Re Michael Oldfield; James Partridge and Michael Green v Joseph W Cahill [1987] FCA 48; 18 IR 50 (19 February 1987)

FEDERAL COURT OF AUSTRALIA

Re: MICHAEL OLDFIELD; JAMES PARTRIDGE and MICHAEL GREEN
And: JOSEPH W. CAHILL
Nos. 11, 12, 14, 17, 20 and 21 of 1986
Industrial Law - Practice and Procedure
18 IR 50

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.

CATCHWORDS

Industrial Law - registered organizations - election - whether suggestion of loss or disadvantage on account of support or opposition to a candidate - meaning of "on account of" - whether mens rea an element of offence.

Practice and Procedure - criminal offences - whether case to answer.

Conciliation and Arbitration Act 1904 s. 171(2) Crimes Act 1914 s. 21A.

He Kaw Teh v. R. [1985] HCA 43; (1985) 157 CLR 523

Riley v. Brown (1957) 1 FLR 40.

HEARING

SYDNEY
19:2:1987

Counsel for Prosecutors: Mr. R. Goot

Counsel for Defendant: Mr. A. Shand Q.C., Mr. J. Shaw Q.C., Mr B. Hodgkinson

Solicitors for Prosecutors: Peter J. Green & Co.

Solicitors for Defendant: White, Barnes & McGuire.

ORDER

THE COURT ORDERS THAT the further hearing of the matters is adjourned until 10.15am on Monday 23rd February 1987 at Sydney.

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

DECISION

The defendant is before the Court upon six informations and summonses, charging him with six offences under s. 171(2)(a)(iii) of the Conciliation and Arbitration Act 1904 ("the Act"). He has pleaded not guilty to each charge.

2. There are three prosecutors. Each prosecutor has charged the defendant that between 26th May 1986 and 31st July 1986 at Sydney in the State of New South Wales, he did suggest loss or disadvantage to the prosecutor on account of his support for a candidate in connection with an election for an office. In each of those three cases, the particulars of the alleged offence are as follows:

"Between approximately 8.30a.m. and 10.45a.m. on 26th
May, 1986 you suggested to the prosecutor that he would
lose some of his employment entitlements; that he would
be in a parlous position and that he would be sacked if
he supported Brian McCarney as a candidate for election
to the office of Federal Secretary of the Federated
Municipal and Shire Council Employees' Union of
Australia."

Those three charges are the subject of the matters numbered 11, 14 and 20 of 1986. In the remaining three matters, each of the prosecutors has charged that between 26th May 1986 and 31st July 1986 at Sydney in the State of New South Wales the defendant did suggest loss or disadvantage to the prosecutor on account of his opposition to a candidate in connection with an election for an office. In each of those cases, the particulars are as follows:

"Between approximately 8.30a.m. and 10.45a.m. on 26th
May, 1986 you suggested to the prosecutor that he would
lose some of his employment entitlements; that he would
be in parlous position and that he would be sacked if he
did not support the Union ticket for election of
offices(sic.) of the Federated Municipal and Shire
Council Employees' Union of Australia."

3. When Mr. Goot of counsel, who appeared for the prosecutors, announced the closure of the prosecutors' case, Mr. Shand Q.C., who appeared with Mr. Shaw Q.C. and Mr. Hodgkinson for the defendant, made a submission that the defendant has no case to answer in respect of any of the charges. The submission was based on a number of points. Before dealing with them, it is desirable to set out the effect of the evidence as it stands. In so doing, I am not to be taken as making any finding on the evidence, but merely to be indicating upon what evidence the prosecutors may rely which, if unchallenged, might justify findings of fact against the defendant, according to the standard of proof required in a criminal case.

4. The Federated Municipal and Shire Council Employees' Union of Australia ("the Union") is an organization of employees, registered pursuant to the Act. Its affairs in New South Wales are conducted by its New South Wales division. At all relevant times, the defendant was the General Secretary of the New South Wales division. Each of the prosecutors was an elected officer of the New South Wales division, having duties of a full time nature. Mr. Oldfield was an industrial officer, Mr. Partridge was the Branch Secretary of the Public Utilities Salaried Officers Association Branch, a branch of the New South Wales division of the Union, and Mr. Green was an organizer with responsibilities relating to salaried members.

