Ombudsman v Laughton [2005] NSWCA 339 (30 September 2005)

CITATION: The Ombudsman v Laughton [2005] NSWCA 339

FILE NUMBER(S):

40446/2005

HEARING DATE(S): 30 September 2005

JUDGMENT DATE: 30/09/2005

PARTIES:

The Ombudsman (Appellant)

Robert Leslie Laughton (Respondent)

JUDGMENT OF: Spigelman CJ Handley JA Basten JA

LOWER COURT JURISDICTION: Government and Related Employees Appeals Tribunal

LOWER COURT FILE NUMBER(S): PSP/25 of 2005

LOWER COURT JUDICIAL OFFICER: Senior Chairperson Lynch

COUNSEL:

PR Garling SC (Appellant)

SC Crawshaw SC and AA Hatcher (Respondent)

SOLICITORS:

Sparke Helmore (Appellant)

Jones Staff & Co (Respondent)

CATCHWORDS:

ADMINISTRATIVE LAW - Particular persons and bodies - Ombudsman - Immunity of - Where applicant for position in Ombudsman's office appealed decision to appoint another person - Whether immunity extends to matters of internal administration - Ombudsman Act 1974, s32, s35A - Government and Related Employees Appeal Tribunal Act 1980, s20

STATUTES - Interpretation - Maxim - Generalia specialibus non derogant - Discussion - Purposive Construction - Interpretation Act 1987, s33

LEGISLATION CITED:

Fire Brigades Act 1909-1956: s46

Freedom of Information Act 1989

Government and Related Employees Appeal Tribunal Act 1980: s20, s54

Interpretation Act 1987: s33

Law Reform (Vicarious Liability) Act 1983: s10

Ombudsman Act 1974: ss 32, 34, 35, 35A

Prisons Act 1952

Public Authorities Protection Act 1893 (UK)

Public Sector Employment and Management Act 2002: s 17; Sch 1; Sch 4, cl 2(b)

Public Sector Management Act 1988

Supreme Court Act 1970: s69

Water Administration Act 1986: s 19(1)

DECISION:

1. Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

40446/05

SPIGELMAN CJ

HANDLEY JA

BASTEN JA

30 SEPTEMBER 2005

THE OMBUDSMAN v ROBERT LESLIE LAUGHTON

Judgment

1 SPIGELMAN CJ: The respondent, Mr Laughton, was an unsuccessful applicant for a position in the office of the Ombudsman. He sought to appeal to the Government and Related Employees Appeals Tribunal (“GREAT”) against the Ombudsman’s decision to appoint another. In accordance with the provisions applicable to such an appeal, the respondent asserted that he had greater merit for appointment than the person appointed.

2 The Ombudsman challenged the competency of the appeal to GREAT. On 10 May the Senior Chairperson of GREAT held that the appeal was competent. The Ombudsman appeals to this court.

3 The Ombudsman asserts that the appeal to GREAT is a proceeding of a character prohibited by s 35A of the Ombudsman Act 1974 which provides:

“35A(1) The Ombudsman shall not, nor shall an officer of the Ombudsman, be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act unless the act, matter or thing was done, or omitted to be done, in bad faith.

(2) Civil or criminal proceedings in respect of any act or omission referred to in subsection (1) shall not be brought against the Ombudsman or an officer of the Ombudsman without the leave of the Supreme Court.

(3) The Supreme Court shall not grant leave under subsection (2) unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith.”

4 In order to determine whether s 35A, on its proper construction, applies to proceedings by way of an appeal to GREAT, it is necessary to have regard to s 32(1) of the Ombudsman Act which provides:

“32(1) Such staff as may be necessary to enable the Ombudsman to exercise the Ombudsman’s functions may be employed under and subject to the Public Sector Management Act 1988.”

5 The Public Sector Management Act 1988 was repealed by the Public Sector Employment and Management Act 2002 (the “2002 Act”). However, cl 2(b) of Schedule 4 to the 2002 Act provides that a reference in any other Act to the Public Sector Management Act 1988 is to be read as a reference to the 2002 Act.

