Re Kanthal Australia Pty Limited v the Minister of Industry, Technology and Commerce [1987] FCA 38 (16 February 1987)

FEDERAL COURT OF AUSTRALIA

Re: KANTHAL AUSTRALIA PTY LIMITED
And: THE MINISTER FOR INDUSTRY, TECHNOLOGY AND COMMERCE
No. NSW G259 of 1986
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

Practice and Procedure - Discovery of documents - Inspection - Documents relating to commercial operations of competitors of applicant -- Documents supplied on confidential basis to Australian Customs Service - Objection by Minister to inspection on behalf of applicant - Documents critical to case alleged by applicant - Application for inspection by lawyers and independent consultant - Order for inspection only by legal representatives of applicant subject to undertakings as to non-disclosure.

Customs Tariff (Anti-Dumping) Act 1975 ss.5, 8.

Customs Administration Act 1985 s.16.

Crimes Act 1914 s.70.

Alfred Crompton Amusement Machines Limited v Customs and Excise Commissioners (1974) AC 405, Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1, Hilton v Wells (1985) 59 ALR 281, Nestle Australia Ltd. v Commissioner of Taxation (1986) 67 ALR 128 and (1986) 86 ATC 4,760 referred to.

HEARING

SYDNEY
16:2:1987

Counsel for the Applicant: Mr B Walker

Solicitors for the Applicant: C G Gillis & Co

Counsel for the Respondent: Mr G Hosking

Solicitors for the Respondent: Australian Government Solicitor

ORDER

The respondent grant access to each of the documents referred to in Parts 2 and 3 of Schedule 1 of the List of Documents filed on behalf of the respondent on 25 August 1986 to:

(a) not more than two solicitors, being

members or employees of the firm C G
Gillis & Co actually engaged in the
conduct on behalf of the applicant of
the principal proceedings in this matter;
and

(b) counsel briefed to appear at the hearing
of the principal proceedings in this
matter;

PROVIDED HOWEVER that no access shall be granted to
any particular such solicitor or counsel until there
has been filed with the District Registrar an
undertaking signed by that person in the following
terms:

"Kanthal Australia Pty Limited v Minister for
Industry, Technology and Commerce No. NSW
G.259 OF 1986

I, (insert name and profession), hereby
undertake to the Court that I will not, except
with the prior consent of the respondent
Minister or the prior leave of the Court or a
Judge thereof:

(a) disclose; or

(b) discuss

the contents of any document referred to in
Part 2 or 3 of Schedule 1 of the List of
Documents filed on behalf of the respondent in
this matter on 25 August 1986, or the
information contained in any such document,
with any person, other than a person whose
signed undertaking, in like terms to this
undertaking, has previously been filed with
the District Registrar of the Court.

...... ..............
Date Signature"

Liberty be granted to either party to apply on twenty-four (24) hours'

notice in relation to any aspect of order 1 or in relation to the granting of access to the said documents or any of them to any other person or persons.

The costs of the Notice of Motion dated 25 November 1986 be costs in the principal proceedings.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

This is an interlocutory application raising a difficult problem of general application in proceedings challenging decisions made under the Customs Tariff (Anti-Dumping) Act 1975.

2. Kanthal Australia Pty Limited claims to be an importer into Australia of alloy steel products. On 8 May 1985 the Minister for Industry, Technology and Commerce made a declaration under s.8(2) of the Act in relation to some of those products; thus increasing the rate of duty payable on their future importation. Kanthal subsequently requested the Minister to consider revoking the declaration but he declined to do so.

3. On 2 July 1986 Kanthal filed an Application in this Court seeking review under the Administrative Decisions (Judicial Review) Act 1977 of various decisions made by the Minister in connection with the matter. In due course, and pursuant to directions made by Sheppard J, the Minister, the respondent in the principal proceedings, filed a List of Documents. Schedule 1 of this List itemised documents in the present possession of the respondent. Privilege from disclosure was claimed in respect of Parts 2, 3 and 4 of that Schedule. The claim made in relation to Part 4 was that the documents were protected by legal professional privilege. This claim has not been challenged and no application has been made for access to the documents listed in that Part.

