the clinic. And it might provide an early date – and hence a lower market price – at which an offer back should have been made. Possibly even as early as February 1982.
14. In their Cases lodged in the Privy Council proceedings both Dilworth and Counties treat the original statement of claim as asserting an inherited obligation imposing on Counties a statutory duty to offer back the whole of the Wiri land.
15. Clause 3(1) and (2) of the First Schedule to the Health Reforms (Transitional Provisions) Act 1993 provide:-

 

"(1) This clause applies to the transfer to a transferee under this Act or by another transferee of land or an interest in land that at the date on which this Schedule comes into force is subject to sections 40 to 42 of the Public Works Act 1981.

 

(2) Nothing in sections 40 to 42 of the Public Works Act 1981 shall apply to the transfer of land or an interest in land to a transferee (being a transfer to which this clause applies) so long as the land or interest in land continues to be used for the purposes of the transferee, but, if all or any part of the land or interest in land is no longer required for such purposes, sections 40 and 41 of that Act shall apply to the land or interest no longer required as if the transferee were the Crown and the transfer of that land to that transferee were not a transfer to which this clause applies."

 

16. In its statement of defence, dated 27^th October 1998, Counties pleaded inter alia that, in terms of clause 3(2) just quoted, section 40 of the Public Works Act applies only if all or any part of the Wiri land is no longer required for the purposes of Counties ("which has not occurred"); and that the vesting pursuant to the Health Reforms (Transitional Provisions) Act 1993 precludes the operation of section 40 of the Public Works Act in respect of any prior decision that may or should have been made by the Area Health Board.
17. In February 1999 Counties filed an interlocutory application for an order that Dilworth’s statement of claim be struck out on the ground that the statement of claim disclosed no reasonable cause of action. Alternatively for an order that a question be formulated for separate decision before trial. Essentially the suggested question was as to the interpretation of the above-quoted clause 3(2). Dilworth opposed the motion, relying among other factors on the need for discovery. It is as a result of the decisions on this motion that the present appeal and cross-appeal arise.
18. Since the hearing of this appeal, and since the preparation of this judgment, the London agents for Dilworth have notified the Registrar of the Privy Council that on 14 December 2000 the Royal assent was given in New Zealand to two further statutes, the New Zealand Public Health and Disability Act 2000 and the Health Sector (Transfers) Amendment Act 2000. The main provisions of each of these Acts came into force on 1st January 2001. The first of these Acts, by section 110(1), repeals the Health and Disability Services Act 1993, and section 5(1) states that in general terms it relates to, and reorganises, the public health and disability sector. The second, by section 4, renames the Health Reforms (Transitional Provisions) Act 1993, now to be called the Health Sector (Transfers) Act 1993, and make various changes. One such change, made by section 12, is that the First Schedule of the Act 1993 is amended by repealing clause 3 and substituting a more elaborate clause. One feature of the new clause is that sections 40 to 42 of the Public Works Act 1981 are not to apply to any public work land (as defined) so long as certain circumstances exist. In that context there is a reference to land held by a transferee "(regardless of whether or not those purposes are the purposes for which the land was acquired under the Public Works Act 1981 or under any corresponding former Act)."
19. It may be that the words just quoted are intended to confirm for the future the intention which, as will be seen, the Court of Appeal and their Lordships discern in the phrase "for the purposes of the transferee" in the now replaced clause 3(2). But that point need not be decided and argument upon it would not be appropriate in this appeal. The appeal must be decided on the legislation as it stood at the time of the Privy Council hearing in November 2000. Throughout this judgment all references to the current legislation are to be understood to be to the legislation as it then stood.