6 The right of appeal to GREAT is created by s 20 of the Government and Related Employees Appeal Tribunal Act 1980 (the “GREAT Act”) which provides:

“20. Subject to and in accordance with this Part:

(a) an employee, being an officer within the meaning of the Public Sector Employment and Management Act 2002, may appeal to the Tribunal against a decision of an employer, being a Department Head within the meaning of that Act, to appoint or recommend the appointment of another such officer to fill a vacant office ...

...

on the ground that the appellant is, having regard to the provisions of any Act, statutory instrument, industrial award or agreement or any advertisement published in good faith in relation to the vacant office, being an Act, statutory instrument, industrial award or agreement or advertisement which is required to be applied or taken into consideration by the employer in respect of an appointment to the vacant office, more entitled to be appointed to the vacant office than the employee in whose favour the decision was made.”

7 In Schedule 1 to the Public Sector Employment and Management Act 2002 the Ombudsman is identified as the Department Head of the Ombudsman’s Office. The appointment of the successful officer instead of Mr Laughton was made in the exercise of a power given to the Ombudsman in that capacity by s 17 of the Public Sector Employment and Management Act 2002 which provides:

“17(1) Appointments to vacant positions in a Department are to be made by the appropriate Department head.”

8 There is some tension between s 32 and s 35A of the Ombudsman Act. Employment “under and subject to the Public Sector Employment and Management Act 2002” brings with it a right of appeal against the decision of the Ombudsman under s 20 of the Government and Related Employees Appeal Tribunal Act. If such an appeal were “civil proceedings in respect of a ... thing done ... for the purpose of executing ...” s 17 of the Public Sector Employment and Management Act, then the staff of the Ombudsman’s Office would be employed “under and subject to” the 2002 Act, but with no right to appeal. In that respect the staff would not be “employed under and subject to” the 2002 Act.

9 Mr P Garling SC who appears for the Ombudsman submitted that there was no relevant tension or inconsistency. He submitted the right to appeal to GREAT is not removed entirely. What s 35A does is impose certain pre-conditions on the exercise of that right of appeal, namely that the leave of the Supreme Court must be obtained under s 35A(2), noting that such leave can only be granted if the court comes to the state of satisfaction for which s 35A(3) provides, namely that there is a substantial basis for an allegation of bad faith in the relevant decision.

10 This is one way of characterising the interrelationship between the sections. However, the limited circumstances in which the Supreme Court is able to grant leave is, on the Appellant’s submissions, such as to deprive the right of appeal under s 20 of the Government and Related Employees Appeal Tribunal Act of almost all of its intended content. Section 20 is directed, as I have quoted above, to an assertion by an applicant to GREAT that that person is “more entitled to be appointed to the vacant office” than another. Limiting challenges to allegations of bad faith in the appointment process would deprive the right of appeal of almost all of its intended content.

11 Mr Garling SC also drew the court’s attention to the difficulties that may arise in the context of an appeal to GREAT by reason of the provisions of s 34 and s 35 of the Ombudsman Act. Section 34 relevantly states:

“34(1) The Ombudsman shall not, nor shall any officer of the Ombudsman, disclose any information obtained by the Ombudsman or officer in the course of the Ombudsman’s or officer’s office, ...”

12 Provision is then made for circumstances in which such disclosure is permissible.

13 Section 35 relevantly provides:

“35(1) The Ombudsman shall not, nor shall an officer of the Ombudsman who is not a member of the Police Force, be competent or compellable to give evidence or produce any document in any legal proceedings in respect of any information obtained by the Ombudsman or officer in the course of the Ombudsman’s or officer’s office.”

14 Sub-section (2) goes on to make provision for certain exceptions to the prohibition contained in s 35(1).

15 The submission on behalf of the Ombudsman was that a successful appointee who was an existing officer of the Ombudsman’s office could not rely on the detail of his or her involvement in investigations or reports of the Ombudsman for the purposes of any appeal to GREAT. No doubt the same would apply to an existing officer who was not appointed and became an applicant to GREAT.

