CITATION:	Qadir v Macdonald & Anor [2018] NTSC 79

PARTIES:	QADIR, Abdul 

	v

	MACDONALD, Judge Greg

	and

	REGISTRAR OF MOTOR VEHICLES 

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT exercising Territory jurisdiction

FILE NO:	19 of 2018 (21811418)

DELIVERED:	31 December 2018

HEARING DATE:	20 June 2018

JUDGMENT OF:	Barr J

CATCHWORDS:

ADMINISTRATIVE LAW – CERTIORARI – Application to Supreme Court for an order in the nature of certiorari – plaintiff asserts jurisdictional error by Local Court judge –  statutory appeal to Local Court from decision of Registrar of Motor Vehicles and Director of Commercial Passenger (Road) Transport cancelling plaintiff’s taxi driver’s licence, identity card, accreditation, and taxi operator’s licence (“the licences”) – cancellations ultimately set aside by consent – licences had all expired – plaintiff did not make application to the Registrar and Director for fresh licences – plaintiff applied for consequential order that Local Court direct Registrar and Director to reinstate licences – no evidence in support of application – Local Court held that s 77 (7)(c) Commercial Passenger (Road) Transport Act “to make any further order as to costs or any matter that the case requires” did not empower the Local Court to direct the Registrar and Director in the absence of evidence that the plaintiff was a fit and proper person –  provision to be read in the context of regulatory scheme as a whole – Local Court held that it did not have jurisdiction – on application for judicial review to Supreme Court – held Local Court did not mistakenly deny the existence of jurisdiction or refuse to exercise jurisdiction based on a mistaken assumption – plaintiff’s application, if granted, would have circumvented the Director’s proper consideration of the plaintiff’s fitness to obtain the licences – Local Court would have directed the issue of licences without evidence of the plaintiff’s fitness –  tension if not outright conflict with legislative scheme – held no jurisdictional error – summons on originating motion dismissed. 
 
ADMINISTRATIVE LAW – CERTIORARI – Application to Supreme Court for an order in the nature of certiorari – plaintiff asserts error of law on the face of the record as alternative ground – Local Court incorporated reasons into formal order – plaintiff asserts inadequate reasons – contention rejected – held reasons tolerably clear in context – plaintiff’s application to have licences reinstated not supported by evidence – plaintiff contends that Registrar and Director bore onus of proof that licences should not be reinstated –  contention rejected – once consent orders made to set aside cancellations, parties restored to position as if cancellation not made – no continuing onus on Registrar and Director – plaintiff bore legal and evidential onus having regard to nature and subject matter at that stage of the proceeding – plaintiff failed to establish error of law on the face of the record – summons on originating motion dismissed. 

Commercial Passenger (Road) Transport Act (NT) s 8, s 7, s 17(1), s 18 (3), s 22, s 70 (a), s 74 (1), s 74 (4), s 77 (7) (a), s 77 (7) (c)
Motor Vehicles Act (NT) s 10(2), s 102AAD
Supreme Court Rules (NT) r 56.01
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355; Samad v District Court of New South Wales (2002) 209 CLR 140; Kirk & Anor v Industrial Court of New South Wales & Anor (2010) 239 CLR 531 at 577; Qadir v The Department of Transport [2015] NTSC 86; Qadir v The Director of Commercial Passenger (Road) Transport [2017] NTSC 76, referred to  

REPRESENTATION:

Counsel:
	Plaintiff:	M Crawley SC
	First Defendant:	S Monck 
	Second Defendant:	T Anderson

Solicitors:
	Plaintiff:	Piper Ellis Lawyers 
	First Defendant:	
	Second Defendant:	Solicitor for the Northern Territory

Judgment category classification:	B
Judgment ID Number:	Bar1811
Number of pages:	19
IN THE SUPREME COURT 
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Qadir v Macdonald & Anor [2018] NTSC 79
No. 19 of 2018 (21811418)

	BETWEEN:

	ABDUL QADIR
	Plaintiff

	AND:

	JUDGE GREG MACDONALD
	First Defendant

	AND:

	REGISTRAR OF MOTOR VEHICLES 
	Second Defendant

CORAM:	BARR J

REASONS FOR JUDGMENT

(Delivered 31 December 2018)