4. In his List of Documents the Minister objected to production of the documents referred to in Parts 2 and 3 of the Schedule upon grounds of public interest immunity. The claim was put in this form:

"2. The documents enumerated or referred
to in Part 2 of Schedule 1 are privileged
from production and inspection on the
ground that they are confidential
documents and that it is not in the
public interest that they be disclosed.
The reasons these documents are
confidential are that they were supplied
to the Respondent in confidence, they
contain information relating to the
commercial and trading activities of
persons including competitors of the
Applicant and it would disadvantage these
persons if the Applicant were to be shown
their contents.

The documents were supplied to the
Respondent for the sole purpose of
assisting him in enquiries being made
under the Customs Tariff (Anti-Dumping)
Act 1975. It is in the public interest
that the contents of these documents
remain confidential. This is necessary
to ensure that the Respondent will be
able to obtain all relevant information
in order to conduct similar inquiries in
the future. Further it is necessary to
ensure that the Commonwealth of Australia
meets its obligations in respect of
confidential information under the
General Agreement of Tariffs and Trade
(Australia Treaty Series 1948 No. 23) and
the agreements entered into by Australia
in pursuance of that agreement,
includiong the Anti-Dumping
Implementation Code (Australia Treaty
Series 1982 No. 23).

3. The documents enumerated or referred
to in Part 3 of Schedule 1 are privileged
from production on the grounds that their
disclosure will inhibit the proper
functioning of the Australian Customs
Service and that it is not therefore in
the public interest that they be
disclosed."

5. By Notice of Motion filed on 25 November 1986 the applicant sought that both it and its legal advisers have access to the documents listed in Parts 2 and 3 of Schedule 1. This motion is now before the Court but there has, in the meantime, been some softening of attitudes on each side. In the first place, officers advising the Minister have reviewed the list of documents in respect of which the claim of privilege was made, with the result that certain of the documents have been released to the applicant. Secondly and on the other side, the applicant has abandoned its claim, in relation to the remainder, for access by officers or employees of the applicant company. It now seeks only that there be access to the documents by its lawyers directly involved in the conduct of the principal proceedings and by a trade consultant, Mr G N Day.

6. The respondent has read a number of affidavits in support of the claim for public interest immunity, including an affidavit sworn by the Minister himself. It is not necessary to set out at length the contents of the affidavits. All of the documents in relation to which objection continues to be taken came into existence as a result of a complaint of dumping; which complaint, in due course and after inquiry, led to the making by the Minister of the challenged declaration. It is said by Mr J R Tatnell, Chief Inspector, Dumping Policy and Administration Branch in the Australian Customs Service, that all of those documents "are documents either received from third parties in confidence or documents created by Australian Customs Service officers which contain references to such material which is itself confidential". In his affidavit Mr Tatnell identified five "third parties", four of whom are Australian companies engaged in the production and sale in Australia of goods included in the declaration. As sellers they are all, to a greater or lesser extent, in competition with the applicant.

7. The fifth party named by Mr Tatnell is a Swedish company, the supplier to the applicant of the goods imported by it. At the hearing of the motion counsel for the applicant claimed that this company had no objection to the disclosure to the applicant of the material submitted by it to the Australian Customs Service and that the company would, if necessary, give a written consent to disclosure. Without any formal concession being made, counsel for the respondent was content to argue the matter upon this basis. In the end, in my opinion, no special considerations arise out of the position of this company.

8. I have not myself inspected the documents under dispute but the evidence establishes two matters in relation to them. First, as already mentioned, these documents each contain material concerning the commercial operations of the five "third parties", being material which is commercially sensitive and which was supplied to the Australian Customs Service pursuant to a promise of confidentiality made by officers of that Service. Secondly, the material in these documents is critical to the case sought to be made in the principal proceedings by the applicant. The first matter is a powerful reason against, the second a powerful reason in favour of, disclosure.

9. The evidence filed on behalf of the Minister makes reference to Australia's obligations as a member of the General Agreement on Tariffs and Trade ("GATT") and pursuant to agreements made thereunder. It is said by Mr Tatnell that the enactment of the Customs Tariff (Anti-Dumping) Act was itself a response to those obligations. Attention is drawn to the revised code, operative from 1 January 1980, for the implementation by member countries of the anti-dumping provisions (Art.vi) of GATT. Article 6 of that code deals with evidence submitted to member governments in connection with investigations by them of allegations of dumping. That article includes the following paragraphs:

"2. The authorities concerned shall provide
opportunities for the complainant and the
importers and exporters known to be concerned
and the governments of the exporting
countries, to see all information that is
relevant to the presentation of their cases,
that is not confidential as defined in
paragraph 3 below, and that is used by the
authorities in an anti-dumping investigation,
and to prepare presentations on the basis of
this information.