5. In May of 1986, an election was in progress for the office of Federal Secretary of the Union. Elections were also in progress for executive positions in the New South Wales division. The candidates for the office of Federal Secretary were Brian McCarney, who was the incumbent, and David Croan.

6. On or about 7th May 1986, each of the prosecutors received a circular memo addressed to all members of the Union's staff, dated that day, advising of a meeting of Union staff (presumably of the New South Wales division) to be held on 26th May 1986 at 8.30am. The circular stated:

"The purpose of this meeting is to advise the names of
the candidates who will have the total support of the
Union staff for the vacant positions in the forthcoming
Union Elections to commence on 1 July 1986, and
finalized at noon on 31 July 1986."

A further circular dated the following day advised of the dates of opening and closing of the ballot and stated:

""A How-to-Vote" ticket will be forwarded in the near
future and you are required to support the official
"How-to-Vote" ticket."

7. Shortly prior to, or at the beginning of, the meeting on 26th May 1986, each of the prosecutors received a circular with attached sample how-to-vote forms relating to the various elections, including that for Federal Secretary. The how-to-vote material recommended a vote for Mr. Croan in the election for Federal Secretary. The circular urged that the how-to-vote card, in its final form, be placed on notice boards at various depots, and urged support for the candidates designated in the form. It also suggested that a how-to-vote card would be forwarded to each member at the time of the issue of ballot papers.

8. On 26th May 1986, at about 8.30am, there was a meeting attended by the full-time officers and employees of the New South Wales division of the Union, including the defendant and the three prosecutors. The meeting occupied some two hours or more, and was taken up with discussion about the coming elections and the support of various candidates in them. The evidence crucial to these charges is set out in detail. Evidence in chief was given by Mr. Oldfield in the following terms:

Q. "Who was the first to speak?"

A. "Mr. Cahill."

Q. "Can you recall, doing the best you can, what he
said?"

A. "First of all, he said that having regard that the
meeting is at union time, 8.30 in the morning, he
expects the meeting to be very quick. He then said
that he has made a decision on a team to be
selected for the elections and he expects that team
to be fully supported by all the officials of the
union, those who do not support the team would be
in a parlous position."

Q. "Do you recall whether anyone said anything in
relation to that expression?"

A. "Yes. Jim Partridge asked Mr Cahill what does he
mean by the term "parlous", and was told he would
get the sack."

Q. "What were the words that Mr Cahill used, can you
recall?"

A. "Yes. He said that he would "take you to the
executive and have you sacked"."

...

Q. "Was anything else said in relation to support for
or against McCarney?"

A. "Yes. Mr Cahill said that, "It is imperative that
Mr McCarney be opposed, and it is more imperative
that all the officials endorse the action." I said
I would not, and again he said "Well then, we will
have to deal with that at the appropriate time."
When asked what that meant, he said, "I will take
you to the executive and have you sacked." I said,
"Well then, take me to the executive tomorrow night
and have me sacked, if that's the case, because I
will not change my mind," to which he replied, "The
timing of going to the executive will be mine and
not yours"."

Mr. Oldfield was not questioned as to the detail of this evidence in cross-examination.

9. In Mr. Partridge's evidence in chief, the following evidence was given:

Q. "How did the meeting commence, what was the
format?"

A. "The format went something along these lines; the
general secretary addressed the meeting, in fact
opened the meeting and he said the meeting had been
called to give total support for the ticket and
that all the officials would be required to do so.
He further said there would be no place in the
organization for any official that did not fully
support the ticket."

Q. "During the course of the meeting was that
statement, the last statement that you have made
which you say was made by Mr Cahill, repeated?"

A. "Yes, I can recall him repeating that."

Q. "On how many occasions?"

A. "He said it at least twice."

Q. "Did he say anything further at that time, that is
to say in opening the meeting in relation to the
elections and in particular the federal secretary's
position?"

A. "He said that a decision had been taken to oppose
Brian McCarney for the position of federal
secretary with our candidate David Croan and he
continued to offer some reasons why that had taken
place.

...

He then said that any official that did not fully
support the ticket would be in a parlous position
at which time I interjected and said to him, "What
is happening, Joe?" and he replied very quickly
back to me, he said, "It means they will be
sacked"."

