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S (A Child) [2010] EWCA Civ 219

Application for permission to appeal by mother against an order transferring residence of a child to the father, primarily on the grounds that there was no evidence to sustain the judge's change of attitude on the matter. Application refused.

The facts and the judgment under appeal are set out on Family Law Week here. This application to appeal followed that judgment and counsel for the mother submitted several criticisms of it, saying that the judge was plainly wrong in his conclusion and that the mother had been denied a fair trial. This second ground arose primarily from a refusal of an application to adjourn so as to recall the expert witness involved. Other criticisms included the judge's rejection of the stance of the NYAS guardian, the lack of reports on the suitability of the step-mother as primary carer and inconsistencies in the successive judgments.

Thorpe LJ, giving the lead judgment, reviews the judgment, acknowledging that on the face of it, it "seems questionable that an issue so important should have been decided on submissions only at a one day hearing" particularly in the light of the judge's expressed reservations about the father's prospects of success only three months earlier. However he found it significant that the case management directions in September, which clearly set out the evidence to be used in the December hearing and which were a "model of tight case management", had not been challenged at the time. He also agreed with counsel for the father that the written questions and answers put to the expert in preparation for the hearing did not "constitute such an obstacle or impediment as to require [counsel] to call for his attendance". Therefore this  "very clear, conscientious judgment" should stand. Wall LJ, in a supplementary judgment, strengthens the point concerning the September directions: 

"Those directions seem to me of critical importance and they are, as my Lord has indicated, model directions given by an experienced judge.  This court has said on many occasions that such applications, such orders can be challenged in this court, but if they are to be challenged they have to be challenged swiftly and they have to be challenged with good reason. "

This judgment is the subject of an article by Alex Verdan, QC. Click here to read the article.

Case No: B4/2010/0017

Neutral Citation Number: [2010] EWCA Civ 219

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 21st January 2010

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S (A Child) 

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(DAR Transcript of
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Ms Lorna Meyer & Mr Guy Spollen (instructed by Moore & Tibbits) appeared on behalf of the Applicant mother.

Ms Alison Ball QC & Mr Oliver Peirson (instructed by Morrisons) appeared on behalf of the First Respondent, the father.

Mr Justin Slater (instructed by NYAS) appeared on behalf of the Second Respondent, the child by his Guardian ad Litem.
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(As Approved by the Court)
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Lord Justice Thorpe:
1. The parties to this appeal are parents, both 42 years of age.  The marital history is unusual in that the marriage celebrated on 12 May 1996 was of the shortest duration, the mother leaving the former matrimonial home and achieving final separation in September 1997 at a time when she was bearing a child.  That child was born on 5 March 1998 and named A.  He is now nearly 12 years of age.

2. The first application by the father for contact was issued on 28 June 1999 and has led to a decade of litigation concerning the father's relationship with A, who has throughout been in the primary care of his mother.  Contact was initially established but subsequently sadly broke down.  The proceedings in the Coventry County Court resulted in a succession of judges having a hand in the case, either circuit judges or district judges, and it was not until 16 April 2007 that judicial continuity was established by the arrival of HHJ Bellamy in the case.  Every court order since then has been made by him.  He delivered a substantial judgment on 13 December 2007.  Thereafter the highly experienced child and adolescent psychiatrist, Dr Weir, was instructed to advise.  Dr Weir has made a speciality of highly conflicted contact disputes, and his instruction was therefore particularly appropriate.

3. HHJ Bellamy gave a further judgment on 13 November 2008, and on 17 December 2008 there commenced a further contested hearing, during the course of which the judge received the evidence of Dr Weir.  Unfortunately the second contested hearing proved to be long drawn-out, and difficulties within that court's calendar made it impossible for the judge to conclude the evidence before 29 May 2009.  His reserved judgment was given on 15 June 2009.  Although the judge at that stage was unable to direct any positive progress, an order of 7 July established a regime of sibling contact for A.  That regime foundered immediately, with failed attempts on three occasions in July leading to a further hearing and order of HHJ Bellamy on 29 July.  The order suspended the sibling contact pending a further hearing set for 25 September, and a programme was embodied in the July order for Dr Weir to deliver a further opinion and for each of the parties to put questions in writing to Dr Weir.

