French CJ, Gummow J, Hayne J, Heydon J & Keifel J
The present litigation arises out
of a special investigation conducted by the first respondent, the Australian
Crime Commission ("the ACC"), known as Operation Wickenby. In the
course of its investigation, the ACC issued a notice under s 29
of the Australian
2002 (Cth) ("the ACC
Act") requiring an accounting firm ("the Accountants") to
produce documents concerning a number of individuals and entities, including
the appellant ("Mr Hogan"). He has been a public figure for
many years, in particular since the success of the film "Crocodile
Dundee": See Hogan v Koala Dundee Pty Ltd
(1988) 20 FCR 314; Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553.
Act, an examiner may by notice in writing served on a person require
that person, on pain of committing an offence by non-compliance (s 29(3),
(3A)), to produce documents relevant to a "special ACC
operation/investigation" (as defined in s 4(1))
to the person specified in the notice (s 29(1)).
In his reasons for judgment delivered on 19 December 2007 in a related Federal Court proceeding, Emmett J recorded that the ACC accepted that the ACC Act does not abrogate the right or duty of a recipient of a s 29 notice to claim legal professional privilege on behalf of a person (whether the recipient of the notice or a third party) who holds the privilege: MM v Australian Crime Commission (2007) 244 ALR 452 at 459. The litigation which has reached this Court has been conducted on that footing. It also appears to have been accepted that the powers of the ACC would not extend to the use or dissemination of documents to the content of which the privilege attached, and that such use or dissemination might be restrained by injunction.
The institution of the Federal Court proceeding
Federal Court proceeding which has given rise to this appeal was commenced
on 23 February 2006 by application made by Mr Anthony Stewart and
filed as NSD 373 of 2006.
Mr Stewart is an adviser to Mr Hogan who gave instructions to, and
received advice from, the Accountants on behalf of Mr Hogan. By his
application Mr Stewart sought, inter alia, to restrain the ACC and the
second respondent, the Chief Executive Officer of the ACC, from using or
disseminating those documents produced by the Accountants to the ACC over
which Mr Stewart claimed legal professional privilege on Mr Hogan's
behalf. The jurisdiction of the Federal Court was conferred by both s 39B(1)
and par (c) of s 39B(1A)
of the Judiciary
1903 (Cth) as an injunction was sought against an officer or officers of
the Commonwealth, in a matter arising under a federal law, the ACC
Act. In response the ACC contended that the documents were not brought
into existence for the dominant purpose of requesting or providing legal
advice and that, in any event, the documents were made in furtherance of a
crime or fraud such that no privilege existed.
On 11 May 2006 Mr Hogan was joined as the second applicant in the proceeding. On 21 July 2006 Emmett J held that prima facie, and with minor exceptions, the documents in dispute were subject to legal professional privilege enjoyed by Mr Hogan: A3 v Australian Crime Commission (No 2) (2006) 63 ATR 348. On 17 November 2006 a further amended application was filed in which Mr Stewart was no longer named as an applicant in addition to Mr Hogan: See Hogan v Australian Crime Commission (No 4) (2008) 72 ATR 107 at 116. Mr Hogan continued his claim for relief to protect those documents in the ACC's possession in respect of which he asserted privilege. The ACC maintained its submission that the crime or fraud exception applied.
The section 50 orders
Emmett J made a number of orders in reliance upon s 50 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"). As it then stood s 50 stated:
The Court may, at any time during or after the hearing of a proceeding in the Court, make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth.
points respecting s 50
should be made immediately. The first is that s 50
qualifies the general provision in s 17(1)
of the Federal
that the jurisdiction of the Federal Court is to be exercised in open court.
The second concerns the phrase "the administration of justice". In
reading what follows in these reasons it should be borne in mind that, to
adapt remarks of Mason CJ in R v Rogerson (1992) 174 CLR 268 at 276-277,
in no sense does the ACC administer justice; that duty was entrusted
relevantly to the Federal Court.