The words "What is happening, Joe?" in this answer may have been incorrectly transcribed; the witness may have said "What does that mean, Joe?". Further in his evidence in chief, Mr. Partridge gave the following evidence:

Q. "Can you recall whether anything was said by Mr
Green at that time in relation to anything further
that was said by Mr Green at that time in relation
to McCarney?"

A. "He said, he made a statement, he said, "Joe, I am
sick of your threats". He said, "I am not going to
support your action against McCarney, if you are
going to sack me, do it. Do not threaten me"."

Q. "What did Mr Cahill say?"

A. "He replied to that, he said, "Don't worry, Mick, I
will sack you but in my own time"."

Q. "Was there a response from Mr. Green?"

A. "He said that to him again, he said, "Don't
threaten, Joe, take me to the executive tomorrow
night", it would have been the next day the
executive was meeting, he said, "Don't threaten me,
take me to the executive". At that stage both Mick
Oldfield and myself made a comment, I believe Mick
said it first, he said, "Joe, my position is the
same as Mick Green. If you are going to sack him
you will have to sack me too", and I repeated much
the same statement and then he leaned back and he
said, "Don't worry, you will all be sacked but I
will do it when it suits me, not when it suits
you." I recall he repeated that statement to my
knowledge."

In cross-examination of Mr. Partridge, the following evidence was given:

Q. "What do you say followed the mention of the words
"parlous position" at that meeting?"

A. "He said any official that, as I recall, any
official that did not fully support the ticket
would be in a parlous position."

Q. "And what followed that?"

A. "Then I said, "What does that mean, Joe?""

Q. "What followed your saying, "What does that mean"?"

A. "Well, he said words to the effect they will be,
you will be sacked."

Q. "Was it "you" or "they"?"

A. "I think it was "they" because his statement was in
the plural."

Q. "You" can be plural, can it not? Do you think it
was "you"?"

A. "No, no."

Q. "Well, you said "they" or "you"?"

A. "Yes, but his statement was any official who did
not - from my recollection - any official he was
referring to."

Q. "Was not this what followed the mention of "parlous
position" and the question that you say you asked
that he said in these words directly thereafter
that you would be or they would be taken to the
executive?"

A. "I do not recall that."

Q. "Were not the words "take you to the executive and
have you sacked"?"

A. "I do not recall that."

Q. "You claim that he just made the direct statement
that he, that is Joe Cahill, would have you
sacked?"

A. "No, the words that I remember were something like
they will be sacked. He did not say I, he said
they."

Q. "He did not indicate that it was going to be him
that did it?"

A. "No, they are the words I remember."

...

Q. "The fact was, was it not, that Mr Green called
upon Mr Cahill to sack him at once or immediately
or some such expression?"

A. "No. I beg your pardon. My recollection was that
Mick Green said to Joe Cahill, "Joe, I have had
enough of your threats". He said words that he
would not oppose Mr McCarney and "If you are going
to sack me, do so. Don't threaten me"; and Joe
replied to that, that I recall, "Don't worry. I'll
sack you but in my own time" and Mick Green came
back and said, "Don't threaten me. Take me to the
executive tomorrow night". Those are the words I
recall, to the best of my knowledge."

...

Q. "He never said, "I am going to have you sacked", or
words to that effect, referring to people who did
not support the ticket?"

A. "I think I have already said on two occasions when
I challenged him on the statement of a parlous
position, that the words, "They'll be sacked," and
I further said in response to the statements Mick
Green made about the threats, that he said on a
couple of occasions words, "Don't worry" and I
thought it was, "I'll sack you but when it suits
me", he said, "but in my own time", and then Mick
Green replied to that, "Don't threaten me. Take me
to the executive tomorrow night," and then both
Mick Oldfield and myself said, "Well, if
you're going to sack Mick Green you'll have to sack
us too," and then Joe replied to that, "Don't
worry, you'll all be sacked but when it suits me,
not when it suits you." That is the words I
recall."

...

Q. "I am suggesting to you that Mr Cahill never said,
"You'll all be sacked"?"

A. "They are the words I remember."

10. Mr. Green's evidence in chief contained the following:

Q. "Did he say anything as to the purpose of the
meeting?"

A. "He said, "These are the candidates officially
endorsed and that anyone that does not support them
will find themselves in a difficult position after
the election"."

Q. "Can you recall whether there was any comment made
in relation to that by anyone at the meeting?"

A. "Yes, Mr Partridge asked Mr Cahill, "What does that
mean?""

Q. "And what response was there?"

A. "Mr Cahill said, "It means you will be sacked"."

...