Introduction
[1]	The plaintiff has applied for an order in the nature of certiorari quashing the decision of the first defendant made 12 January 2018 whereby his Honour determined that the Local Court did not have jurisdiction to direct the second defendant to (1) issue the plaintiff accreditation and an identity card or (2) renew licences to drive a commercial passenger vehicle and operate a taxi. 
Background 
[2]	The legislative and regulatory system which operates in the Northern Territory for taxi owners and drivers is not straightforward. There are legislative provisions applicable to both driving a taxi and operating a taxi.    
[3]	The starting point is s 70(a) of the Commercial Passenger (Road) Transport Act, which requires that a person wishing to drive a motor vehicle to carry passengers for hire or reward must have a licence under the Motor Vehicles Act to drive the motor vehicle. Pursuant to s 10(2) Motor Vehicles Act, the Registrar of Motor Vehicles has the power to grant a licence to drive a taxi (“taxi” comes within the definition of “commercial passenger vehicle”), subject to a number of conditions stated. The Registrar may renew the licence from time to time. 
[4]	A further requirement, imposed by s 74(1) of the Commercial Passenger (Road) Transport Act, is that a taxi driver must hold an identity card issued by the Director of Commercial Passenger (Road) Transport. Before issuing an identity card, the Director must be satisfied that the applicant holds a licence under the Motor Vehicles Act to drive a taxi, and is a fit and proper person to drive a taxi.
[5]	In order to operate a taxi, a person must be accredited by the Director of Commercial Passenger (Road) Transport pursuant to the provisions of Part 3 of the Commercial Passenger (Road) Transport Act. The purpose of accreditation is to ensure that the accredited person is of good repute and in all other respects fit and proper to responsibly operate a taxi; and has demonstrated the capacity to meet the required standards of safety for passengers and the public. In addition, s 17(1) Commercial Passenger (Road) Transport Act requires that “a person who proposes to operate a taxi must hold a taxi licence before commencing the operation.” A taxi licence authorises the holder to operate the taxi named in the licence in accordance with the conditions specified in the licence and the holder’s accreditation.  The Director must not issue a taxi licence (that is, a licence to operate a taxi) to a person who is not accredited. 
The cancellations of 13 September 2013
[6]	As at 13 September 2013, the plaintiff held a licence to drive a commercial passenger vehicle issued pursuant to s 10(2) Motor Vehicles Act (see [3] above). That licence enabled him to drive a taxi. However, he did not hold a current identity card (see [4] above), because his identity card had expired on 12 September 2013. The plaintiff also held accreditation to operate a taxi and a licence to operate a taxi (see [5] above).   
[7]	On 13 September 2013, Paul Nathan Rajan, who was then both Registrar of Motor Vehicles and Director of Commercial Passenger (Road) Transport, issued notices cancelling or purporting to cancel the plaintiff’s taxi driver’s licence, identity card, accreditation to operate a taxi, and taxi operator’s licence. Mr Rajan cancelled the taxi driver’s licence in his capacity as Registrar; he cancelled the others in his capacity as Director. The plaintiff contends, and it is not in issue, that the cancellation decisions collectively had the effect of cancelling the plaintiff’s business of operating and driving a taxi. 
[8]	The background to the cancellation decisions and the resulting court proceedings was explained by Kelly J in Qadir v The Department of Transport [2015] NTSC 86. The plaintiff unsuccessfully appealed the cancellations to the Local Court. However, the Supreme Court then held that the magistrate had erred by having regard to material which was not in evidence at the hearing. The judge on appeal was not satisfied that the magistrate had not been influenced by evidence wrongly taken into account, and therefore allowed the appeal. The matter was remitted to the Local Court.
[9]	The hearing of the remitted appeal resumed in the Local Court in April 2016. On 23 June 2016 the Local Court dismissed the appeal and made orders for the cancellation of the appellant’s accreditation and taxi licence.
[10]	In deciding the remitted appeal, the Local Court took into account evidence adduced at the hearing of the earlier appeal which was adverse to the appellant and which was an important, if not crucial, factor in the judge’s reasoning in concluding that the appellant was not a fit and proper person to maintain his accreditation and licences. However, that evidence was not evidence in the remitted appeal and the judge’s reliance on the evidence was an error of law which, the Supreme Court held, vitiated the decision. The matter was once more remitted to the Local Court. 
[11]	Before turning to consider what subsequently took place at the hearings in the Local Court on 28 November and 18 December 2017, it is appropriate to make findings in relation to the status (as at 28 November 2017) of the cancelled licences, accreditation and identity card referred to in [7]. 