4. That was performed, and on 25 September the judge was faced with a position statement from the father, in which Miss Alison Ball QC and Mr Peirson, who have consistently represented the father, gave notice of his intention to commence an application for a residence order forthwith.  Accordingly the judge laid down a firm timetable and directions for the despatch of the application, which was issued some four days later.  The case management decision of 25 September provided for a hearing on 21 December.  The hearing was to be on submissions only, and all parties were to file their written submissions and authorities in support by 14 December. 

5. The hearing on 21 December did not proceed without oral evidence because of an application by Miss Lorna Meyer QC, who with Mr Guy Spollen has consistently represented the mother.  She wanted oral evidence from the father.  She wanted to cross-examine.  The judge allowed her to do so but only on practicalities and set out an arrangement whereby the father's evidence in chief would be led in the morning.  Miss Meyer would have the opportunity to take instructions over the lunch adjournment and would cross-examine in the afternoon.  At the conclusion of that court day the judge reserved and handed down his judgment on 4 January.

6. By that judgment he granted the father's application for the residence order.  It is a matter of no surprise that that bold conclusion led to a notice of appeal from the mother and, shortly thereafter, a similar notice from the NYAS guardian, who had been firmly opposed to the father's transfer application.  Those notices were considered by Smith LJ, who directed a hearing on notice with appeal to follow if permission granted, and that is the hearing which we conducted yesterday. 

7. Miss Meyer principally advanced the attack on the judgment below.  She said that the judge was plainly wrong to have reached the conclusion which he did.  Secondly she said that the mother had been denied a fair trial, as had the child, and then advanced what was essentially an attack on the procedure adopted by the judge in the court below.  The two-pronged attack seemed, to me at least, to place greater emphasis on the procedural aspect, although of course Miss Meyer never faltered in her submission that the judge was simply wrong to have ordered as he did.

8. So what then were her procedural criticisms?  Understandably and persuasively, she said that this was an absolutely fundamental hearing to determine a fundamental application.  It had proceeded without any oral evidence other than the limited amount allowed by the judge.  There was not a single written statement in support of the application for change.  There was no report or expert advice relevant to the shift of residence. 

9. All that, of course, could be said to be an attack on the case management decision of 25 September. 

10. Further and alternatively, Miss Meyer relied on the judge's conduct of the proceedings on 21 December when he refused her application for oral evidence, save to the extent that I have indicated.  Miss Meyer had invited the judge to adjourn the case for a much fuller investigation if, on submissions alone, he was minded to grant or to consider granting the husband's application. 

11. The judge overruled her despite her objections. In particular she stressed the importance of oral evidence from Dr Weir.  Dr Weir had on two previous occasions addressed the question of whether the husband should become the primary carer and answered negatively, absent some finding of the court of something akin to abuse on the part of the mother.  Since there had been no such finding, it follows, said Miss Meyer, that Dr Weir was against transfer and, accordingly, it was essential that he should testify.  There was an obvious obligation on the father's team to cross-examine him as to his written opinions.

12. We have not any transcription of rulings given by the judge on Miss Meyer's submissions other than an addendum to judgment, which was transcribed, when at the conclusion Miss Meyer invited the judge to deal specifically with his refusal to recall Dr Weir.  The judge said in the addendum:

"In arriving at the decision not to adjourn to enable Dr Weir to be recalled I had in mind a number of factors.  In particular I have received a substantial amount of evidence from Dr Weir, both written and oral, upon which I was satisfied that A has suffered harm and is at a risk of future harm, as discussed for example at paragraphs 80 and 81 of this judgment.  I was satisfied that Dr Weir's evidence also enabled me to come to a conclusion about the distress that A would be likely to suffer if I ordered residence be transferred to the father as to whether that distress would likely to be of a magnitude that would cause him harm: see paragraph 76 and 82 of this judgment.  In deciding whether to adjourn to enable Dr Weir to be recalled a balance has to be struck between on the one hand my assessment of the need to hear further evidence from him and on the other the further delay to this very long running case that would inevitably have been caused in arranging for that further hearing.  I came to the conclusion that the balance came down against the proposed adjournment."