3. Any information which is by nature
confidential (for example, because of its
disclosure would be of significant competitive
advantage to a competitor or because of its
diclosure would have a significantly adverse
effect upon a person supplying the information
or upon a person from whom he acquired the
information) or which is provided on a
confidential basis by parties to an
anti-dumping investigation shall, upon cause
shown, be treated as such by the investigating
authorities. Such information shall not be
disclosed without specific permission of the
party submitting it.(10) Parties providing
confidential information may be requested to
furnish non-confidential summaries thereof.
In the event that such parties indicate that
such information is not susceptible of
summary, a statement of the reasons why
summarization is not possible must be
provided.

4. However, if the authorities concerned find
that a request for confidentiality is not
warranted and if the supplier is either
unwilling to make the information public or to
authorize its disclosure in generalized or
summary form, the authorities would be free to
disregard such information unless it can be
demonstrated to their satisfaction from
appropriate sources that the information is
correct.(11)"

Footnotes 10 and 11 are as follows:

"10. Parties are aware that in the territory
of certain Parties disclosure pursuant to a
narrowly drawn protective order may be
required.

11. Parties agree that requests for
confidentiality should not be arbitrarily
rejected."

10. Counsel for the Minister places particular reliance upon para.3. The relevant information was "provided upon a confidential basis by parties to an anti-dumping investigation". This is enough, he says, to oblige Australia to treat the information as confidential and to decline to disclose it to others without the specific permission of the party submitting the information. Counsel adds that certain of the material also satisfies the first limb of para.3, that is "by nature confidential"; but he concedes that this would not be true of the whole of the material in the subject documents, so that some dissection would be required.

11. Counsel for the Minister further submits that, independently of the GATT code, it would be a breach of faith with the companies who supplied information to the Service pursuant to promises of confidence if the Minister were now, even pursuant to an order of the Court, to make available that information to others; and particularly to persons acting on behalf of, and advising, a competitor of those companies.

12. I have commented that the documents appear to be critical to the case sought to be made by the applicant. The Statement of Claim makes six allegations of invalidity or irregularity, all of which are put in issue by the Defence. In para.8 the applicant alleges that in establishing the "normal value" of the goods -- see s.5(1) of the Act -- the Minister failed to establish as the normal value of the goods the lowest price paid in the country of export, Sweden. By way of particulars it is said that the Minister took as the price in Sweden that paid by a company known as SIGAB, namely list price less 55%, whereas the lowest price actually paid in Sweden was that paid by another company, Svenskt Steel, namely list price less 59%. Proof of this allegation obviously involves proof of the computations of normal price adopted by the Minister. These computations are contained in the material in relation to which objection is taken; the reason being that the material also contains information obtained in confidence.

13. Paragraph 11 of the Statement of Claim alleges that the Swedish price was modified by the terms and circumstances of the sales -- particulars of which are supplied -- so that the Minister should have adjusted the price accordingly: see s.5(5) of the Act. In para.12 the applicant alleges that he failed to do so. Once again, these allegations can only be made good by proof inter alia of the calculations adopted by the Minister, so as to demonstrate that he did in fact fail to make the various adjustments.

14. By paras.13 and 14 of the Statement of Claim a complaint is made that the Minister failed to consider whether he was satisfied that sales in Sweden "were not suitable for use in determining" the price paid in Sweden. I have some difficulty in understanding precisely what case is sought to be made by these paragraphs but it is obvious, once again, that any such case will involve proof of what matters were before, and considered by, the Minister at the time of his decision.

15. Paragraphs 16 and 17 of the Statement of Claim refer to the matter of material injury to Australian industry: see s.8(2)(b) of the Act. It is alleged that there was no evidence before the Minister of material injury. This is an issue which can only be resolved by ascertaining what material, if any, was placed before the Minister relating to the operations of the Australian competitors of the applicant. The contents of any reports on those operations are likely to be important.