[12]	As mentioned in [6], the plaintiff’s identity card had expired, or “ceased to be in force”, on 12 September 2013. As a result, the Director’s purported cancellation of the identity card on 13 September 2013 had no effect.  Although s 78 Commercial Passenger (Road) Transport Act provides that, when an appeal is made against a cancellation decision, the decision is of no effect until the appeal is determined, the provision could not have operated in such a way as to maintain the validity of an identity card which was not in force at the date of the purported cancellation.
[13]	The plaintiff did not subsequently apply for renewal of his identity card or for the issue to him of a new identity card. I observe that, if the plaintiff had applied, the Director could have refused the application if he were not satisfied that the plaintiff was a fit and proper person, as explained in [4] above.  
[14]	The plaintiff’s licence under s 17 (1) Commercial Passenger (Road) Transport Act to operate a taxi had expired in October 2013. That license was valid for 12 months only from the date it was granted. The plaintiff had not sought to renew the licence.
[15]	The plaintiff’s accreditation under Part 3 of the Commercial Passenger (Road) Transport Act, to operate a taxi, had expired in early November 2017. 
[16]	In the circumstances, s 78 Commercial Passenger (Road) Transport Act did not ‘preserve’ the licence and accreditation referred to in [14] and [15] respectively. The provision does no more than make any cancellation decision “of no effect” in circumstances where there is an appeal, pending the determination of the appeal. It does not provide for automatic renewal if a licence or accreditation otherwise happens to expire. I would observe that, logically, there is no reason a person whose licence or accreditation has been cancelled should be in a more favourable position than a person who has not suffered cancellation. 
Further appeal proceedings in the Local Court 
[17]	The case came before the Local Court for mention on 28 November 2017. Mr Anderson, counsel for the Registrar, invited the presiding judge (the first defendant) to make orders by consent finally disposing of the matter in favour of the plaintiff (Mr Qadir). The transcript reveals that the following interchange then took place between Mr Anderson, his Honour and Mr Crawley SC, counsel for the plaintiff:
Mr Anderson:	The long and the short of it, your Honour, is that it’s now become futile to proceed any further due to the lengthy passage of time since the original notices were issues in September 2013. …
His Honour:	Mr Crawley, what’s the situation from your point of view?
Mr Crawley:	So, obviously I can hardly be unhappy with the suggestion that orders be made in favour of my client, but in all fairness I need to say this. That, as I understand it, the respondents approach it on the basis that, because they’ve now lapsed through normal efflux of time, there’s no utility in proceeding with the matter.
	I can’t formally concede that. I accept that the times – the durations of the licences and the accreditations on the face have now all expired. But I’m not in a position to formally concede that that doesn’t mean it’s beyond this court’s power to make any consequential orders.
	So if – I don’t have instructions to press that today. Obviously it’s only on for mention but … the appellant’s not conceding that there isn’t something that this court should decide.
His Honour:	No, I understand. Because the respondent would take the view well they’ve expired and therefore reapplication for fresh permission or licences is required and you don’t necessarily accept that that must follow. 
Mr Crawley:	Yes that’s right. My learned friend may be right but we don’t concede this and we may, subject to my instructions, want to argue that issue about what flows from the notices being set aside or struck out.
His Honour:	Alright. Well, what do counsel wish me to do today, other than to note that the position has been put by the respondent? Obviously … the orders aren’t by consent at the moment, so it seems to me that I really just have to wait and see what might be resolved between the parties.
Mr Crawley:	Well if the respondent, notwithstanding what I have just said, still is willing to have their notices struck out, then that could be done and any question about an argument on whether there’s consequential orders possible, we could argue that rather than actually hearing per se.
	But if in light of what I’ve just said, the respondent doesn’t want to take that chance, then it might well be better off leaving things as they are. But I’m in my learned friend’s hands as to how he wants to respond to that.
His Honour:	Thanks.
Mr Anderson:	We seek to have orders in the terms proposed as consent orders made today, your Honour …