13. Miss Meyer furthermore complained that there was a manifest inconsistency between the judge's expressions in June, September and December 2009.  She drew attention to paragraphs 176 and 179 of the judgment of June 2009.  At A1093 in paragraph 176 the judge had then said:

"176. Given the strength of A's wishes and feelings, on what basis could the court properly impose an outcome that he himself expressly imposes?  In my judgment, my ongoing concerns about the mother would not, of themselves be sufficient."

In paragraph 179 he deals with inter-sibling contact. 

14. Miss Meyer then highlights paragraphs in the judgment of 25 September which seem to reveal the way the judge's mind was then working.  He was reacting to Miss Ball's announcement of the father's intention to advance a residence order application and he, having sketched the territory, considered a submission that the impending application should, as it were, be struck out in limine.  The judge refused to take that course but said:

"I do not for a moment doubt the very steep hill which this father would need to climb in order to persuade the Court to transfer residence from mother to him.  However, 'steep climb' does not equate to 'completely without merit'."

15. By the time the judgment was delivered on 4 January the judge had expressly shifted his ground, for in paragraph 97 of his judgment he said, having referred to the passage from the September judgment which I have already cited:

"I confess that as I have re-read my earlier judgments, considered the authorities and read and listened to the submissions of counsel I have come to regard that hill as being much less steep than I had first thought."

16. Miss Meyer makes the plausible submission that there had been absolutely nothing between September and December to justify that re-evaluation.  There was simply no evidential basis for it.  Finally, in this regard Miss Meyer made the point that there had been no oral evidence from A's stepmother other than as to factual disputes over contact.  There was no evidence led and no opportunity to cross-examine her capacity as a primary carer.  Those, then, are Miss Meyer's principal submissions on the procedural aspect. 

17. In relation to other issues, Miss Meyer submits, first, that the judge was not able to proceed to differ from Dr Weir without giving him the opportunity to explain himself and to be tested on the point.  It was not open to him simply to, as it were, sever that part of Dr Weir's evidence and to proceed as he did was an error of principle.  She furthermore complained that the judge rejected the NYAS guardian on the ground, or partially on the ground, that he had conceived two years earlier that she had abandoned objectivity.  The judge had not heard from her since May 2009.  The idea that she had lost objectivity and he had lost confidence in her had never been previously expressed.  It came as a complete surprise to the guardian and was, in any event, inconsistent with the fact that in his judgment of June 2009 the judge had impliedly expressed his esteem for the guardian by entrusting her with a delicate task, namely to announce the outcome to A.  Those submissions in relation to the NYAS guardian were of course forcefully adopted in due course by Mr Slater of counsel. 

18. Finally Miss Meyer stressed that the judge had effectively disregarded A's very strongly expressed wishes and feelings.  It may be that his wishes and feelings are either irrational or mistaken, but they still deserved respect and have to be regarded. 

19. As I have already said, Mr Slater forcefully supported the guardian's position and particularly stressed his endorsement of the importance of Dr Weir as a live witness at this fundamental hearing. 

20. So, at the conclusion of the submissions of both applicants, a clear procedural case had been established that required convincing rebuttal.  That came from Miss Ball, and to understand her submission it is necessary to look to the document that she lodged in preparation for the all-important case management hearing on 25 September.  In paragraph 3 she stressed that the father had throughout been prepared to try every possible alternative to seeking a change of residence.  She dealt with Dr Weir's contribution to that, and then in paragraph 5 said:

"On re-reading the judgments it is apparent that the court has reached the following conclusions over the period of litigation."

21. She then set out 16 numbered conclusions.  She continued in paragraph 6:

"These are very concerning findings both as to harm and risk of future harm and also as to the likelihood of change if A remains in mother's care."

22. Then in paragraph 8 she said that her client had been reluctant to apply for a change in residence but was now driven to the conclusion that he could stand by.  She ended her position statement with this paragraph:

"This is not the place for the full argument on behalf of father for change of residence to be rehearsed.  This document is simply a statement pending the filing of an application for change."