The s 50 orders made by Emmett J variously prohibited publication of the name and address of both Mr Hogan and Mr Stewart, affidavits and exhibits thereto, and the reasons for judgment delivered by Emmett J on 21 July 2006. Some of those orders were sought by Mr Hogan, and others were sought by the ACC. In each case, the party not seeking the s 50 order either supported or, at the least, did not oppose the making of the order. Those orders were made because each of the parties, for his or its own reasons, desired that details of, and much of the evidence in, the proceeding not be made publicly available. The ACC desired to keep secret the result of the exercise of its powers of investigation under the ACC Act, and Mr Hogan his identity and financial affairs.
The discovery application
8 June 2007 Mr Hogan sought orders that the ACC provide discovery
in relation to its case that the crime or fraud exception to privilege
applied. On 9 August 2007, Mr Hogan filed an amended motion to
that effect and Emmett J ordered the ACC to conduct enquiries and
produce a list of documents concerning the inferences said to support the
crime or fraud exception. The list was produced by the ACC and supplied to
Mr Hogan, as later explained in these reasons.
response, Mr Hogan filed a motion on 7 December 2007 seeking from
the ACC further and better discovery with respect to its case that the crime
or fraud exception applied. This application was heard by Emmett J on
19 May 2008.
support of Mr Hogan's discovery application his solicitor, Mr David
Peter Rydon, affirmed an affidavit on 13 February 2008. The affidavit
of Mr Rydon was read in court by Mr Hogan's counsel on 19 May
2008 at the hearing of the application and thereby became evidence in the
proceeding. Emmett J had been provided with a copy of Mr Rydon's
affidavit in advance, and allowed it to be filed in court at the hearing.
The exhibit to Mr Rydon's affidavit, exhibit DPR-1, contained material
divided into a number of parts. Of critical importance in this appeal are
the documents behind tabs C and E ("the parts C
and E documents"). It was upon these documents that the argument
in this Court was focused.
points should be made immediately with respect to the parts C
and E documents. First, they were not among the documents in respect of
which the contested claim of legal professional privilege was made by Mr Hogan.
Secondly, they were put in evidence by Mr Hogan as a step in support of
his case that the privilege was not, as the ACC contended, defeated by the
crime or fraud exception.
document in exhibit DPR-1 was referred to in the proceeding as "the
Inference Schedule". The Inference Schedule had been produced by the
ACC pursuant to orders made by Emmett J on 19 December 2006. Order 1
made on that day required the respondents to "file and serve a schedule
identifying the inferences the respondents will contend at the hearing of
this matter can be drawn from the evidence on which they rely". The
Inference Schedule sought to detail the inferences that could be drawn, as
to the alleged involvement of Mr Hogan in tax evasion schemes, from
documents in the ACC's possession. The Inference Schedule had been served on
Mr Hogan on 8 February 2007, but was not then filed. However, it
formed part of exhibit DPR-1 to Mr Rydon's affidavit, which was
ultimately read in Mr Hogan's case and filed in court on 19 May
part E documents in exhibit DPR-1 comprise file notes and accounting
advices, created by the Accountants, together with certain other
communications, all of which concern Mr Hogan's taxation and financial
affairs ("the Accounting Advices"); Mr Rydon, in assembling
these materials, believed they were among the documents produced by the
Accountants to the ACC in response to the s 29
However, it is important to note that the case presented by Mr Hogan to this Court does not turn upon the protection of any legal professional privilege which might have attached to these documents; rather, it was submitted that there had been a failure by the Federal Court to protect the "confidentiality interest" of Mr Hogan.
The section 50 order respecting the Inference Schedule and the Accounting Advices
reading Mr Rydon's affidavit at the hearing on 19 May 2008,
counsel for Mr Hogan sought an order under s 50
in respect of parts of exhibit DPR-1. Counsel informed the Court that
immediately prior to the hearing, counsel for the ACC indicated that the ACC
now opposed the making of any further s 50
orders and indeed foreshadowed an application to vacate the existing s 50
for Mr Hogan proposed the making of a s 50
order, limited until further order, so that the hearing of his client's
discovery application could proceed without delay. He suggested that, should
the ACC bring on its application for vacation of s 50
orders then existing, the Court could "revisit the question of
confidentiality in globo".
for the ACC did not oppose the making of that s 50
order. On 19 May 2008 Emmett J made an order under s 50
restricting the publication of the whole of the parts C and E
documents, the whole of the documents behind tab A of exhibit DPR-1
and eleven pages behind tab D to the parties and their legal advisers.