[18]	Mr Anderson then made submissions in relation to the expiry of the licences and accreditation, and the consequent inutility of further proceeding. He informed the judge that the Registrar, as a model litigant, sought to bring the matter to a conclusion and thus put the within plaintiff in a position “where effectively there is a clean slate and he can re-apply to the relevant authorities and they will look at his application afresh”.  
[19]	The orders made by the Local Court, by consent, were as follows:
1.	The following notices issued by the Registrar of Motor Vehicles dated 13 September 2013 are set aside:
(a)	Cancellation of Licence (taxi);
(b)	Cancellation of Identity Card;
(c)	Cancellation of Accreditation; and
(d)	Cancellation of Licence to Drive a Commercial Passenger Vehicle.
2.	Any application for costs or consequential orders by either party to be filed and served within 14 days.
3.	Hearing of 18 and 19 December 2017 vacated.
[20]	Counsel for the second defendant may have anticipated that the only consequential orders would be in relation to costs. However, senior counsel for the plaintiff made no concessions and reserved his client’s position. The learned judge also understood that there may have been issues other than costs to be argued. His Honour observed:
Mr Crawley, you’re going to go away and work out whether there is any residual contentious issue that might be ventilated and any relief that might flow from that as a result of this move taken today.
[21]	The plaintiff subsequently filed an application in the Local Court seeking,  inter alia, the following order (in addition to an order for costs):
That the respondent be directed to issue to the applicant:
a.	A renewal of Licence to Operate a Taxi, which has endorsed against it the Registration No taxi 430;
b.	Accreditation No 3008;
c.	Identity Card No 9282;
d.	A Licence to Drive a Commercial Passenger Vehicle.
[22]	Hearing of the plaintiff’s application took place on 18 December 2017. Counsel for the Registrar submitted that the Local Court did not have the power to make the orders sought by the application, save for orders in relation to costs. In the alternative, counsel argued that, if the Local Court had the power, the power should not be exercised “in the absence of an enquiry being undertaken before the court as to whether Mr Qadir currently is a fit and proper person to hold these things.” He submitted that, in consenting to the orders set out in [19] above, the Registrar had not conceded that the plaintiff was a fit and proper person; rather, the plaintiff was now seeking to subvert the process of consideration as to whether he was a fit and proper person. If the Court were to make the orders sought without any enquiry into the fitness of the plaintiff, it would be futile in the sense that it would then be incumbent upon the Registrar to consider whether the plaintiff was currently a fit and proper person and, in that consideration, there being no fresh evidence, the logical conclusion likely to be reached was that the plaintiff was not a fit and proper person to hold the licences.
[23]	Counsel for the second defendant concluded his submission as follows:
If Mr Qadir considers that he can satisfy your Honour, surely he should consider that he can satisfy the Registrar that he is a fit and proper person and that he should provide such information in support of a fresh application for the things that he seeks.
[24]	Senior counsel for the plaintiff submitted that, when the plaintiff appealed the cancellations, the Registrar assumed responsibility for proving that he was not a fit and proper person. Senior Counsel observed that the Registrar had not sought to support (by evidence) his decisions to cancel. The situation was comparable to that in which a party who has the onus of proof chooses not to call any evidence, thereby entitling the opposing party to judgment. Senior Counsel relied on s 77(7)(a) Commercial Passenger (Road) Transport Act, which empowers the Local Court to “substitute any decision that should, in the opinion of the Local Court, have been made in the first instance”, and on s 77(7)(c) of the Act, which gives the power to make “any further or other order as to costs or any other matter that the case requires”.
[25]	In his written Reasons for Decision, the first defendant found as follows:
… I consider that the broader principles set down by the High Court in Project Blue Sky v ABA [1998] HCA 28 at [69] and [70] are most apposite. That includes having regard to the provisions of s 77 of the Act as a whole, read in the broader context of the Act. To grant the relief sought by the Application without any hearing of the relevant evidence, which I note would be available at the date of hearing rather than as at September 2013, would not have sufficient regard for the unity of the scheme of the Act or the Motor Vehicles Act.
I agree that the words “or any other matter that the case requires” of s 77(7)(c) are particularly broad. However, having regard to the terms and purpose of both s 77 of the Act and s 102AAD of the Motor Vehicles Act, including in the context of the regulatory scheme they are part of, I find that the Local Court does not have jurisdiction to direct and extend as sought by Mr Qadir.