Q. "Was there anything else said, from your
recollection, in which the expression "sacking" or
"sacked" was used?"

A. "Yes, there was."

Q. "What was that?"

A. "I said to Mr Cahill that if he was going to sack
me he should take me to the executive meeting the
following night and sack me there, because I would
not support him regarding Brian McCarney."

Q. "What did Mr Cahill say to that?"

A. "He said that he would sack me when he was ready,
not when it suited me."

Mr. Green was cross-examined at length as to exactly what was said, but it is unnecessary to refer in detail to this cross-examination.

11. Two further aspects of the evidence must also be referred to. Some weeks prior to the meeting of 26th May, in or about April 1986, each of the prosecutors had a separate conversation with the defendant. Each of the prosecutors stated that he would not support any action which might be taken to oppose Mr. McCarney in the election for Federal Secretary. At the meeting itself, the defendant made statements to the effect that Mr. McCarney had developed an association with socialist left officials within the Union in Victoria, and that if he were re-elected as Federal Secretary the officials in the New South Wales division would lose some of their entitlements, of which the socialist left officials did not approve. These entitlements included such things as salary rates, untaken sick leave and long service leave.

12. All of the charges are laid in reliance upon s. 171(2)(a)(iii) of the Act. Because questions arise of the construction of this provision, it is convenient to set out the whole of s. 171(2):

"171(2) A person shall not, in or in connection with
an election for an office-

(a) threaten, offer or suggest any violence,
injury, punishment, damage, loss or
disadvantage for or on account of, or to
induce-

(i) any candidature or withdrawal of
candidature;

(ii) any vote or omission to vote;

(iii) any support or opposition to any
candidate; or

(iv) any promise of any vote, omission,
support or opposition; or

(b) use, cause, inflict or procure any violence,
injury, punishment, damage, loss or
disadvantage for or on account of any such
candidature, withdrawal, vote, omission,
support or opposition."

13. Mr. Goot on behalf of the prosecutors conceded that the evidence concerned with loss of entitlements such as salary, sick leave and long service leave, by officials of the New South Wales division of the Union, did not establish, or contribute to establishing, an offence under s. 171(2)(a)(iii). In my view, this concession is correct. It is common during an election campaign to suggest to voters that consequences disadvantageous to them will occur as a result of the election of an opponent. Such disadvantageous consequences are predicted to arise by reason of the incompetence or malevolence of the opponent, and not by reason of any action of the person making the suggestion, or any person associated with him or her. It is extremely unlikely that Parliament intended by a provision such as s. 171(2) of the Act to make such a form of campaigning illegal. The sort of loss or disadvantage contemplated by the section must be associated in some way with the person who makes the suggestion.

14. Mr. Shand sought to place some reliance upon the differences between the accounts given by the three prosecutors of what was alleged to have been said by the defendant on 26th May 1986. Such reliance is inappropriate to a submission that there is no case to answer. The real question when such a submission is made is whether evidence exists which would justify the court in convicting. Unless the evidence is so obviously inherently unreliable that it could not reasonably be accepted, the court should not uphold a submission that there is no case to answer, merely because differences appear between the accounts of various witnesses. It may be that, upon consideration of the evidence at the final stage, including any evidence which the defendant may lead, it is possible to reconcile the different accounts. It may be that, upon examination of the whole of the evidence, the court accepts the account of one witness, or the accounts of some witnesses, and is unable to place reliance upon conflicting accounts. At that stage, the question is whether the offence is established beyond reasonable doubt. To dismiss the charges at this stage because of inconsistencies between the evidence of the prosecutors would not be proper.

15. Mr. Shand also urged that the Court should hold that the offences created by s. 171(2) of the Act are offences which require the proof of mens rea, or a blameworthy state of mind on the part of the defendant. He relied upon the principles laid down in the judgments of the majority of the High Court of Australia in He Kaw Teh v. R. [1985] HCA 43; (1985) 157 CLR 523, especially at pages 528-545, in the judgment of the learned Chief Justice. Applying these principles, I accept that a blameworthy state of mind is a necessary element of each of the offences charged. It is unlikely that Parliament intended to punish innocent statements which might have the unintended effect of conveying to some person (for instance) loss or disadvantage on account of that person's support or opposition to any candidate in an election within a registered organization. Since Act No. 37 of 1972 the maximum penalty for an offence under the section has been a fine of $500.00 or imprisonment for six months, or both. This is an indication of the seriousness with which Parliament views the offence it has created, and consequently an indication that an unintentional act is not to be punished. Further, as Mr. Shand submitted, the words "for or on account of, or to induce" carry with them a suggestion of intended consequences.