16. Paragraph 19 alleges various improprieties in the making of the declaration. The matters relied upon are partly procedural but they repeat the substance of some of the matters already mentioned.

17. Finally, by paras.20-23 inclusive, complaint is made of the Minister's failure to revoke the declaration. The basis of this complaint is not well spelled out but it appears that the applicant repeats in this context its earlier allegations, contending that the failure by the Minister to revoke the declaration in circumstances where it was not, in the first place, authorized to be made constituted a further legal impropriety.

18. The above analysis indicates that, with minor exceptions, all of the allegations made by the applicant depend directly upon the material considered by the Minister. The case on material injury depends upon the applicant being able to analyse that material so as to show that it did not furnish a basis upon which it was open to the Minister to be satisfied of material injury. In short, without some access to the documents in relation to which objection is taken the applicant would be effectively precluded from prosecuting its case.

19. It is desirable, in the public interest, that Australia's international obligations, and assurances given to particular persons on behalf of the Australian government, be honoured. But even that important value is not absolute. Like any other aspect of the public interest it must be balanced against any competing public interest relevant to the particular case. In Alfred Crompton Amusement Machines Limited v Customs and Excise Commissioners (1974) AC 405 -- a case concerning the disclosure of commercial information obtained in confidence -- Lord Cross of Chelsea, with whom the other members of the House of Lords agreed, said at pp.433-434:

"'Confidentiality' is not a separate head of
privilege, but it may be a very material
consideration to bear in mind when privilege
is claimed on the ground of public interest.
What the court has to do is to weigh on the
one hand the considerations which suggest that
it is in the public interest that the
documents in question should be disclosed and
on the other hand those which suggest that it
is in the public interest that they should not
be disclosed and to balance one against the
other."

This approach was adopted for Australia by the High Court of Australia in Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1. At p.43 Gibbs CJ said that "The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice". See also per Stephen J at pp.56-58 and per Mason J at pp.95-96.

20. As in Aflred Crompton and Sankey v Whitlam there is, in the present case, an aspect of public interest competing with the public interest in non-disclosure: that justice be not denied to a party because of an inability to obtain access to the documents. Although the Minister has put in issue the correctness of the allegations I have summarized, it is not suggested that the present proceedings are brought vexatiously or otherwise than in good faith. Under such circumstances access should only be denied when, and to the extent that, this is on balance essential in the public interest.

21. If it be the fact that the assurances of confidentiality made to the companies who supplied information to the Service were made without qualification of any kind, any disclosure to persons outside the Service represents a breach of assurance. This would be unfortunate but I do not think that the mere fact of breach of assurance is conclusive: any damage to the reputations of the Australian Customs Service and of the Australian government has to be set against the desirability of providing justice in Australian courts. Although the provisions of the GATT code are instructive as to the expectations of the international community regarding proper conduct as to confidentiality, they do not provide a legal barrier under Australian law to the disclosure of particular information. In any event the obligation under para.3 is not absolute. See the qualification inserted by footnote 10: that the parties to the agreement recognize that in some countries "disclosure pursuant to a narrowly drawn protective order may be required".

22. The proper approach, as it seems to me, is to go behind the mere promises of confidentiality and to examine the interest which they were designed to safeguard: the interest of the various companies in avoiding commercial disadvantage as a result of their supplying, at its request, information to the Australian Customs Service regarding relevant aspects of their commercial operations. If it is possible to protect that interest whilst simultaneously according to the applicant an opportunity properly to present its case to the Court, this is the appropriate course to follow.

23. The decision of the applicant not to press for access by its employees to the relevant information was, in my view, realistic. To allow access to such information by employees of a competitive company would be to expose to significant prejudice the suppliers of the information. No undertakings by individuals could remove the danger that the information thus gained would be used to the disadvantage of the suppliers. In practice it would be impossible for employees of Kanthal, in making decisions as to its operations, to put out of their minds the information they had gleaned. And even if this were possible, justifiable scepticism would remain. Companies approached for information in the future would be likely to be less co-operative or less frank.