The order was not expressed as made until further order, but from the
transcript preceding the making of the order this appears to have been the
intention of the parties.
His Honour further ordered Mr Hogan to file any motion for orders under
on or before 9 June 2008.
the hearing counsel for Mr Hogan relied upon the Inference Schedule to
identify the ACC's allegations of crime or fraud in respect of which Mr Hogan
sought further discovery, and the Accounting Advices to contradict the ACC's
assertion that it had no documents or evidence which adversely affected
those allegations. Mr Hogan's discovery application succeeded and
Emmett J ordered the ACC to repeat the review process, in compliance
with the orders made on 9 August 2007, by 1 July 2008.
Success on the privilege claim
on 1 July 2008 the course of the litigation took a significant change
in direction. The ACC abandoned its reliance on the crime or fraud exception
to privilege and requested the Court to relist the proceeding. On 4 July
2008 orders were made by consent that, inter alia, the ACC return the
privileged documents to Mr Hogan and destroy any information which was
derived from or reproduced the contents of those documents. The consent
orders made on 4 July 2008 also vacated orders made on 19 May
2008, which had imposed the further discovery obligations on the ACC.
The orders made on 4 July 2008 vindicated Mr Hogan's claim with respect to the privileged documents and secured their return to him. The controversy as to whether Mr Hogan's claim to legal professional privilege could be properly maintained was resolved but the orders did not dismiss the proceeding. Mr Hogan's second further amended application was not dismissed until orders were made by consent on 19 January 2009. Those orders were the result of a judgment delivered by Emmett J in which he refused Mr Hogan's application for further relief that the ACC ensure that persons with knowledge of the privileged material no longer be involved in Operation Wickenby, or any similar investigation, and addressing the question of costs: Hogan v Australian Crime Commission (No 4) (2008) 72 ATR 107.
The next stages in the litigation
is the next stages of the proceeding which have led to the present appeal.
On 15 July 2008 Mr Hogan filed a motion in which he moved for
orders that, "notwithstanding the disposal of these proceedings",
the orders made under s 50
remain in force in relation to the material and documents identified in an
exhibit to an affidavit affirmed by Mr Rydon on 14 July 2008. That
material included, of relevance to this appeal, the Inference Schedule and
the Accounting Advices. For its part, on 24 July 2008 the ACC filed a
motion seeking orders under s 50
restricting publication of certain affidavits not including Mr Rydon's
Then on 5 August 2008 the litigation took a further change in direction. The third respondents, Nationwide News Pty Limited ("News") and John Fairfax Publications Pty Limited ("Fairfax"), filed a motion seeking:
leave pursuant to O 46 r 6(3) of the Federal Court Rules to inspect the documents held by the registry in relation to the proceeding; and
the vacation of all s 50 orders previously made.
All three motions, those by Mr Hogan of 15 July 2008 and the
ACC of 24 July 2008, and that of News and Fairfax, were heard by Emmett J
on 20 August 2008.
Section 59 of the Federal Court Act authorises the making by the Judges of Rules of Court relating to the practice and procedure to be followed in Registries of the Court. Order 46 of the Federal Court Rules is headed "Registries". Order 46 r 6(3), so far as material, states:
Except with the leave of the Court or a Judge, a person who is not a party to a proceeding must not inspect any of the following documents in the proceeding:
Rule 6(4) provides to the effect that a person not a party to a proceeding must not inspect any document in the proceeding where it is not otherwise specified in r 6.
application by News and Fairfax was filed in the principal proceeding No NSD 373
of 2006, but appears to have instituted a new "matter" in the
sense of Ch III of the Constitution,
being the controversy arising under s 59
of the Federal
Court Act and respecting the grant of leave under O 46 r 6(3)
(cf DJL v Central Authority
(2000) 201 CLR 226 at 237 .
The one proceeding may comprise a number of Ch III "matters": Truth About Motorways Pty Ltd
v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591
at 624 .