23. The judgment of the 25 September is important because it fully explains the order that resulted.  The judge, having evaluated his task and rejected the argument that the declared application was bound to fail continued in paragraphs 9 and 10 to make it absolutely plain that the application would be determined in the calendar year and would be determined on 21 December, the only open date in the judge's calendar.  He continued:

"The order that I make today will be as follows:

(1) list for hearing on 21 December..; (2) the hearing…will proceed on submissions only; (3), by 4 o'clock on 14th December, each party shall file and serve: (a) skeleton argument (b) a bundle of authorities relied upon, and (c) a draft of the final orders contended for; (4) by 4.00pm on 14th December, the solicitors shall file at court a hearing bundle containing the following document only and in this order; (a) all judgments handed down by me;

(b) all reports and letters from Dr Weir; (c) all reports from the NYAS case worker; (d) all substantive orders for residence and contact; (5) the hearing bundles previously lodged in this case should not be re-lodged but should be available…;

(6) for the avoidance of doubt, no further evidence shall be filed in advance of the hearing; and (7) costs in application."

24. That is a model of tight case management by a very experienced circuit judge, and if any party conceived that the case management decision was not designed to do justice or threatened injustice, then they had an obvious remedy.  No party questioned those directions or that management.  No party sought to appeal, and all parties complied with the regime that the judge had laid down.  Miss Meyer's statement of the 14 December indicated that if, when she saw Miss Ball's position statement, it was necessary for her to apply for any additional relief, she would do so but there was nothing to foreshadow the applications which she advanced orally on 21 December.  Miss Ball's position at the vital hearing on 21 December was entirely consistent with her position statement of 23 December, which the judge had essentially accepted, namely that there was a wealth of material within the case papers which enabled this issue, however important, to be resolved on submissions.

25. In relation to the procedural attack I reach the conclusion that it is sufficiently answered by Miss Ball's submissions.  We have not, of course, the transcript of the language with which the judge refused Miss Meyer's oral applications on 21 December, but we do have the addendum dealing with Dr Weir, and I am of the clear conclusion that all orders made by the judge in case management and the judgments or rulings that he delivered on 21 December were all plainly within the discretionary ambit.

26. The suggestion that the judge's conclusion was plainly wrong or otherwise flawed I do not begin to accept.  I see no force in the judge's criticism of the evaluation of the contribution of the NYAS officer.  She had on a number of occasions disagreed with the advice of Dr Weir, and the judge had always preferred Dr Weir's opinion.  She had, in her own language two years earlier, disclosed her passion for fighting for this child and for her consequent lack of objectivity.  The judge respected her professionalism but rejected the position she had reached and the advice which she tendered, and was plainly free to do so. 

27. The suggestion that the judge did not sufficiently regard the wishes and feelings of A is easily answered by the terms of paragraphs 69 and 70.

"A's wishes and feelings must be assessed in accordance with his age and understanding.  It is here that the assessment becomes more difficult.  I have found that A has become alienated from his father.  A has said that his father is a 'monster' and that he 'hates' him.  It is clear from Dr Weir's evidence that such behaviour fits within the pattern of behaviour of children who have become alienated from their non-resident parent.  In his report of 18th July 2008 Dr Weir was very clear.  He said that:

'It is also important for both parents and for all professionals working with the child to recognise that the child's expressed wishes and feelings are irrational and should form no part in the Court's decision making.'

70. The law requires that the court should take account of A's wishes and feelings.  It would be wrong, therefore, for me to pay no regard at all to the views which A has so clearly and consistently expressed.  The Act, the UNCRC and case law all emphasise the importance of listening to and respecting the wishes of the child.  As a general proposition I accept that the older the child the greater the respect that should be accorded to his or her wishes and feelings.  As Butler Sloss LJ said in re S (Minors) (Access: Religious upbringing) [1992] 313 at page 321, a case involving two children aged 13 and 11,

'Nobody should dictate to children of this age, because one is dealing with their emotions, their lives and they are not packages to be moved around.  They are people entitled to be treated with respect.'

I cannot and do not ignore A's expressed wishes and feelings.  However, in the light of Dr Weir's evidence, it would be equally inappropriate for me to proceed on the basis that those expressed wishes and feelings should necessarily be taken at face value.  They need to be assessed in the light of A's age and understanding.  The impact of alienation upon the reliability of those wishes and feelings and the signs (albeit modest) that they may not in fact reflect his true feelings, are matters to be taken into account when assessing the weight to be attached to them."