It is also my view that, to find otherwise, it would be necessary to rely upon the principles concerning implied jurisdiction or powers of statutory courts [citations omitted] in order to give the direction sought by Mr Qadir’s Application.
If I am wrong in my conclusions on the extended jurisdiction of the Local Court in the circumstances, I would nonetheless decline to exercise jurisdiction to grant the relief sought.
Application to Supreme Court for judicial review  
[26]	Having failed in the Local Court, the plaintiff has applied by originating motion for an order in the nature of certiorari pursuant to r 56.01 of the Supreme Court Rules.
[27]	Although the Registrar is named as the ‘relevant’ defendant (my expression), the comprehensive relief sought by the plaintiff would normally require that the Director of Commercial Passenger (Road) Transport also be a party. As explained in [4] above, the Director issues a taxi driver’s identity card, and, as explained in [5], the Director issues the relevant accreditation and the licence to operate a taxi. It was in his capacity as Director of Commercial Passenger (Road) Transport that Mr Rajan cancelled or purported to cancel the plaintiff’s identity card, and cancelled the plaintiff’s accreditation and taxi operator’s license. It is arguable that the within proceeding is incompetent. However, no issue was taken in the Local Court in relation to the fact that the Director of Commercial Passenger (Road) Transport was not named as a party, nor has any issue been taken in this Court. In the circumstances, I consider that I should proceed to determine the plaintiff’s case on the basis that all necessary parties have been joined. 
The plaintiff’s case
[28]	The plaintiff contends that the first defendant fell into jurisdictional error in that his Honour mistakenly denied existence of jurisdiction and consequently refused to direct the Registrar (and, I would add, the Director) to (1) issue the plaintiff accreditation and an identity card and renew licences to drive a commercial passenger vehicle and operate a taxi and (2) extend the time within which the plaintiff could seek renewal of accreditation.  
[29]	Alternatively, the plaintiff asserts error of law on the face of the record, for which relief in the nature of certiorari would also lie. Mr Crawley SC refers to the sealed order made by the first defendant dismissing the plaintiff’s application, which read: “Application dismissed – reasons published”, and contends that the Local Court incorporated its reasons into the final order, with the consequence that the reasons for decision formed part of the record. 
[30]	In amended submissions, the plaintiff seeks an order that this Court quash the decision of the Local Court and remit the matter to the Local Court for determination according to law on the basis that the Local Court may properly exercise the powers vested in the Registrar and Director to renew what can be conveniently collectively described as “the licences”. 
Consideration 
[31]	In the appeal against the decision of the Registrar of Motor Vehicles to cancel the plaintiff’s taxi driver’s licence, s 102AAD Motor Vehicles Act provides, relevantly, as follows: 
(6)	The appeal must be by way of hearing de novo.
(7)	The Court must confirm the decision, or revoke it and substitute its own decision.
(8)	At the hearing of the appeal, the Court may make an order about costs it considers appropriate.
[32]	In the appeal against the decision of the Director of Commercial Passenger (Road) Transport to cancel the plaintiff’s identity card, accreditation to operate a taxi, and taxi operator’s licence, s 77 Commercial Passenger (Road) Transport Act provides, relevantly, as follows: 
(7)	The Local Court may:
(a)	confirm the decision appealed against;
(b)	substitute, or make in addition, any decision that should, in the opinion of the Local Court, have been made in the first instance; or
(c)	make any further or other order as to costs or any other matter that the case requires.
(8)	An appeal must be by way of hearing de novo.
[33]	It can therefore be seen that, had the appeals proceeded, each would have involved a hearing de novo. The Registrar and the Director would have been dux litis in their respective appeal hearings, as his Honour held. However, the appeal hearings did not proceed, and no evidence was led, because the cancellations were set aside by consent. The plaintiff was not then in the situation where his expired licences and accreditation were re-enlivened; he was left unlicensed, without an identity card and without accreditation. He had the option of making fresh applications, but had not done so. In any event, as explained in [4] above, the Director could not have issued an identity card to the plaintiff or to any other applicant unless he were satisfied that the applicant was a fit and proper person to drive a taxi. Even the renewal of an identity card would have been subject to the Director being so satisfied. In relation to accreditation, the Director was bound by s 9(3) Commercial Passenger (Road) Transport Act to refuse to accredit or renew the accreditation of a person who was not considered to be a fit and proper person to hold or continue to hold an accreditation. Without an identity card, the plaintiff could not drive a taxi, and without accreditation he could not hold a taxi license (that is, a licence to operate a taxi).
