Deputy Commissioner of Taxation and Anor v. Kunz

Judges:
Vincent J

Court:
Supreme Court of Victoria

Judgment date: Judgment handed down 3 July 1990.

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Vincent J.

This is an application made pursuant to sec. 48(1) of the Proceeds of Crime Act 1987, in which the variation of a restraining order made under that Act is sought, for the purpose of obtaining the release of certain moneys held by the Official Trustee for payment to the Deputy Commissioner of Taxation. The matter arises in the following circumstances.

On 22 February 1989 the respondent was charged with a number of criminal offences, the nature of which is not significant for present purposes.

On 1 March 1989 the second-named applicant obtained a restraining order in respect of any property which the respondent then possessed, consequent upon which the Official Trustee took control of an amount of money which was then placed into an account with the Westpac Banking Corporation. The period of operation of the order was initially quite short but, by reason of subsequent extensions, it currently remains in force.

On 26 May 1989, and consequent upon the making of an application by the respondent shortly prior to the commencement of related committal proceedings, for variation of the order to enable him to meet the expenses involved in defending the charges laid against him, his Honour Hampel J. made an order, the relevant portion of which reads:

``By consent it is Ordered that subject to the Applicant furnishing to the Official Trustee a statement verified by oath or affirmation setting out particulars of the nature, location and value of all real and personal property in which the Applicant has any beneficial interest and making disclosure to the Official Trustee of the source of funds, if any, thus far paid to his legal representatives for the conduct of his defence arising out of and in connection with charges laid against him on the 22nd of February 1989, that so much of the property of the Applicant as is required to meet the costs and expenses of defending the said charges be released to his solicitors... Such costs and expenses to be

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agreed upon or in default of agreement to be taxed and to be paid out of the property of the Applicant controlled by the Official Trustee...''

On 15 February 1990 the first-named applicant issued notices of assessment with respect to the respondent's income tax liability totalling $762,021.84, which became due and payable on 20 March 1990.

Finally on 19 February 1990 a notice directed to the Official Trustee, and expressed as follows, was issued pursuant to sec. 218 of the Income Tax Assessment Act 1936:

``I DO BY THIS NOTICE REQUIRE you, being a person:

• a. by whom any money is due or accruing or may become due to;
• b. who holds or may subsequently hold money for or on account of;
• c. who holds or may subsequently hold money for or on account of some other person for payment to; or
• d. having authority from some other person to pay money to,

Leslaw Kunz (hereinafter referred to as `the taxpayer')... a taxpayer by whom the amount of $762,021.84 is due in respect of tax TO PAY TO THE COMMISSIONER so much of that money as is sufficient to pay the amount of $762,021.84 or the whole of the money if it is equal to or less than the amount of $762,021.84 AND if the money is now due by you to the taxpayer or is now held by you on behalf of the taxpayer, the payment to the Commissioner is required to be made forthwith, BUT if the money becomes due by you to the taxpayer in the future or is held by you on behalf of the taxpayer in the future, the payment to the Commissioner is required to be made forthwith upon the money so becoming due or held by you.''

A similar notice was served on the Westpac Banking Corporation in respect of the same money.

The respondent has lodged objections against the assessments and has requested the withdrawal of the notices. Although it would appear that his solicitors had previously been paid for legal costs and disbursements incurred up to 20 June 1989, the notices have been recognised by the Official Trustee to the extent that no further payment has been made, despite the fact that the order of Hampel J. remains in force and the criminal proceedings against the respondent have not yet been completed.

Whilst the Deputy Commissioner of Taxation claims to have an enforceable interest in the moneys held under the restraining order, it is acknowledged by counsel acting on his behalf that the Official Trustee would not be authorised to release moneys under his control without an order of the Court made pursuant to the provisions of the Proceeds of Crime Act.

In this situation, and in order to protect the public interest in collecting income tax, it was submitted that a variation to the restraining order ought to be made to permit the Official Trustee and the Westpac Banking Corporation to release the funds to the Deputy Commissioner. It was contended that if this were not done, and the payment of money to the respondent's solicitors pursuant to the order of Hampel J. were to be continued, the Deputy Commissioner's security over the money may disappear, despite the fact that it ought to take precedence.