The New Zealand Judgments

20. In the High Court Counties’ motion was heard and dismissed by Robertson J. on 24^th March 1999. After reviewing the various arguments the learned judge said that he was not satisfied that the words used in a schedule to an implementation Act were sufficient to deny Dilworth its day in court; accordingly there was no basis for striking out. Counsel for Counties had not sought to pursue the application for a pre-trial determination, and Robertson J. said that he suspected "that such quick-fire approach is not going to be productive in the circumstances of this case". This has proved to be right.
21. Counties appealed from the refusal to strike out. In the Court of Appeal the case came before Thomas, Keith and Blanchard JJ. Their judgment was delivered by Thomas J. on 13^th July 1999. In the course of reciting the background facts Thomas J. said that it was accepted for the purpose of this proceeding that, at some point in time before Counties became the registered proprietor, the land was no longer required for hospital purposes and that it should have been offered back for sale to Dilworth. He said that two questions were quickly identified as requiring resolution. The first was whether the word "purposes" in the phrase "for the purposes of the transferee" in clause 3(2) refers to the purposes of Counties or is to be restricted to purposes for which the land was originally taken, or to a public work within the meaning of the Public Works Act. The second was whether the "option" in favour of Dilworth contained in section 40(2) continues to apply to the land, notwithstanding the terms of clause 3(2). The word "option" was taken from the partial analogy drawn by Lord Hoffmann in delivering the judgment of the Privy Council in Attorney-General v. Horton [1999] 2 NZLR 257, 261. The Court of Appeal proposed to provide a conclusive answer to the first question, but not to the second as questions of fact had arisen which made it imprudent to do so.
22. Since their Lordships are in substantial agreement with the Court of Appeal on the first question, it is convenient to reproduce the reasoning whereby the Court of Appeal disposed of it:-

"[17] Under the Health and Disability Services Act and the Health Reforms (Transitional Provisions) Act the statutory purposes for which CHE's were established is clearly wider than "hospital purposes". The objective of the restructuring legislation would be defeated if these wider purposes could not be pursued once land previously owned by the Area Health Boards had been transferred to the CHEs. Consequently, land held for public purposes, such as hospital purposes, is intended to be transferred to the newly created CHEs for the wider, but equally public, purposes of those entities. It would have made no sense for Parliament to have provided for the land held by Area Health Boards to be transferred to CHEs which are charged with the broad function of delivering health and disability services, if those CHEs were then to be confined to the narrower purposes or public work for which the land was originally taken.

 

[18] We have therefore concluded that the phrase "for the purposes of the transferee" in cl 3(2) is not to be given a restricted meaning. It is to be construed as meaning the statutory purposes of the CHEs; in this case, the purposes of Counties Manukau Health."

 

23. Thomas J. went on to comment on some of the issues raised by the second question and to explain why the Court of Appeal were not giving a definitive answer to it. Dilworth applied to the Court of Appeal and obtained with the consent of Counties leave to appeal to the Privy Council on the first question. Final leave to appeal was granted on 28^th October 1999. Counties cross-appeals seeking a determination of the second question which might have resulted in a striking out of the original statement of claim.

A New Statement of Claim

24. In the meantime the proceeding in New Zealand has undergone a transformation. The Court of Appeal had granted leave to Dilworth to amend its statement of claim. No time for doing so was fixed, however, and it was not until 12 July 2000 that a first amended statement of claim appeared. An order joining the Attorney-General as representing a number of Crown entities had been made in the High Court on 5^th July 2000. The Attorney-General is named as second defendant in the amended statement of claim and appeared by counsel as second respondent before the Judicial Committee.
25. Although the appeal and cross-appeal raise questions still relevant under the amended statement of claim, that document cannot itself be the subject of any adjudication by their Lordships in the present proceedings, so it need only be briefly summarised. Dilworth now plead against Counties three causes of action. First, that Dilworth had a statutory right to purchase the Wiri land under section 40 of the Public Works Act 1981 as at 1^st February 1982 or some later date before 1^st July 1993, as the land was no longer required for "hospital purposes" or any other purposes provided for in section 40(1); and that Counties had knowledge, either actual, constructive or imputed, of that right and holds the land on constructive trust for Dilworth. Second, that Counties is in breach of statutory duty because the liabilities of the Area Health Board or the Crown were transferred to it. Third, breach of statutory duty under clause 3(2) in that after the transfer of the land to Counties all or part of it was no longer required by Counties for its own purposes or for "hospital purposes".
26. Against the Attorney-General representing the Crown, Dilworth also alleges three causes of action, namely (i) breach of obligations of good faith and fidelity; (ii) breach of statutory duty in the period 1^st February 1982 to 1^st July 1993; (iii) negligence in breach of a duty of care to Dilworth to administer the Wiri land in accordance with the procedures laid down by section 40 of the Public Works Act 1981.