16. The view that a blameworthy state of mind is an essential element of the offences charged does not necessarily lead to the conclusion that the defendant has no case to answer on the present charges. Once again, it is inappropriate to raise the question of mental element by way of submission that there is no case to answer, on facts such as the present. There is undoubtedly evidence upon which the Court could find that whatever was said by the defendant was said deliberately, with the intention of producing a certain result connected with the election for the office of Federal Secretary. That being the case, the charges cannot be dismissed at the present stage on that ground.

17. A related submission was that any suggestion made by the defendant was not such as could be carried out by the defendant, and that the prosecutors were well aware of that fact. Each of the prosecutors swore that he was elected to his position by the members of the New South Wales division of the Union, under the Act. The rules of the New South Wales division of the Union contain a provision, in r. 33, designed to prevent the rules infringing the prohibition laid down in s. 133(1)(f) of the Act. This is a provision that elected officers cannot be dismissed from their offices unless they have been found guilty of misappropriation of the funds of the Union, a substantial breach of the rules of the Union or gross misbehaviour or gross neglect of duty, or have ceased according to the rules of the Union to be eligible to hold the office concerned. It was contended by Mr. Shand that the prosecutors could only be sacked by the Executive of the New South Wales division, upon a charge under r. 33 having been made out, after compliance with the procedures laid down in the rules of the New South Wales division, and after the prosecutors had been afforded natural justice. It was also contended that, on the evidence, the prosecutors were aware of this. Accordingly, any suggestion that they would be sacked was a suggestion which the defendant had no power to carry through, and could be ignored.

18. In my view, the matter is not as simple as Mr. Shand submitted. Although it is true that the prosecutors could not be sacked for refusing to support the defendant's chosen candidate in the election for the office of Federal Secretary, it may also be true that they could be brought before the Executive upon some other charge or charges, which would not have been availed of had they supported Mr. Croan. There was evidence of an exchange at the meeting of 26th May 1986, in which it was suggested that Mr. Green would be sacked because of some incident or incidents involving him at Broken Hill. The inference may be drawn that the Broken Hill matters would not have led to his dismissal, but for his refusal to co-operate in the election campaign for Mr. Croan. The mere absence of legal authority to bring to fruition a suggestion of loss or disadvantage does not necessarily mean that no offence has been committed where such a suggestion is made. The proposition may be tested by supposing a suggestion that a person would be deprived of his or her property in return for supporting a particular candidate in an election. Such a suggestion would be nonetheless an offence simply because the proposed deprivation of property would be an unlawful act, a wrong which would be righted by a court in subsequent legal proceedings. On the facts of the present case, if the defendant had purported to sack the prosecutors, or if he had taken them before the Executive on charges which were falsely laid, or which did not fall within the rules of the Union, the Court could act under s. 141 of the Act to order that all persons concerned treat any dismissal from office as null and void. There would still be loss or disadvantage to the prosecutors arising from their purported sacking, and from the necessity to bring legal proceedings to correct the position. Compare the reasoning of the Commonwealth Industrial Court in Riley v. Brown (1957) 1 FLR 40, especially at page 45, where a suggestion that a meeting of members of an organization could recommend to its State Executive that a collector lose his position was held to be an offence under s. 171(3) of the Act, the disadvantage concerned being the placing of the collector's position in jeopardy. The charges cannot therefore be dismissed on this ground.

19. Leaving aside for the present the differences between the accounts of the prosecutors of what was said at the meeting on 26th May 1986, the effect of the evidence quoted above is that the defendant intimated to the prosecutors that they would be sacked if they did not support Mr. Croan against Mr. McCarney for Federal Secretary. In terms, the suggestion was that sacking would, or might, flow from a failure to take a positive step, namely to support Mr. Croan. Nothing in the evidence conveyed any suggestion by the defendant that any consequences would follow the prosecutors supporting Mr. McCarney; indeed the evidence discloses that, although the three prosecutors were friends of Mr. McCarney, and hoped he would survive the challenge, there was no issue at the meeting of 26th May related to any positive act of any of the prosecutors to support Mr. McCarney. Similarly, there was no issue of any positive act of opposition to Mr. Croan. The prosecutors were being given to understand that consequences adverse to them would follow if they did not take the positive step of supporting Mr. Croan.