Not surprisingly, the respondent objects to the making of any such order in circumstances where he would thereby be denied access to funds which he contends are required for the preparation and conduct of his defence to serious criminal charges.

At this stage it is perhaps desirable to set out the relevant portion of sec. 218 which reads:

``The Commissioner may at any time, or from time to time, by notice in writing (a copy of which shall be forwarded to the taxpayer at his last place of address known to the Commissioner), require -

• (a) any person by whom any money is due or accruing or may become due to a taxpayer;
• (b) any person who holds or may subsequently hold money for or on account of a taxpayer;
• (c) any person who holds or may subsequently hold money on account of some other person for payment to a taxpayer; or

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• (d) any person having authority from some other person to pay money to a taxpayer,

to pay to the Commissioner, either forthwith upon the money becoming due or being held, or at or within a time specified in the notice (not being a time before the money becomes due or is held) -

• (e) so much of the money as is sufficient to pay the amount due by the taxpayer in respect of tax or, if the amount of the money is equal to or less than the amount due by the taxpayer in respect of tax, the amount of the money; or
• (f) such amount as is specified in the notice out of each payment that the person so notified becomes liable from time to time to make to the taxpayer until the amount due by the taxpayer in respect of tax is satisfied,

and may at any time, or from time to time, amend or revoke any such notice, or extend the time for making any payment in pursuance of the notice.''

In support of the application Mr Pagone of counsel, who appears on behalf of the first-named applicant, has submitted that the Official Trustee falls within the definition of ``person'' within the meaning of sec. 218, and that in the circumstances of the present matter he must be regarded as holding the moneys under his control ``on account of'' the respondent who is a taxpayer.

Accordingly, he has argued that notices having been issued in respect of money belonging to the respondent and held on his account by the Westpac Bank and the Official Trustee, neither of those parties is lawfully able to deal with any such money in a fashion which will prevent compliance with them.

This proposition rested upon the decision of the High Court in
Clyne & Anor v. D.F.C. of T. & Anor 81 ATC 4429; (1981) 150 C.L.R. 1, where the effect of a purported assignment of a debt owed to a taxpayer and which was claimed to have been made in the period between the service of a sec. 218 notice and the debt becoming payable, arose for consideration. The position was outlined by Gibbs C.J. [ATC pp. 4433-4434; C.L.R. pp. 11-12] as follows:

``The conditions for the giving of a valid notice are laid down in sec. 218(1). If those conditions exist at the time when the notice is given there is a valid requirement in respect of the money to which the notice refers, which, in a case under para. (a), will be money which is due or accruing or may become due by the person to whom the notice is given to the taxpayer. The words by which the Parliament grants the power to make the requirement necessarily imply that the person to whom the requirement is given will obey it. Subsequent actions by the taxpayer cannot render the requirement nugatory or ineffective. If that were not so it would be possible for a taxpayer, in a case such as the present in which the notice required payment within seven days of the money becoming due, himself to obtain payment of the money immediately it became due, with the result that when the time came for compliance with the notice there would be no money to which the notice related. It would indeed be possible, in every case in which the money was not payable to the taxpayer at the time when the notice was given, entirely to defeat the purposes of the section. However, once the notice is given, it operates to prevent any subsequent dealing with the money which will prevent compliance with the notice when the time for compliance arrives. An assignment made by the taxpayer after the date of the notice will be ineffective to relieve the person to whom the notice is given of his statutory obligation to pay the money to the Commissioner. Notwithstanding the assignment, the money will be `due' at the time when it would have become payable to the taxpayer if it had not been for the subsequent assignment whose effect is to be ignored. Section 218(4) recognises that if it had not been for the notice other persons than the taxpayer might have acquired rights to the money, for any payment made in pursuance of the section is deemed to have been made `under the authority of the taxpayer and of all other persons concerned'.''

Whilst the order of Hampel J. was made prior to the issue of the sec. 218 notices, Mr Pagone submitted that that order created no charge over or interest of any kind in the money itself, and that for any such right to arise not only would it be necessary for a debt to become due to the respondent's solicitors but also that

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an appropriation be made by the Official Trustee of a sum of money to pay that debt. Therefore, although it would appear that a debt became due to the respondent's solicitors before the sec. 218 notices were issued, either by reason of an account which, according to the material before the Court, had been rendered on 21 December 1989 or by the incurring of legal costs and disbursements before the issue of the notices, on the basis of this argument, any right to payment from the money held had to be deferred in favour of the right of the Deputy Commissioner, whose position could be compared with that of a secured creditor with prior rights that entitled him to preference.