16 No issue of disclosure or evidence to GREAT has yet arisen. It is not desirable in this case to give any final interpretation of the scope of the prohibitions in either s 34(1) or s 35(1) with respect to an appeal to GREAT.

17 It may well be that secrecy provisions of this character, including s 34, which is not atypical of many other statutory provisions, will affect the efficacy of an appeal to GREAT. It may be that special arrangements will have to be made and that the kinds of submission or evidence to GREAT will have to be in more general terms than would otherwise be the case. However the impingement on the efficacy of a GREAT hearing is not such, in my opinion, as to be entitled to determinative weight when considering whether or not there can be no GREAT hearing of any kind by reason of the application of s 35A.

18 In my opinion there is a tension between the two provisions, namely s 32 and s 35A of the Ombudsman Act. That tension can be resolved as a matter of construction by reading the Act as a whole and applying the principle that Parliament intends that different sections of the same Act will operate harmoniously, requiring a process of reconciliation. (See Institute of Patent Agents v Lockwood [1894] AC 347 at 360; Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 at 448.)

19 The maxim of statutory construction generalia specialibus non derogant reflects an underlying principle that a legislature, which has created a detailed regime for regulating a particular matter, intends that regime to operate in accordance with its complete terms. Where any conflict arises with the general words of another provision, the very generality of the words of which indicates that the legislature is not able to identify or even anticipate every circumstance in which it may apply, the legislature is taken not to have intended to impinge upon its own comprehensive regime of a specific character.

20 In a passage quoted with approval by Barton ACJ in Maybury v Plowman [1913] HCA 43; (1913) 16 CLR 468 at 474, Wood V-C said in Fitzgerald v Champneys (1861) 2 John & H 31 at 54[1861] EngR 821; ; 70 ER 958 and 968:

“The reason in all these cases is clear. In passing the special Act, the legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstances of that special case; and, having so done, they are not to be considered by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and regulated.”

21 This approach applies with particular force where the tension or conflict arises between two sections of the same Act and the need to read the Act as a whole requires a process of reconciliation of the character to which I have referred.

22 Sometimes there is a difficulty in deciding which is the general and which is the special provision. In this context it cannot, however, be correct to characterise s 35A as a specific provision on immunity and s 32 as a general provision with respect to the employment of staff, which picks up the right to appeal found in s 20 of the GREAT Act. Section 35A is a general provision granting the Ombudsman immunity from suit. The specificity of s 32 is such that it assists in construing a word of indeterminate scope, such as the word “executing” in s 35A, in such a way as to reconcile the operation of the two sections.

23 The proposition that the generalia specialibus maxim applies only where two provisions cannot be reconciled (see e.g. Purcell v Electricity Commission of New South Wales [1985] HCA 54; (1985) 59 ALJR 689 at 692) does not prevent the underlying principle being invoked when determining whether or not a conflict is in fact irreconcilable. (See Royal Automobile Club v Sydney City Council (1992) 27 NSWLR 282 at 294F-G).

24 I agree with the Chief Justice of Israel who rejected the proposition that the canons or maxims of interpretation are legal norms and said:

“The canons reflect semantic rules, not legal rules. They are not unique to law but rather are rules of general applicability for understanding language. They are common to all legal systems and systems of interpretation. They belong to the field of language. They help determine the range of a legal text’s semantic possibilities. They determine the meaning that the text is capable of bearing. They do not determine the legal meaning that the text bears.” (Aharon Barak, Purposive Interpretation in Law (2005) at 107.)

25 To determine the legal meaning it is necessary to adopt a purposive interpretation. The purpose of s 35A is to protect from challenge the substantive conduct of the Ombudsman, namely the investigations and reports and other such functions for which the Ombudsman Act and other Acts provide. The words “executing (an) Act” do not necessarily extend to the performance of any statutory function or the exercise of any statutory power. They may not encompass matters of internal administration such as employment of staff.