20. The charges are that the defendant suggested loss or disadvantage to the prosecutors on account of their support for Mr. McCarney, and on account of their opposition to Mr. Croan. Unless, as Mr. Goot argued, a suggestion based on a refusal to take a positive step to support Mr. Croan can be regarded as constituting a suggestion based on opposition to Mr. Croan or support for Mr. McCarney, the charges have not been made out. The submission put by Mr. Goot was partly that, on the evidence, the prosecutors were shown to be supporters of Mr. McCarney, and partly that refusal to support Mr. Croan was the equivalent of opposition to Mr. Croan. The first proposition is true in the sense that the prosecutors wanted Mr. McCarney to be re-elected. The second proposition is true in the eyes of those who believe that anyone not with them is against them. The difficulty is that the Court is not trying the question whether the prosecutors actually supported Mr. McCarney or opposed Mr. Croan, but the question whether the defendants suggested loss or damage "on account of" support for Mr. McCarney or opposition to Mr. Croan. The phrase "on account of", in this context, means "in consideration of, for the sake of, by reason of, because of" (the Compact Edition of the Oxford English Dictionary, 1971). In order to establish charges such as the present, s. 171(2) requires not only that there should be a person who is doing or has done or proposes to do some act in support of or opposition to a candidate, and a suggestion of loss or damage, but that the suggestion be in consideration of, for the sake of, by reason of or because of such act. In other words, the suggestion of loss or damage must in some way be conditioned on the actual support or opposition.

21. So to construe s. 171(2) is not to leave a loophole. A suggestion of loss or damage to persuade a person to do an act by way of support or opposition to a candidate would amount to the offence of suggesting loss or damage "to induce" support or opposition. The presence of the phrase "to induce" is an added reason for construing the words "on account of" in the manner set out above. If the words "on account of" encompassed attempts to persuade a non-supporter to support, or a non-opposer to oppose, the words "to induce" would be superfluous. Alternatively, one set of facts would constitute two entirely separate offences, those of suggesting loss or damage "on account of" support or opposition, and suggesting loss or damage "to induce" support or opposition. It is unlikely that Parliament intended that such a duplication should occur.

22. In the present case, there is no evidence which would justify a court in finding that any suggestion of loss or damage made by the defendant was in any way in consideration of, for the sake of, by reason of, or because of any support by any of the prosecutors for Mr. McCarney. Nor would the evidence justify a finding that any suggestion was made of loss or damage in consideration of, for the sake of, by reason of, or because of opposition to Mr. Croan. It follows that the charges as laid have not been made out.

23. But for the provisions of s. 21A of the Crimes Act 1914, the Court would be required to dismiss all six charges. Section 21A provides as follows:

"21A.(1) If at the hearing of any indictment,
information or summons any objection is taken for an
alleged defect therein in substance or in form, or if
objection is taken to any variance between the
indictment, information or summons and the evidence
adduced at the hearing in support thereof, the court may
make such amendment in the indictment, information or
summons as appears to it to be desirable or to be
necessary to enable the real question in dispute to be
determined.

(2) If in any such case the court considers that
the defendant has been misled by the form in which the
indictment, information or summons has been made out, it
may adjourn the hearing of the case for such period as
it thinks fit and may make such order as to the costs of
the adjournment as it thinks proper.

(3) The power of the court under sub-section (1)
shall not be exercised in cases where the court
considers that the required amendments cannot be made
without injustice to the defendant."

No application was made by Mr. Goot for leave to amend any information. Accordingly, no submission has been made by either the prosecutors or the defendant on the question of amendment. Since s. 21A appears to impose upon the Court a duty to permit amendment in certain circumstances, it is important that the parties should be given the opportunity to make submissions on the question of amendment. At this stage, therefore, I make no order other than an order further adjourning all six matters until Monday 23rd February 1986, when the matters are scheduled to proceed in any event unless dismissed, for the purpose of allowing the parties to make submissions on the question of amendment.