The application was dealt with on the apparent basis that the continued
operation of any s 50
order respecting material News and Fairfax sought to inspect would lead the
Court to refuse leave under O 46 r 6(3). Hence the focus upon s 50
in the reasons given in the Federal Court.
21 August 2008, Emmett J made orders giving effect to his
conclusions in relation to most of the material in dispute, but reserved his
decision in relation to the Inference Schedule and the Accounting Advices.
His Honour ordered that all s 50
orders previously made in the proceeding be vacated. His Honour also gave
leave to News and Fairfax to inspect and copy specified documents, including
Mr Rydon's affidavit of 13 February 2008 and exhibit DPR-1 thereto
but not the Inference Schedule or the Accounting Advices. The Inference
Schedule and the Accounting Advices were made the subject of a s 50
order until further order.
Honour published his reasons on 29 August 2008 (P v Australian Crime
FCA 1336; (2008) 250 ALR 66)
and made further orders. Order 1 of those orders was amended by order
of 12 February 2010 made by Emmett J after the hearing in this
Court. The result has been to vacate all s 50
orders in the proceeding, and to extend leave, granted to News and Fairfax
on 21 August 2008 under O 46 r 6(3) to inspect and copy
documents, to the Inference Schedule and the Accounting Advices. It was from
the vacation of the s 50
order made on 21 August 2008, restricting publication of the Inference
Schedule and the Accounting Advices, that Mr Hogan sought leave to
appeal to the Full Court of the Federal Court.
The Full Court granted leave to appeal, but by majority (Moore and Jessup JJ; Gilmour J dissenting) dismissed the appeal on 19 June 2009: Hogan v Australian Crime Commission (2009) 177 FCR 205. In this Court, Mr Hogan seeks relief which would have the effect of reinstating the s 50 order with respect to the Inference Schedule and the Accounting Advices and dismissing the O 46 r 6(3) application by News and Fairfax.
The construction of s 50
has been assumed, no doubt correctly, that an order made under s 50
of the Federal
Court Act may be made until further order and, in any event, may be
vacated if the continuation of the order no longer appears to the Court to
be necessary in order to prevent prejudice to the administration of justice
or the security of the Commonwealth. As a general proposition, a court
remains in control of its interlocutory orders and a further order will be
appropriate, for example, where new facts and circumstances appear or are
discovered, which render unjust the enforcement of the existing order: See Adam P Brown Male
Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177-178.
As it appears in s 50, "necessary" is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 234, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth "suggests Parliament was not dealing with trivialities". Further, as indicated earlier in these reasons:
s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and
"the administration of justice" spoken of in s 50
is that involved in the exercise by the Federal Court of the judicial power
of the Commonwealth; this is a more specific discipline than broader notions
of the public interest.
is insufficient that the making or continuation of an order under s 50
appears to the Federal Court to be convenient, reasonable or sensible, or to
serve some notion of the public interest, still less that, as the result of
some "balancing exercise", the order appears to have one or more
of those characteristics.
it appears to the Federal Court, on the one hand, to be necessary to make a
particular order forbidding or restricting the publication of particular
evidence or the name of a party or witness, in order to prevent either
species of prejudice identified in s 50,
or, on the other hand, that that necessity no longer supports the
continuation of such an order, then the power of the Federal Court under s 50
is enlivened. The appearance of the requisite necessity (or supervening
cessation of it) having been demonstrated, the Court is to implement its
conclusion by making or vacating the order. The expression in s 50
"may ... make such order" is to be understood in this sense.
may tend to distract attention from the particular terms of s 50
to describe the Federal Court as embarking upon the exercise of a
"discretion" when entertaining an application under s 50: Dwyer v Calco Timbers Pty Ltd
(2008) 234 CLR 124 at 138-139 .
Once the Court has reached the requisite stage of satisfaction, it would be
a misreading of s 50
to treat it as empowering the Court nevertheless to refuse to make the
order, or to leave in operation the now impugned order. It would, for
example, be an odd construction of s 50
which supported the refusal of an order under s 50
notwithstanding that it appeared to the Court to be necessary to make an
order to prevent prejudice to the security of the Commonwealth.