These submissions were supported by Mr Maxwell who appears on behalf of the second-named applicant whose involvement in the matter at all I regard as somewhat curious. It is rather disquieting to find a prosecuting authority, through its counsel, providing support for an application in which it would appear to have little real interest and which, if successful, may well restrict the capacity of the respondent to defend himself against charges laid by that authority.

Mr Finkelstein of Her Majesty's counsel, who appears as senior counsel on behalf of the respondent, submitted in response, first, that the service by the Deputy Commissioner of Taxation of sec. 218 notices upon the Official Trustee and the Westpac Banking Corporation in respect of any money held under a restraining order is legally ineffective, as the funds have been at all relevant times under the control of the Court to which such notices cannot be directed. No claim for preference could therefore be based upon them.

Second, it was contended that even if effect could be given to the notices the existence of the restraining order means that there is no money to which they could presently attach. He argued on this basis that, although the restraining order does not affect the ownership or title to any assets over which it operates, it removes those assets from the custody and control of the person concerned. Unless authorised or required by the provisions of the Act under which it is made, the order restrains any dealings with them until it lapses, is discharged, or is satisfied in accordance with the legislation. It could only be when a final accounting can be carried out in accordance with the terms of the order and the requirements of the Act under which it has been made, that it would be possible for the sec. 218 notices to attach to anything. In the present matter, the argument proceeded, although there is money being held by the Official Trustee and the Westpac Bank which technically belongs to the respondent, and although the Official Trustee must, of course, be mindful of his interests, it is not possible at this stage to determine which assets will eventually be recognised as being held on his behalf. It may be that, when the accounting exercise is carried out and money is appropriated in accordance with the requirements of the Act under which it has been restrained, it will be ascertained that there are no funds to be returned to him, in which case there would be no money over which the sec. 218 notice could operate. On the other hand, it may be determined that all or some part of the money held by the Official Trustee and the Westpac Bank was being held on his behalf, and in this situation the charge created by the sec. 218 notices would crystallise in favour of the Deputy Commissioner of Taxation.

The order made by Hampel J. however, it was submitted, not only removes the impediment which would otherwise exist by reason of the restraining order with respect to the legal costs incurred by the respondent, but in addition imposes an obligation upon the Official Trustee to release funds to meet these expenses. As that order predates the issuing of the sec. 218 notices and makes an appropriation of funds albeit of an unquantifiable amount, the interest which it creates must be given preference to any which might be considered to arise in favour of the Deputy Commissioner under the sec. 218 notices.

Finally, he argued that the applicants have not demonstrated that any sufficient basis exists which would justify the making of the orders sought. The desired variation could neither be described as ``ancillary'' to the orders already made within the meaning of sec. 48 of the Proceeds of Crime Act, nor as required in ``the public interest having regard to all the circumstances'', which would constitute the only other available head of power to do so and was, in fact, heavily relied upon by the applicants in the course of argument.

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Turning then to the first of these arguments, sec. 218 contains a definition of ``person'' which reads:

``218(6B) In this section -

• ...
• `person' includes a company, a partnership, the Commonwealth, a State, a Territory and any public authority (whether incorporated or unincorporated) of the Commonwealth or a State or Territory;...''

This definition does not either in its terms or, in my opinion, by implication include a court. As Pape J. remarked in
Cowan v. Stanhill Estates Pty. Ltd. (1966) V.R. 604 at p. 609:

``If you look at the definition of `court' in Halsbury's Laws of England 3rd ed., vol. 9, at p. 342, you will find that it is said there that the term `court' has, inter alia, the original meaning of the King's palace, and it has acquired the meaning of the place where justice is administered, and thence again the meaning of the persons who exercise judicial functions under authority derived either immediately or mediately from the King. That takes you back to the definition of `court' which you will find in Coke upon Littleton which is referred to in Stroud, 3rd ed., vol. 1, at p. 667. I should have thought for myself that you must regard the court here as one of the arms of government set up under the Constitution by direct royal authority, and it does seem to me to be very difficult in those circumstances to say that a provision in an Act which says that an officer shall not disclose information to any person is intended to apply to a court.''