[34]	As mentioned in [33], there had been no hearing(s). The plaintiff’s application referred to in [21] above was not supported by any evidence and, if granted, would have circumvented the Director’s proper consideration of the plaintiff’s fitness to obtain an identity card and accreditation. Further, if the application had been granted, the Local Court would have directed the issue of an identity card and accreditation without having heard evidence to properly determine the issue of the plaintiff’s fitness. That would have been an irrational and unjust outcome. Therefore, in the particular circumstances of this case, the power given to the Local Court by s 77(7)(c) Commercial Passenger (Road) Transport Act, to “make any further or other order as to costs or any matter that the case requires” should not be interpreted as empowering the Local Court to make orders which would be in considerable tension if not outright conflict with the legislative scheme. 
[35]	In the Reasons for Decision, extracted at [25] above, his Honour justified his arguably narrow interpretation of s 77(7)(c) by reference to the decision of the High Court in Project Blue Sky v Australian Broadcasting Authority, and in particular to the joint judgment of McHugh, Gummow, Kirby and Hayne JJ at [69]-[70]. In brief, the paragraphs referred to stand for the proposition that the primary objective of statutory construction is to construe a particular provision so that it is consistent with the language and purpose of all the provisions of the statute. A statute must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. As a result, the meaning of competing provisions must be adjusted to achieve the result which will best give effect to the purpose and language of those provisions while maintaining the unity of the statutory scheme.  
[36]	I agree with his Honour’s reasoning in relation to the interpretation and application of s 77(7)(c) in this case. There was no jurisdictional error in this respect. The learned judge did not mistakenly deny the existence of jurisdiction or refuse to exercise jurisdiction based on a mistaken assumption. 
[37]	In support of the plaintiff’s alternative contention, referred to in [29] above, that there was an error of law on the face of the record, senior counsel refers to the following statement by his Honour, which, he submits, demonstrates  entirely inadequate reasons: 
If I am wrong in my conclusions on the extent of jurisdiction of the Local Court in the circumstances, I would nonetheless decline to exercise jurisdiction to grant the relief sought.
[38]	The plaintiff contends that “the reasons given for the alternative decision do not enable the plaintiff to understand the basis upon which the decision was made”. I reject that contention. In the passage extracted, his Honour was considering, in the alternative, whether he would grant the relief sought by the plaintiff if, contrary to his decision, the Local Court did have jurisdiction to grant the relief sought by the plaintiff. It is tolerably clear that his Honour’s indication that he would decline to exercise jurisdiction was for the same or substantially the same reasons he had given in immediately preceding paragraphs, specifically that “to grant the relief sought.. without any hearing of the relevant evidence … available at the date of hearing rather than as at September 2013, would not have sufficient regard for the unity of the scheme of the Act.” 
[39]	Senior counsel for the plaintiff acknowledges that the extracted reason in [38] was the likely reason for his Honour’s decision, in the alternative, to decline to exercise jurisdiction. However, senior counsel contends that the extracted passage ignores the fact that the onus of proof at all times was on the Registrar (or the Director, as the case may be). I reject that contention. Had the appeals proceeded, the onus would have been on the Registrar or Director to justify the cancellations of 13 September 2013. However, once orders had been made, by consent, setting aside the cancellations, there was no continuing onus on the Registrar or Director. The parties were notionally restored to the same position as if the cancellations had not been made. However, that did not help the plaintiff, since his licences, identity card and accreditation had all expired without any application made by him to renew. In my opinion, having regard to the nature and subject matter of the proceeding at that stage, the plaintiff (as applicant) bore the legal and evidential onus, alternatively the evidential onus, in the application referred to in [21] above.  
[40]	The plaintiff has not established error of law on the face of the record.
Conclusion 
[41]	The summons on originating motion should be dismissed. The matter should be listed for submissions as to final orders. I will also hear the parties on the question of costs.   
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