The character of an appeal (on the assumption that leave is necessary under s 24(1A) of the Federal Court Act and is granted) will depend upon the construction of s 24 of that Act. This provides for jurisdiction to hear and determine appeals from orders and s 28 provides for the making of appropriate orders on appeal. The terse provisions in the Federal Court Act have given rise to difficulty. It is sufficient for present purposes to say that on his appeal from the decision of Emmett J, Mr Hogan should have failed if the decision was correct. This is on the assumption, in favour of Mr Hogan as appellant, that the decision of Emmett J was more than an interlocutory decision on a matter of practice or procedure. Appellate intervention in matters of practice or procedure, where no questions of general principle are at stake, has been said to require the exercise of particular caution.
The reasons of Emmett J of 29 August 2008
identified the critical question as whether, once the Inference Schedule and
the Accounting Advices had been introduced by Mr Hogan into evidence,
it remained necessary in order to prevent prejudice to the administration of
justice that this material not be made available to the public. In that
regard, it was significant that Mr Hogan had not adduced evidence of
any specific prejudice that would or might flow from disclosure of that
His Honour said ((2008) 250 ALR 66 at 80):
I do not consider that the applicant has established that it was only because of the expectation that s 50 orders would continue in perpetuity that the other material in question was tendered. It would be fair to conclude that the applicant's decision to adduce evidence was driven by the object of succeeding in his application against the [ACC]. It is difficult to see how the proceeding could have been prosecuted otherwise than by tender of the material in question. In the absence of the material, it would have been well nigh impossible for the court to understand what the issue was. The court directed the [ACC] to particularise its assertion that there were reasonable grounds for believing that the privileged documents in dispute had been brought into existence in the furtherance of a fraud or commission of an offence. There is no evidence to suggest that the [ACC] was motivated by bad faith of some sort.
The Full Court
In his dissenting reasons in the Full Court, Gilmour J considered that while Emmett J had correctly identified the relevant principles, he had erred in rejecting matters relevant to the exercise of the power to vacate the s 50 order in question: (2009) 177 FCR 205 at 238. In particular, Gilmour J said (at 237):
The legitimate interest of the public in the full disclosure of the evidence tendered by the appellant on that day is, in my opinion, in these circumstances, marginal and of little weight when set against the potentially highly damaging release of inferences said by the [ACC] to arise going to alleged criminal conduct on the part of the appellant but in the absence of any charges laid against him as well as the intrusion into the confidential financial affairs of the appellant by the release of detailed private financial and taxation advices prepared by the Accountants.
In the Full Court, and again in this Court, Mr Hogan submitted that Emmett J had failed to recognise what was said to be "the inherently confidential nature" of the Inference Schedule and the Accounting Advices. In rejecting this submission, Jessup J, with whom Moore J agreed generally, noted that Mr Hogan was not relying here on legal professional privilege and continued (at 220-221):
How, then, does the applicant assert that the contentious documents were, and remain, inherently confidential? It is true that, generally speaking, every person has a right to keep from the view of others, or of the world at large, documents and things which he or she regards as his or her private concern. But so to propose is no more, in my view, than to state a conclusion about the absence of a right in any other person to view such documents and things. There are, of course, all manner of situations in which a claim to keep a particular document confidential will be recognised by a court. For example, equity recognises that the information contained in certain documents is, of its nature and by reason of the circumstances of its communication, subject to a duty of confidence. So too will the law protect trade secrets in well-recognised situations. And it is commonly the case that the court will protect from the public eye personal or commercial information the value of which as an asset would be seriously compromised by disclosure. In this latter category, the source of the jurisdiction (in this court) to provide such protection is s 50 itself. That is to say, the question will always be: is an order necessary to prevent prejudice to the administration of justice? Absent an affirmative answer to this question it is, in my view, almost meaningless to propose that documents themselves are, or that the information in them is, inherently confidential to an extent justifying, or assisting in the justification of, the making of an order permanently protecting them from public view.