A similar view, which was specifically directed to the section in question, was expressed by Rogers J. in Clyne v. D.F.C. of T. 83 ATC 4001 at p. 4006:

``In the case of sec. 218 Parliament has left no doubt of its general intention. It has armed the Commissioner of Taxation with a powerful and far reaching weapon to enable him to collect moneys from sundry third parties in satisfaction of the liability to tax of other taxpayers. The width of the provision has only recently been made clear by the decision of the High Court in Clyne v. D.F.C. of T. (supra).

The section enables the Commissioner, by service of a notice, to attach an undefeatable entitlement to moneys which may, at the time of service of the notice, not even be due and payable to the taxpayer. As the Chief Justice pointed out in Clyne (supra at ATC p. 4433; A.L.J.R. p. 555), `the section is obviously designed to confer exceptional powers on the Commissioner to facilitate the collection of tax'. The definition of `person' signals a clear intention by the Parliament of its wish to ensure that whoever it may be that has or will have money in his or its control, which might otherwise stand to the benefit of the taxpayer, should pay it to the Commissioner. On the other hand the definition makes no specific mention of Courts. For the reasons given by Pape J. I do not consider that a Court is a person in the ordinary sense of that word. The only expression in the enlarged meaning which subsec. (6) bestows on the word which could at all conceivably apply to Courts is `public authority'. In my opinion, on its proper interpretation, the definition should be read as not embracing Courts.''

In situations encompassed by the Proceeds of Crime Act the Official Trustee simply represents the mechanism by means of which the Court takes the property under its own control. He operates as a representative of the Court and within the parameters fixed by the Act itself is obliged to act as directed by it. He has, for practical purposes, no discretion to exercise with respect to property under his control other than that which is entrusted to him under a restraining order itself or which may be implied as being required to effect the implementation of the order. The Court makes the order, possesses the power to effect necessary variations, imposes what are considered to be appropriate conditions, or in appropriate circumstances authorises the release of restrained property. In other words, whilst the order remains on foot, it is subject to the continuing supervision of the Court. It would not, in my view, be appropriate to regard the Official Trustee as having control of any property held by him under such an order in an independent capacity. Nor do I consider that it would be reasonable to treat the nexus as broken because the Official Trustee, in turn,

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places money subject to such restraint into a bank account.

The notices served upon the Official Trustee and the Westpac Banking Corporation have accordingly no legal effect in the circumstances of the present case. They have created no interest or charge in favour of the Deputy Commissioner. Accordingly, in so far as the applicants' arguments rested upon the contention that an order for variation should be made in order to preserve the value of such an interest, it is misconceived.

For completeness in dealing with this aspect, I think that I should indicate that I consider that there are other significant obstacles lying in the path of the applicants which would produce the same result.

The effect of a notice under sec. 218 was, as has been earlier indicated, considered by the High Court in Clyne & Anor v. D.F.C. of T. (supra) where Brennan J. said [ATC pp. 4442-4443; C.L.R. p. 27]:

``The notice precludes the taxpayer from receiving money to the payment of which he would otherwise be entitled or become entitled, and it requires the third person in whose hands the money is or into whose hands it comes to pay it to the Commissioner at some time, but not earlier than when it would otherwise be due and payable. The giving of the notice thus affects the rights of the taxpayer who, once the notice is given, is statutorily divested of his right to payment of the whole or a part of the money specified in the notice. Whether the money is property in existence when the notice is given or whether it is property which comes into existence thereafter, the third party is obliged to hold and dispose of it in accordance with the notice.''

There is no dispute that a notice can be issued before any amount which represents a taxpayer's claimed income tax liability becomes due and payable; but it is to be noted that it can only have effect at the time and to the extent to which money becomes due to the taxpayer from some other person.