28. Those paragraphs seem to me to be impeccable directions as to how a judge should evaluate the wishes and feelings of a child who has been caught up in terrible parental conflict over the whole of his life. 

29. As to Dr Weir, the point is in a sense a complex one in that Dr Weir's responses to the question, should residence be transferred, had always been by citation of some American mental health source, which opined that transfer could not take place without evidence of significant harm.  That was not advanced by Dr Weir as a legal test, and to some extent submissions in this area have been confused when the clear distinction between the approach of the mental health profession and the approach of the judge has been blurred.  But I would accept the submission of Miss Ball that the written answers to Dr Weir to questions put on the father's behalf did not constitute such an obstacle or impediment as to require her to call for his attendance and I would unhesitatingly support the judge's reasoning at the conclusion of his judgment for rejecting Miss Meyer's application for his recall. 

30. I want finally to stress only two passages in the judgment.  In paragraph 96 the judge expressly said:

"As I have stated repeatedly throughout the course of this judgment, the ultimate outcome must be one that is in A's best interests.  So I ask myself would a change of residence be in A's best interests?  Would it be a proportionate response to the problems and concerns I have described?  Would it best promote A's right to family life?  Can it properly be said that that is where the balance falls?  In answering those questions I remind myself that there is no professional evidence expressly in favour of a transfer and that Mrs Kermani [that is the NYAS officer] is firmly opposed to it."

31. That citation demonstrates to me that the judge acutely understood the responsibility that he was adopting.  Then at paragraph 102 he explained his discharge of that responsibility thus:

"The decision for the court is a profoundly anxious and, as I now accept, finely balanced decision.  Some may regard a decision to move A as being too bold and inappropriately risky.  Mrs Kermani has referred to it as 'an experiment.' Others may regard a decision not to move him as failing to grasp a nettle that has cried out to be grasped for far too long.  I have taken time after Christmas and New Year to reflect on my decision.  Having reflected I have come to the conclusion that, traumatic though it may be in the short-term, it is in the best interests of A's long-term welfare for him now to live with his father."

32. So my position on this application has in the end become very plain.  On the face of it, it seems questionable that an issue so important should have been decided on submissions only at a one day hearing.  Equally, at first blush it seems surprising that the judge who, having expressed such reservations about the father's prospects of success in September, should have shifted to granting the order without the filing of any evidence or any report or any statement in the interim.  But the answers are plain.  There was, as Miss Ball had said in her position statement of 23 September, a mine of relevant information there for the judge to work on, and it is also well said by Miss Ball that the shift emerges from the opportunity the judge had on 21 December, and thereafter until delivery of judgment, to mine that material and to find what were the essential foundations for his conclusion.  He also had the full deployment of argument on 21 December that had not been available to him on 25 September. 

33. So in the end I am perfectly satisfied that this very clear, conscientious judgment should be supported and the attacks on it rejected.  I would simply dismiss the application for permission.

Lord Justice Wall:
34. I agree.  I add a judgment of my own for two reasons.  Firstly, because this is a decision of the utmost importance for both the parents and, in particular, for the boy and, secondly, out of deference to a very careful and skilful argument advanced by Miss Meyer on the mother's behalf.  As I understood the principal point, which is the only one I propose to address, Miss Meyer essentially submitted that there was no proper evidential basis upon which the judge could move from the position which he had adopted in June 2009 to the position which he adopted in his final judgment.  She took us to passages in the judgment which the judge had given in June and, in particular, to paragraphs that my Lord has read and in addition paragraph 171, which reads as follows:

"This final item in the welfare checklist brings me back once again to the need to reassess these parents.  So far as the father is concerned, I have already expressed the opinion that in terms of his ability to put himself in A's shoes, his ability to show empathy, he does not appear to have moved on.  I do not for one moment doubt the sincerity of the father's desire to re-establish contact between himself and A.  His motives are entirely honourable.  However it appears to me that the father's single-minded pursuit of that end is blind both to the risk of failure and to the potentially adverse impact on A of continuing the fight.  I noted earlier the difficulty judges encounter in coming to the conclusion that the end of the road has been reached.  This father has not even begun to consider the possibility that the end of the road is in view."