We agree with what his Honour said in that passage.
of the Federal Court for News and Fairfax to inspect the Inference Schedule
and the Accounting Advices should not be given if there remains in force an
order made under s 50
which forbids or relevantly restricts their publication. In the absence of
such an order, the question in such a case would be whether in circumstances
where the evidence was tendered by a particular party that party might
successfully oppose the making of an order under O 46 r 6(3) for
inspection, upon the ground that the evidence contained material of a
personal or private nature. Emmett J distinguished the situation
respecting material on the file of the Court but not tendered and admitted
into evidence, and said that the interests of open justice were not engaged
there and that leave under O 46 r 6(3) should not be granted in
such a case (2008) 250 ALR 66 at 70.
His Honour was correct in that conclusion.
if the file material has been admitted into evidence the interests of open
justice are engaged. Where, as here, the party in question adduces no
evidence of apprehended particular or specific harm or damage, particularly
by disclosure of the Accounting Advices as Emmett J noted at 79,
leave properly will be granted under O 46 r 6(3).
there should be a different outcome where a relevant s 50
order remains in force or should not have been vacated. The administration
of justice by the Federal Court, which is the focus of s 50,
certainly includes not only the generally recognised interest in open
justice openly arrived at (see K-Generation Pty Ltd v
Liquor Licensing Court (2009) 237 CLR 501 at 520-521 )
which is reinforced by the terms of s 17(1),
but also restraints upon disclosure where this would prejudice the proper
exercise of its adjudicative function. Bowen CJ pointed this out in Australian
Broadcasting Commission v Parish (1980) 29 ALR 228 at 233.
His Honour went on to describe the litigation in Parish at 235 as analogous
to a case where confidential information "is the subject-matter of the
proceedings"; he concluded that it was in the interests of justice that
the processes for determination of those very proceedings not destroy or
seriously depreciate the value of that subject matter.
is not this case. Nor, contrary to the appellant's submissions, does it
provide a fairly close analogy to this case. The placing of material in
evidence, even on the faith of what for the time being would be a
restriction imposed by a s 50
order, is a matter of forensic decision. The price of such a decision may be
the subsequent disclosure, as is often the case in litigation, of
embarrassing publicity: See Herald & Weekly Times
Ltd v Williams (2003) 130 FCR 435 at 444.
It is no sufficient answer to brandish the term "inherently
confidential", and rely upon the assumptions in favour of Mr Hogan
made without an evidentiary basis.
The decision of Emmett J was correct and the appeal to the Full Court properly failed.
appeal should be dismissed. The appellant should pay the costs of the third
respondents, News and Fairfax. The first and second respondents, the ACC and
its Chief Executive Officer, were represented by the Commonwealth
Solicitor-General, whose submissions were somewhat balanced between those of
the other contestants. We would make no order for the costs of the first and
 When the proceeding was commenced, Mr Stewart was referred to by the pseudonym "A3".
 See R v Cox and Railton (1884) 14 QBD 153 at 165, 175; Cross on Evidence, 8th Aust ed (2010) at 910-913 .
 Mr Hogan was at this stage referred to by the pseudonym "P".
 Section 50 has since been amended by the Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009 (Cth), but not in a manner presently material.
 See also at 283 per Brennan and Toohey JJ, 293-294 per Deane J, 303 per McHugh J.
 See also P v Australian Crime Commission (2008) 250 ALR 66 at 79.
 A statement by Fullerton J to like effect, with respect to the powers of the Supreme Court of New South Wales, was approved by Hodgson JA (Hislop and Latham JJ concurring) in Attorney-General (NSW) v Nationwide News Pty Ltd (2007) 73 NSWLR 635 at 641.
 See the definition of "judgment" in s 4.
 See, for example, R v Hillier (2007) 228 CLR 618 at 627-628 -;  HCA 13.
 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 78 ;  HCA 46.
J T Gleeson SC with F Kunc SC and P Kulevski (instructed by Robinson Legal) for the appellant.
S J Gageler SC, Solicitor-General of the Commonwealth with D F C Thomas (instructed by Australian Government Solicitor) for the first and second respondents.
D F Jackson QC with T D Blackburn SC and T Maltz (instructed by Blake Dawson Lawyers) for the third respondent.
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