The notices which have arisen for consideration in the matter before the Court set out four bases upon which it alleged that the Official Trustee or the Westpac Bank may be, or may become, liable to make payment of moneys to the Deputy Commissioner of Taxation. In respect of each of them, it would appear that the reasoning of the members of the High Court in Clyne v. D.F.C. of T. (supra) is applicable. Whether money is regarded as due, being held on account of, held for payment to, or to be paid to a taxpayer pursuant to an authority granted by some other person, only money which the taxpayer is entitled to receive from the person to whom the notice is directed can be affected by such a notice. That person then becomes obliged to make payment of the sum concerned to the Deputy Commissioner of Taxation, but not before the time at which the taxpayer himself would otherwise have become entitled to receive it.

In those situations in which money is held on account for the taxpayer, this would appear to mean that the notice has operation at the time at which an accounting for and the identification of the amount of any money due to him could be required by the taxpayer. The expression ``on account of'' when used in sec. 218 has not, to my knowledge, been the subject of any consideration by the courts, although its meaning has, of course, arisen for determination in other contexts. In
Devaynes v. Noble, Clayton's case (1816) 1 Mew at p. 806, Sir William Grant when dealing with a current account between a banker and customer referred to the arrangement as establishing ``one blended fund, the parts of which have no longer any distinct existence''. The obligations which arise under such an arrangement were much later called by Buckley J. in
Re Footman Bower and Co. Ltd. (1961) 2 All E.R. 161 at p. 165 a ``blended obligation''. He also adopted the view that:

``In the case of a current account, where the debtor-creditor relationship of the parties is recorded in one entire account into which all liabilities and payments are carried in order of date as a course of dealing extending over a considerable period, the true nature of the debtor's liability is, in my judgment, a single and undivided debt for the amount of the balance due on the account for the time being without regard to the several items which as a matter of history contribute to that balance.''

Money which is held by the Official Trustee pursuant to a restraining order made under the

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provisions of the Proceeds of Crime Act can, in my view, be properly regarded as being held on account of the person from whose control it was taken; however the Official Trustee has, in relation to it, a ``blended obligation''. The restraining order establishes a system of statutory control over the assets to which possibly all other and certainly later arising rights must defer. This is not to say that other rights and interests are not or will not be recognised within the system of statutory control; indeed to some specific reference is made in the Act, whilst others can be accommodated for by the exercise of judicial discretion. Nevertheless, the fund must be administered and appropriated in accordance with the terms of the Act under which it has been seized.

It is not necessary in the context of the present matter to determine whether, if I am incorrect in my view that a sec. 218 notice cannot be directed to the Official Trustee as custodian of assets restrained under the Proceeds of Crime Act, such a notice could ever operate so as to restrict the manner in which the Official Trustee performs his duties. However a question may well arise in an appropriate case as to whether the powers vested in a court under the Proceeds of Crime Act and the responsibilities given to the Official Trustee, which it must be remembered were conferred by a statute enacted at a later time, should be interpreted as being confined in their operation by earlier provisions. There is certainly nothing in the language of the relevant sections of the Proceeds of Crime Act, in my opinion, which carries any such suggestion. Indeed, I think that it is relatively unlikely that the legislature contemplated that once property was restrained, the claims of the Deputy Commissioner might possibly take precedence over other claims of the Commonwealth itself in relation to the recovery of monetary penalties imposed in respect of the commission of criminal offences. If the interest of the revenue were to be so elevated, then it is surprising that the Official Trustee was not empowered to release moneys held for the purpose of discharging any taxation liability of the individual concerned.

In the present case the property is subject to a restraining order and to an order by Hampel J. both of which were made prior to both the issue and service of a sec. 218 notice. It is clear that a restraining order does not divest a person, the control of whose property is so taken, of any proprietary interest which he may have in it. Subsection (3) of sec. 43, in circumstances which fall within subsec. (4), enables the Court to impose appropriate conditions upon the order for restraint, and in particular, to make provision for meeting out of the property:

``(a) the person's reasonable living expenses (including the reasonable living expenses of the person's dependants (if any)) and reasonable business expenses;

(b) the person's reasonable expenses in defending a criminal charge;

(c) a specified debt incurred by the person in good faith (being a debt to which neither paragraph (a) nor (b) applies).''