Disposal of the Appeal

27. As already indicated, the Court of Appeal were clearly right on the meaning in clause 3(2) of "the purposes of the transferee". The principal objectives of every CHE were laid down in section 11 of the Health and Disability Services Act 1993. Since 1^st July 1998 these provisions have been replaced by provisions defining the principal objectives of every hospital and health service. There are differences between the 1993 and the 1998 provisions; but they do not appear, at least at this stage, to be material for the purposes of the present case. It is sufficient to set out the current section 11:-

"[11. OBJECTIVES OF HOSPITAL AND HEALTH SERVICES--

(1) The principal objective of every hospital and health service is--

(a) To provide a range of health services or disability services, or both, to improve health outcomes and to enhance the health status of the people it serves; and

(b) To assist in meeting the Crown's objectives under section 8 by providing such services in accordance with its statement of intent and its service agreement with the Health Funding Authority and any other agreement for the provision of services.

 

(2) Every hospital and health service must meet its principal objective while operating—

(a) In a businesslike and effective manner; and

(b) On a not-for-profit basis.

 

(3) Without limiting subsection (1) or subsection (2), every hospital and health service has the following objectives:

(a) To exhibit a sense of social responsibility by having regard to the interests of the community in which it operates:

(b) To uphold the ethical and quality standards generally expected of providers of health services or disability services, or both, as the case may be:

(c) To be a good employer.

 

(4) For the purposes of this section, a hospital and health service operates on a not-for-profit basis if its annual net income covers all its annual costs (including the cost of capital).

 

(5) Subsection (2)(b) does not affect any obligation of a hospital and health service to pay—

(a) Income tax under the Income Tax Act 1994; or

(b) Specified health payments within the meaning of section OBI of that Act.]"

 

28. Section 2 of the same Act includes definitions of "disability services" and "health services", which need not be reproduced. Hospital Boards and Area Health Boards in their turn each had elaborately defined functions under section 4 of the Hospitals Act 1957 and then under section 9 of the Area Health Boards Act 1983. Those Acts may have been wide enough to include within the "hospital services" for which the Wiri land was taken a clinic such as has been established by Counties. It may be, too, that both Hospital Boards and Area Health Boards had purposes wider than hospital purposes in a limited sense. Be those aspects as they may, the language of section 11 of the Health and Disabilities Services Act 1993 is quite different and includes different concepts. Thus disability services are now expressly embraced, and there is the express requirement to "operate in a businesslike and effective manner". The original 1993 section had "To be as successful and efficient as comparable businesses that are not owned by the Crown".
29. These references to business cannot be construed as authorising CHEs or hospital and health services to engage in any business activity whatsoever. Mr Galbraith shrank from going so far. The current prescribed objective is to operate in a businesslike and effective manner, and on a not-for-profit basis, in providing health and disability services or both. To take an extreme example, it would not be permissible for a CHE to establish a casino. But what clause 3(2) unmistakably specifies are the purposes of the transferee, the CHE, not some possibly narrower purpose for which the land was initially acquired.
30. It is true, as argued for Dilworth by Mr. Cavanagh QC, that this can result in somewhat restricting the buy-back rights conferred on an owner by the 1981 legislation (which came into force nearly ten years after the Wiri land was taken from Dilworth). It is nevertheless an understandable result The purposes of the new publicly-funded organisations are not the same as those of their predecessors; yet the legislature was entrusting them with the delivery of health and disability support services to the community, and must have meant them to take over the properties needed for their purposes. Moreover, under the previous regimes statutory machinery was available whereby land taken for one public work could be used for another. Such procedures are unavailable to the new entities. They are not the Crown, nor are their projects public works. There is no ground for cutting down the natural scope of "the purposes of the transferee" or giving the phrase a strained interpretation limited to the purposes of prior holders or to any particular purpose that may have been designated on the original acquisition.
31. It may be noted that the various New Zealand statutes providing for a degree of privatisation have no common formula covering cases when section 40 of the Public Works Act may apply. A number were drawn to the attention of their Lordships. Section 24(4) of the State-Owned Enterprises Act 1986 provided:-