26 In my opinion s 35A is concerned with the exercise by the Ombudsman of his or her statutory powers and functions with external effect (such as the Freedom of Information Act 1989 investigation considered in The Ombudsman v Koopman (2003) 58 NSWLR 182.) Section 32 of the Ombudsman Act is not of that character. It is concerned with the employment of staff, an internal matter not arising in the course of an investigation or report or any other such function. An appeal under s 20 of the GREAT Act is not, in my opinion, a civil proceeding “in respect of (a) thing done ... for the purpose of executing this or any other Act.”

27 The appeal should be dismissed with costs.

28 HANDLEY JA: I agree with the Chief Justice but will add additional reasons of my own. Section 35A(1) is a privative or protective section which protects the Ombudsman from legal proceedings “in respect of any act, matter or thing done or omitted to be done for the purpose of executing this or any other Act”.

29 In my judgment these are words of limitation which confine the protection conferred by the section to acts or omissions done or omitted in exercising or refusing to exercise the statutory powers of obtaining information and investigating complaints conferred by the Act. The words are not equivalent to anything done or omitted by the Ombudsman in his or her official capacity.

30 A similar restrictive interpretation of privative or protective provisions in statutes is well established. The scope of the Public Authorities Protection Act 1893 was considered by the House of Lords in Bradford Corporation v Myers [1916] 1 AC 242. The section gave protection to public authorities for “any act done in pursuance, or execution, or intended execution of any Act of Parliament, or of any power duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty or authority”.

31 The Corporation relied on this section when sued by an occupier who had purchased coke from the municipal gasworks. As a result of the negligence of an employee of the corporation the coke was tipped through the shop window of the purchaser in the course of its delivery.

32 Lord Buckmaster LC said at 247 that the Act only applied where:

“... the act is one which is either an act in the direct execution of a statute, or in the discharge of public duty, or the exercise of the public authority.”

33 In the same case Viscount Haldane said at p 251, speaking of the words of the section:

“I do not think that they can be properly extended so as to embrace an act which is not done in direct pursuance of the provisions of the statute or in the direct execution of the duty or authority.”

34 A similar question came before the High Court in Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; (1962) 109 CLR 105. The Board relied upon a protective section, s 42 of its Act, to answer an action for negligence arising from the conduct of a fireman driving his fire engine to the scene of a fire along a public street. The act in question of course did not require any special statutory authority.

35 Section 46 of the Act provided:

“The Board, the Chief Officer, or an officer of the Board, exercising any powers conferred by this Act or the by-laws shall not be liable for any damage caused in the bona fide exercise of such powers.”

36 The High Court held that the Board was not entitled to rely on the section in that case.

37 Kitto J said at p 117 that the protection given by the section was only available in respect of damage caused in doing things actually within the direct authorisation of the Act or the by-laws.

38 In my view the words “for the purpose of executing this or any other Act” refer only to what might be called the external exercise or the adverse exercise of powers conferred by the Act in the course of obtaining information or otherwise for the purpose of conducting an authorised investigation, and do not refer to matters of internal administration. For those additional reasons I agree that the appeal fails and should be dismissed with costs.

39 BASTEN JA: I agree with the conclusions reached by the Chief Justice and with the order he proposes. Subject to the comments which follow, I also agree with his Honour’s reasons and those of Justice Handley.

40 The maxim relied upon by the Tribunal, that a general provision cannot derogate from a special or more specific provision is, as the Chief Justice recognises, sometimes difficult to apply. Where appropriate, it is preferable to apply the provisions of the Interpretation Act 1987 (NSW), being the statutorily prescribed approach to statutory interpretation. The well-established approach to the construction of protective provisions, such as s 35A of the Ombudsman Act 1974, accords with the requirement of s 33 of the Interpretation Act that a purposive approach be adopted in construing a provision of an Act, in preference to a construction that would not promote the purpose underlying the Act.