24. However, in relation to access by the company's lawyers and by Mr Day the position is somewhat different. Dealing first with the lawyers; they are not involved in making commercial decisions on behalf of Kanthal. There could be no unwitting use by them of the information, to the disadvantage of the suppliers. For damage to occur there would have to be a deliberate disclosure by one or more of them of the information obtained. In practice it is highly unlikely that, if appropriate undertakings were given, there would be such a disclosure. On the other hand access by the lawyers may well suffice to enable decisions to be taken as to what documents should be tendered on behalf of the applicant in support of the case which it seeks to make. It seems to me appropriate, in the balancing exercise to which I have referred, to permit access by a limited number of identified lawyers -- solicitors and counsel acting in the principal proceedings on behalf of the applicant -- subject to their each signing an undertaking to the Court not to disclose to, or discuss with, any person, other than one or more of the other undertakers, the content of, or the information contained in, any document disclosed.

25. Counsel for the applicant submits that a similar view ought to be taken about the position of Mr Day. The affidavit of Mr Day shows that he is a qualified accountant who has given independent expert evidence in a number of courts and tribunals. On some occasions he gave, and had accepted, undertakings of confidentiality. Mr Day offers a similar undertaking in relation to any information which might be disclosed to him in the present case. Counsel for the applicant seeks access by Mr Day to the documents upon the basis that, as an experienced trade consultant, he is likely to be able to assist the lawyers in their comprehension of those documents.

26. Nothing has been put before the Court to reflect adversely upon Mr Day's integrity. I have no reason to doubt that he would abide by the constraints of any undertaking which he might give. Counsel for the Minister does not suggest otherwise. But he does submit that, nevertheless, Mr Day stands in a different position to that of the lawyers acting for the applicant. Mr Day is engaged full-time in advising a variety of clients upon trade matters. He is available to all and he may be called upon to advise a client whose interests conflict with those of the suppliers of the confidential information. As a trade professional, it is suggested, he would be more likely to recall the substance of the information than lawyers would be. Once that information became part of his general knowledge it might be difficult, counsel submits, for him to recall its source or to ensure that it was not used for the benefit of others.

27. Without casting any aspersion upon Mr Day, the apprehensions voiced by counsel cannot, I think, easily be dismissed. The position is not unlike that to which I referred in Hilton v Wells (1985) 59 ALR 281 at p.293 in connection with a submission that counsel and solicitors should be accorded access to information relating to telephone interceptions, those counsel and solicitors being engaged in protracted criminal proceedings to which that information was relevant. I referred to the possibility that, in the course of an ongoing relationship, an unwitting disclosure might occur and to the effect of the lawyers' having that information upon their giving full and frank advice. Without reaching a concluded view on the matter, it seems possible that similar dangers could arise if Mr Day is asked to advise other clients -- or even Kanthal itself -- in relation to a matter to which the confidential information is relevant. The same danger does not arise in respect of the lawyers acting in this case because their advice is unlikely to turn upon commercial aspects.

28. I would find it necessary, before ordering any disclosure to Mr Day, to know more than I presently do about the nature and range of his consultancies and, perhaps, to obtain from him some undertaking excluding certain consultancies for an appropriate future period. (I emphasise that in saying this I intend no disrespect to Mr Day. I would take the same view about anyone in his position). However, as it seems to me, it is not presently necessary to reach a firm view about this matter or to put Mr Day to the trouble of providing this information or any such undertaking. It is not yet apparent that it will be necessary for the applicant's legal advisers to have the assistance of a person such as Mr Day in interpreting the relevant documents. It seems likely that much of the relevant material will be in the form of lists of quantities, prices, etc. There are likely to be reports of officers of the Service analysing this material. Some interpretation of abbreviations or trade jargon may be necessary but I am confident that the solicitor for the Minister will assist in this regard, as he has done already in relation to some of the documents produced. If, after full consideration by the applicant's lawyers, there remains a problem of comprehension this will be the time to consider whether Mr Day's assistance is necessary; and access could then probably be confined to the specific documents or parts of documents in relation to which there was a problem. I think that the appropriate course is for me to decline to order that Mr Day have access at this stage but to grant leave to the applicant to make an application in respect of access to particular documents if so advised.