"Nothing in sections 40 to 42 of the Public Works Act 1981 shall apply to the transfer of land to a State


enterprise pursuant to this Act, but sections 40 and 41 of that Act shall after that transfer apply to that land as if the State enterprise were the Crown and the land had not been transferred pursuant to this Act."

 

32. Such terms appear to have been designed to make it clear simply that the mere transfer to a state enterprise was not to bring buy-back rights into play: see Attorney-General v. Horton [1999] 2 NZLR 257, 259-260. Similar terminology is to be found in the Local Government Act 1974, section 207(4); and the Energy Companies Act 1992, section 69(1). Broadly similar but simpler are the Conservation Act 1987, section 16A(7A) and the Reserves Act 1977, section 15(8). Another variant is the Irrigation Schemes Act 1990, section 9(4), which has the formula "continues to be used for the purposes of an irrigation scheme". Clause 3(2) of the First Schedule to the Health Reforms (Transitional Provisions) Act 1993 plainly has a wider reach than any of those provisions. The first limb of the clause has a function corresponding to that of section 24(4) of the State-Owned Enterprises Act 1986. It ensures that a mere transfer to a CHE does not activate buy-back rights. The rest of the clause at least ensures that, after a transfer, buy-back rights do not come into being for the first time unless and until all or any part of the land is no longer required for the CHE’s own statutory purposes. The argument that the differences in drafting between clause 3(2) and the other provisions is not significant cannot be accepted.
33. For these reasons Dilworth’s appeal against the Court of Appeal’s interpretation of "the purposes of the transferee" can only fail.

Disposal of the Cross-appeal

34. As the Court of Appeal said, the second question identified in their judgment and now the subject of the cross-appeal by Counties is more difficult. What is the position if, at the time of transfer to the CHE, a buy-back "option" had already arisen, even though one or all of the parties concerned may not have appreciated as much? Thomas J. in delivering the judgment of the Court of Appeal expressed the tentative view that the latter part of the clause 3(2) is prospective in that sections 40 and 41 will only apply if and when the land (or, presumably, part of it) is no longer required for the CHE’s purposes. But he conceded that it was arguable, on the basis of Attorney-General v. Horton, that Counties took the Wiri land subject to Dilworth’s statutory right, in the nature of an option, to repurchase. Mr Cavanagh told their Lordships that this argument is not dependent on Dilworth’s establishing that Counties had any actual or constructive notice of such a right.
35. For his part Mr Galbraith accepted the possibility (despite the pleading in Counties’ statement of defence) that Dilworth might have a remedy against Counties under what was called, in a memorandum agreed by counsel for Counties and counsel for Dilworth, as a notice-based cause of action or an in personam claim in terms of the amended proposal which transferred pre-existing obligations to Counties. He also suggested that Dilworth might have some right to damages against the Crown. He contended, however, that clause 3(2) is purely prospective, as the Court of Appeal tentatively thought, and that there should be a declaration accordingly. On this approach any inherited buy-back rights which Dilworth might have against Counties would not depend on clause 3(2). There is force in that argument, but the Court of Appeal were unwilling to rule definitively on it as questions of fact might be involved. Their Lordships are unconvinced that questions of fact could affect the true interpretation of clause 3(2). They have difficulty in seeing that clause 3(2) could be a source of what they have called an inherited right. But in this complicated case they think that the Court of Appeal were justified in a cautious approach. It would be inappropriate to interfere with the exercise of the Court of Appeal’s discretion at this pre-trial stage.
36. It is as well to add that the effect of "as if the transferee were the Crown" is another question which may require future consideration.
37. Accordingly the appeal and the cross-appeal are both dismissed. The parties should bear their own costs in the Privy Council.