41 As Handley JA has noted, a protective provision contained in s 46 of the Fire Brigades Act 1909-1956 (NSW), was construed in Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; (1962) 109 CLR 105 as not conferring immunity from suit for negligence in the management of a motor vehicle on a public street. In addition to the passage in the reasons of Kitto J referred to by Handley JA, Dixon CJ stated (at 109-110):

“In my opinion, upon the proper construction of s 46 it does not cover the use of the roadway by fire brigade vehicles for the purpose of proceeding to a fire nor does it cover performance of functions of such description of the Board of Fire Commissioners by its servants or agents. When s 46 speaks of the bona fide exercise of the Board’s powers it appears to me to be referring primarily to the exercise of powers which of their nature will involve interferences with persons or property.”

To similar effect, Kitto J stated (at 116-117):

“Section 46 operates, then, to derogate in a manner potentially most serious, from the rights of individuals; and a presumption therefore arises that the Legislature, in enacting it, has chosen its words with complete precision, not intending that such an immunity, granted in the general interest but at the cost of individuals, should be carried further than a jealous interpretation will allow.

What, then, is the strict meaning that should be given to the description of the damage which may be caused with immunity from liability? It is limited to damage caused ‘in’ the bona fide exercise of powers. In my opinion the meaning is that the immunity attaches in respect only of damage resulting from an act which, if it had not been negligent, would have been the very thing, or an integral part of or step in the very thing, which the provisions of the Act other than s 46 or by the by-laws which gave power in the circumstances to do, as distinguished from an act which was merely incidental to, or done by the way in the course of, the exercise of a power.”

42 The approach adopted in Ardouin has been followed in a number of cases including, recently, Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 199 CLR 575. In construing s 19(1) of the Water Administration Act 1986 (NSW), being the protective provision having operation in that case, Gleeson CJ and Gummow J stated at [4]:

“This should be done both by looking at the subsection in the context of the Administration Act as a whole and on the footing that the immunity conferred by such a provision should not ‘be carried further than a jealous interpretation will allow’, to repeat a statement by Kitto J in [Ardouin].”

At [18], their Honours concluded:

“These considerations support a jealous construction of s 19(1) to limit what otherwise would be the rights of plaintiffs and to immunise the Corporation from action only in respect of those positive acts in the exercise of functions ‘which of their nature will involve interferences with persons or property’. The supply of water by the Corporation to the appellants was not the exercise of a function which of its nature involved such an interference.”

All members of the Court adopted this approach to the question of construction.

43 Although employment in the public service is subject to statutory control and the power of statutory authorities to make appointments and employ staff is a power conferred by statute, it does not follow that a different approach should be taken from that which has been applied in relation to common law claims. Although the exercise may involve the reconciliation of two apparently conflicting statutory provisions, each of which should be given full effect within its respective sphere of operation, it would be surprising if protective provisions which are commonly found in a form similar to s 35A of the Ombudsman Act were to override the protections generally applicable to employment in the public service.

44 The conclusion that s 35A had no such effect may be confirmed by reference to its operation within the legislative scheme of liability for wrongful acts of public authorities in New South Wales. Thus, pursuant to the Law Reform (Vicarious Liability) Act 1983, the Crown may be liable for a tort committed by a member of the public service or a statutory authority, despite the fact that the individual enjoys a statutory exemption: see s 10.

45 Further, there is an issue as to whether s 35A of the Ombudsman Act has any potential operation with respect to a right of appeal conferred on an employee by s 20 of the Government and Related Employees Appeal Tribunal Act. Section 35A refers to “any civil or criminal proceedings”. Clearly an appeal with respect to an appointment is not a criminal proceeding. Nor does it involve an “action or claim for damages”, being the language of an earlier protective provision in the Prisons Act 1952 (NSW): see Vezitis v McGeechan [1974] 1 NSWLR 718, in which the word “action”, although capable of referring to every sort of legal proceeding, was read in its context as referring only to an action for damages. (See also Cowell v Corrective Services Commission (1988) 14 NSWLR 714, 721E-725 (McHugh JA) and 726E-731C and 739E-F (Clarke JA, Priestley JA agreeing.) Although the matter was not fully argued, my tentative view is that an appeal under s 20 is not a “civil proceeding” to which the Ombudsman is “liable” for the purposes of s 35A. A different conclusion was reached in Ainsworth v The Ombudsman (1988) 17 NSWLR 276, 287, but that case was concerned with judicial review proceedings relating to the execution of the statutory function of investigation. In any event, I agree with the Chief Justice that it is not a proceeding “in respect of any act ... for the purpose of executing this or any other Act”.