35. How, therefore, Miss Meyer asks rhetorically, could the judge properly come to the conclusion in January that residence should be transferred without hearing further evidence, in particular the evidence of the father and the evidence of Dr Weir?  In my judgment, an attack, which is essentially on the integrity of the judge and the inability to produce a fair hearing, is one which merits serious consideration.  HHJ Bellamy is of course known to this court as a man of great personal integrity and conscientiousness.  But of course that does not prevent him being wrong, and if he were wrong I would, I hope, be the first to say so.  However, I have been on record more times than I care to remember saying that directions appointments are of the utmost importance, and it seems to me that the hearing on 25 September 2009 was such an occasion.  Not only did the judge, as my Lord has indicated, give immaculate directions in relation to that occasion but he gave a full and very careful judgment explaining precisely what he was doing.  The case for the mother and the case for the guardian at that hearing was that a halt should be drawn to proceedings.  A line should be drawn.  The father's application for direct contact should be refused and a section 91(14) direction imposed for a period of three years.

36. The case for the father, fully and carefully articulated by Miss Ball, was that the end of the road had not been reached.  It may have been reached so far as contact was concerned, but the matter was now so serious that the father was driven, as my Lord has indicated, to making an application for residence.  As the judge gave the clearest possible notice of his intentions, I propose to quote from paragraph 6 of his judgment:

"Leaving aside the issue of residence, if all I were concerned with today was the question of contact, I should not have the slightest hesitation at all in saying the time will now come when the litigation should end.  However, that is not the position I am in.  I am faced with an application for a change of residence in circumstances where I have made significant criticisms of the mother's past behaviour in relation to contact, where I have accepted expert evidence and the severance of A's relationship with the paternal family as a potential to cause him significant emotional harm in later years and where I have expressed satisfaction that the father is able to offer good enough care for A, if A were to live with him."

37. Nothing in my judgment could be clearer.  The judge was serving clear notice on the parties that he intended conscientiously to deal with the application for residence by the father, however steep the road which the father had to travel was.  The judge was in no doubt at all that closure was required, but quite clearly he had up to that point been dealing with applications for contact and he was now dealing with a wholly different application. 

38. The answer to Miss Meyer's submission does seem to me to lie in the fact that the judge had a huge amount of information and a deep knowledge of the case which served him well and which enabled him to make the directions that my Lord has read and which I will not repeat on 25 September 2009.  Those directions seem to me of critical importance and they are, as my Lord has indicated, model directions given by an experienced judge.  This court has said on many occasions that such applications, such orders can be challenged in this court, but if they are to be challenged they have to be challenged swiftly and they have to be challenged with good reason.  No such challenge was mounted in this case.  The result was the judge began the hearing having the benefit of argument from leading counsel both for the mother and for the father, and I entirely agree with my Lord that he was, in the exercise of his discretion, with his profound knowledge of the case, certainly entitled to refuse the application which was made to him at the hearing by Miss Meyer.

39. Having done so and having examined the case with enormous care and having a profound knowledge of it, the judge came to a discretionary conclusion over which he had clearly thought profoundly and in which, in my judgment, he examines every aspect with great care and detailed attention and reaches a conclusion which, however curious it may seem at the outset or however strong it may seem at the outset, is nonetheless one which, in my judgment, was plainly open to him on the material he had.  Therefore it does seem to me, with due respect to Miss Meyer, that the argument fails on the basis of the judge's overall knowledge of the case, his proper approach to it and the directions which he properly gave on 25 September 2009.  In these circumstances, although this was a finely balanced case, it is a case in which the judge, having exercised a discretion appropriately on material on which he was entitled to exercise that discretion, it seems to me that this is not a case with which this court can begin to interfere and therefore, like my Lord, I would refuse permission to appeal. 

40. I should add that this is the third occasion on which in recent months, in my experience, this court had to consider applications for changes of residence, and our approach has been consistent: namely, if the court below has exercised its discretion appropriately on all the material, has taken into account all the relevant factors and has not taken into account material which is immaterial or irrelevant, then this court will not interfere.  In my judgment this is such a case and therefore I would refuse permission.

Lord Justice Rimer:
41. I agree with both judgments and would also refuse both applications.

Order: Applications refused