It is not, I think, necessary to comment upon later provisions which deal with the lapse and discharge of restraining orders as well as the duties and limitations of liability of the Official Trustee, save to say that it is clear that the extent of the control which is exercised by the Official Trustee is strictly delineated. If, as in the matter under consideration, a court has ordered that provision be made for the payment of the reasonable expenses incurred by a person in defending a criminal charge, the Official Trustee must act in accordance with that direction. Without a variation of the restraining order of the type sought by the applicants in this proceeding, that Official Trustee would not be lawfully permitted to comply with a sec. 218 notice. If a notice of that type is effective at all, in my view, in relation to funds which are already subject to a restraining order, it could only operate after the processes commenced by the making of the restraining order are completed. Any such notice could not take effect so as to require the Official Trustee to pay money held by him to the Deputy Commissioner of Taxation until the specific order of the Court upon which it was held either lapses or is discharged in accordance with the provisions of the legislation. Any balance which is not appropriated pursuant to those provisions would then become subject to the notice and payable to the Deputy Commissioner. Until that time there is, in my opinion, not only no impediment to the allocation of funds to the respondent for the purpose of meeting the reasonable expenses of defending the charges laid against him but the Official

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Trustee is under a clear obligation to make such provision.

That, of course, does not end the matter as attention must be directed to the merits or otherwise of the application in circumstances where the respondent's liability to pay a substantial sum by way of income tax is unsatisfied. Turning then to the two lines of argument which were advanced on behalf of the applicants with respect to this aspect, the application clearly does not attract the operation of any of the specific provisions contained in sec. 48 on the basis of which it has been made. Nor in any real sense, could an order of the type sought be regarded as ``ancillary'' to the purpose or operation of the original restraining order. In
Smith v. Smith (1925) 2 K.B. 144 at p. 149, Banks L.J. when dealing with the use of this term stated:

``The action was brought for a declaration merely, without any other claim. What the Court had to decide was whether the county court had jurisdiction to deal with any such claim. In discussing that matter the Master of the Rolls says more than once that the right which the county court has under s. 89 of the Judicature Act is ancillary, that is to say, supplemental. It is an additional remedy, the making more effective a remedy for the one cause of action.''

A similar approach but in a quite different context was adopted by the High Court in
Grannall v. Marrickville Margarine Pty. Ltd. (1954-1955) 93 C.L.R. 55 at p. 77 where in the joint judgment of most of the members of the Court the following statement appears:

``... every legislative power carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter.''

It is only necessary to refer to the principal objectives set out in sec. 3 of the Proceeds of Crime Act to demonstrate that the provisions of that legislation are directed to quite different objectives to those of the Income Tax Assessment Act. The power conferred upon the Court in sec. 48 to make ancillary orders must be regarded as limited by the framework provided by the objectives and provisions of the Proceeds of Crime Act and the type and scope of the restraining orders which the Court is empowered to make. Such ancillary orders of their very nature must be supplemental or incidental to the restraining orders to which they are attached. The order sought in the present matter cannot be so regarded.

That still leaves for determination the question whether, in any event, a variation of the order should be effected in the public interest.

In my opinion the submission of Mr Finkelstein on this aspect to the effect that there is a far more persuasive public interest consideration to be taken into account than the protection of the revenue and that is the public interest involved in the possible deprivation of the ability of a person who is facing serious criminal charges to pay for his defence, possesses considerable force. The Proceeds of Crime Act itself recognises the importance of ensuring that an order restraining the property of a person should not operate in a fashion which would deny to him access to his own funds in order to meet the reasonable expenses incurred in defending the charges laid against him. As Gibbs A.C.J. (as he then was) remarked when dealing with a claim of Crown privilege with respect to the production of a document in
Sankey v. Whitlam (1978) 142 C.L.R. 1 at pp. 38-39:

``It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies.''

The possibility of practical impairment of the capacity of an individual to defend himself fully against serious criminal charges by reason of economic disadvantage must be viewed with considerable concern in any situation. Presumably, if the source of funds presently available to the respondent were to be denied to

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him by the granting of the application, he would then either become reliant upon already overburdened legal aid services funded out of the public purse, or left without adequate resources. In the case before the Court, at this level the matter involves a relatively straight-forward choice between the interests of the revenue and those of a person facing criminal charges to have access to those funds. In my opinion in such a conflict the rights of the respondent should prevail and the application be dismissed.