46 In his written submissions, the Respondent raised a procedural issue concerning the manner by which the Appellant sought to challenge the decision of the Tribunal. He asserted that, if the Appellant were correct, it would follow that the decision of the Tribunal was a nullity and there would be no decision against which to appeal. Accordingly, he said that the Appellant should have brought its claim under s 69 of the Supreme Court Act 1970 (NSW) for relief in the nature of prerogative relief. That course would have required the joinder of the Tribunal.

47 The submission should be rejected, both as a matter of authority and in principle. As a matter of authority, the general proposition that a decision made without jurisdiction cannot be the subject of an appeal was rejected by the Privy Council in Calvin v Carr [1979] 1 NSWLR 1 at 8D-G. Further, the reasoning in that case was applied directly to the right of appeal under s 54 of the GREAT Act in Clisdell v Commissioner of Police (1993) 31 NSWLR 555 at 559-560. Sheller JA, with whom Handley JA and Cripps JA agreed, concluded that to treat a determination of the Tribunal “as totally void in the sense of being legally non-existent ... would be unreal”. He accepted the comment by Bowen CJ in the Full Court of the Federal Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338 at 344 that there is “nothing unusual in holding that an administrative decision which is legally ineffective or void is susceptible of appeal”.

48 As a matter of principle, the question should be addressed as one of statutory construction. Gaudron and Gummow JJ in Minister of Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [46], after quoting a passage from the speech of Lord Wilberforce in Calvin v Carr stated:

“In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as ‘void’, ‘voidable’, ‘invalid’, ‘vitiated’ or, even, as ‘nullities’. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made.”

Their Honours continued, noting that the term “appeal” may indicate that the decision has “sufficient vitality to provide the subject matter of such a curial proceeding” and that “the Parliament may give an administrative decision whatever force it wishes”, subject to constitutional limits: at [47]. To similar effect Hayne J noted at [147]:

“The inquiry about the legal consequences to be attributed to what was done in September 1998 must begin and end with the Act.”

49 In the present circumstances, the question must be answered by reference to the GREAT Act, s 54 of which provides:

“54 Appeal to Supreme Court on point of law

A person being:

(a) an employer against whose decision an appeal is brought,

(b) an appellant with respect to that decision, or

(c) where the appeal is an appeal under section 20, the employee in whose favour that decision is made,

may, subject to this Part, appeal to the Supreme Court against any decision of the Tribunal on a question of law.”

Whenever “an appeal” is made to the Tribunal pursuant to s 20 of the Act, there is at least an attempt to engage the jurisdiction of the Tribunal. If the respondent to the appeal seeks to challenge the jurisdiction, a question of law (and possibly a question of fact) will be raised. It was not suggested that the Tribunal could not properly address such a challenge and, absent some cogent reason indicating otherwise, the Act should be construed as conferring on the Tribunal jurisdiction to consider a challenge to its own jurisdiction: Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391 (Dixon J). Given this statutory context, the reference to “any decision of the Tribunal on a question of law” in s 54 should be understood to include a decision with respect to jurisdiction. Nor should the right of “appeal” so granted be limited to a case where the Tribunal has correctly held that it had jurisdiction or incorrectly held that it lacked jurisdiction. A statutory provision conferring a right to invoke the jurisdiction of this Court should not be construed so as to depend on whether the matter in dispute is ultimately determined one way or another.

50 I would reject the submission that the reliance on the statutory right of appeal granted by s 54 was misconceived.

51 For these reasons, I agree with the conclusion reached by the Chief Justice.

52 SPIGELMAN CJ: The order of the court is that the appeal is dismissed with costs.

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LAST UPDATED: 06/10/2005