29. Before parting with the matter I venture two general comments. First, I referred at the outset of these reasons to the problem in this case being one of general application. It seems to me that the problem will arise almost inevitably in any proceedings concerned with a decision by the Minister to make an anti-dumping declaration. The same problem arose in a recent case, John Lysaght (Australia) Pty Limited v Minister for Industry, Technology and Commerce (NSW G.353 of 1986), in which I gave directions. There the challenge was to the Minister's decision not to make a declaration. In that case the confidential information had been submitted by overseas companies supplying steel to the Australian market. I was pressed with the view that any disclosure would seriously damage Australia's reputation overseas. Yet when the relevant material was examined it was apparent that much of the material received upon promise of confidentiality was material whose publication would not have caused those companies any commercial prejudice. Both during that hearing and the present hearing it occurred to me that the inherent problem appears to be exacerbated by an undue readiness of the Australian Customs Service to promise confidentiality. It must be remembered that it will usually be in the commercial interests of affected companies to assist the Australian Customs Service as much as possible. In the John Lysaght case, for example, the overseas suppliers were keen to negative the allegation of dumping. In the present case the Australian importers were presumably anxious to persuade the Minister that alloy steel products were being dumped in this country. I have no doubt that, in each case, much useful information could, and would, have been supplied even in the absence of a promise of confidentiality .

30. It appears from documents to which I was referred in the John Lysaght case that it is the practice of the relevant United States authorities to require non-confidential submissions in anti-dumping investigations and for them to receive on a confidential basis only such additional material as, by its very nature, must be kept confidential. This approach is consistent with para.3 of Art.6 of the GATT code. It is a course which would mitigate -- although it cannot entirely eliminate -- the present problem.

31. Secondly, in relation to material which is received on a confidential basis, it may be desirable for the Australian Customs Service to re-consider its usual form of assurance. Given the possibility of litigation -- whether under the Administrative Decisions (Judicial Review) Act, s.39B of the Judiciary Act 1903 or otherwise -- regarding the Minister's decision in a particular case, there can never be an absolute guarantee that information will not be required to be disclosed to persons outside the Service. As relevant persons, especially foreigners, may not realise this, it would appear to be more appropriate for the Service to substitute a qualified assurance for that now customarily given. The possibility of such a qualification seems to have been envisaged by the drafters of the GATT code: see footnote 10 to para.3 of Art.6.

32. In his affidavit Mr Tatnell referred, as a constraint on disclosure, to the provisions of s.16 of the Customs Administration Act 1985 and s.70 of the Crimes Act 1914. Section 16(2) of the former Act provides that "a person to whom this section applies" -- which term is defined by s.16(1) to include a person employed in the Australian Customs Service -- "shall not, except when required or permitted by law or for the purposes of the performance of the person's duties, disclose any information or produce a document to another person if the disclosure of the information or the production of the document would constitute a breach of confidence". Certain exceptions are provided by sub-s.(3).

33. Section 70 of the Crimes Act makes it an offence for a Commonwealth officer to publish or communicate "except to some person to whom he is authorized to publish or communicate it, any fact or document which comes to his knowledge, or into his possession, by virtue of his office, and which it is his duty not to disclose".

34. It is a feature common to both of these provisions that there is no prohibition imposed by them upon the disclosure of information by an officer in the course of his duties as such. The disclosure of documents on behalf of the Minister administering the Service for the purpose of fulfilling a legal obligation of discovery imposed by law upon the Minister is clearly a disclosure in the course of the officer's duties: cf Nestle Australia Ltd v Commissioner of Taxation (1986) 67 ALR 128 at p.131, the cases cited therein and the same case on appeal, (1986) 86 ATC 4,760.

35. No doubt for the above reasons, and notwithstanding the claim made in the affidavit, counsel for the Minister abandoned reliance upon either of those provisions as an argument for resisting disclosure of the documents.

36. In relation to costs, the proper order is that the costs of this motion be costs in the principal proceedings. Each party has had some success. Although access is granted, the extent of access is less than that sought by the applicant. But, more importantly, it seems to me that, there being no relevant precedent, some argument upon this difficult problem was almost inevitable. Both parties fully co-operated in the efficient resolution of the matter. Neither took an unreasonable position. It is proper to regard the costs as being part of the cost of resolving the principal issue between the parties; so that the party ultimately successful upon that issue should have the costs of the motion.