Casper v Murelli & Anor [2010] QDC 79

DISTRICT COURT OF QUEENSLAND CITATION: Casper v Murelli & Anor [2010] QDC 79 PARTIES: PETER ARTHUR CASPER Plaintiff v BILLY MURELLI First Defendant and SVETLANA KISSELEV Second Defendant FILE NO/S: BD 3693 of 2009 DIVISION: Civil PROCEEDING: Application for summary judgement ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 12 March 2010 DELIVERED AT: Brisbane HEARING DATE: 1 March 2010 JUDGE: Dorney QC DCJ ORDER: 1. That the first defendant have judgment against the plaintiff for that part of the plaintiff’s claim which is against the first defendant. 2. That the plaintiff pay to the first defendant the first defendant’s costs of the proceeding, including costs of and incidental to the application for summary judgment, to be assessed on the standard basis. CATCHWORDS: APPLICATION – SUMMARY JUDGEMENT – whether limitation period has expired – whether action in detinue exists in circumstances of case -- 1 of 11 -- 2 Acts Interpretation Act 1901 (Commonwealth), s 13(3) Limitation of Actions Act 1974, s 12 Telecommunications Act 1997 (Commonwealth), ss 455, 459, 462, 479 Uniform Civil Procedure Rules, rr 293, 378 Clayton v Le Roy [1911] 2 KB 1031 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Ferguson v Eakin [1997] NSWCA 106 Fitzgerald v Kellion Estates Pty Ltd (1977) BC 7700143 Flynn v Suncorp Metway Limited [2009] QSC 175 Henry v Henry (1995) 185 CLR 571 Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566 Licardy v Solarsigns Pty Ltd [2009] NSWSC 854 Mbuzi v Hall & Ors [2009] QCA 405 OBG Ltd v Allan [2007] UKHL 21; [2008] 1 AC 1 Pittaway v WH Tutt & Quinlan [2004] 1 Qd R 285 Spackman v Foster (1883) 11 QBD 99 Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2008] NSWSC 1209 COUNSEL: D. Kelly for the for the first defendant P. Casper (self-represented plaintiff) SOLICITORS: Herbert Geer for the first defendant -- 2 of 11 -- 3 Introduction [2] The Application in the present proceeding, filed on 12 February 2010, seeks, primarily, summary judgment for the first defendant pursuant to r 293 of the Uniform Civil Procedure Rules (“UCPR”). In the alternative, it seeks that the Statement of Claim be struck out and that any amended pleading be filed and served within 14 days. [3] On 25 February 2010 the plaintiff filed an Amended Statement of Claim, amended pursuant to r 378 of the UCPR, as entitled to do. [4] When the application came on for hearing before me on 1 March 2010 the respondent/plaintiff appeared in person, Mr Kelly of counsel appeared for the applicant/first defendant and there was no appearance for the second defendant. That is not surprising given that the application to strike out was made by the first defendant alone; but that will of course have consequences about the continuation of this proceeding. [5] At that hearing, besides the written submissions filed by both the applicant and the respondent, oral submissions were made. Effect of Amended Pleading [6] The matter of costs apart, the applicant contends that the Amended Statement of Claim still does not meet the argument supporting a summary judgment for the first defendant pursuant to the UCPR. [7] The applicant’s arguments concerning r 293 of the UCPR are presented on two bases. The first is that any legally sustainable cause of action – which is strongly disputed - is met by an unarguable limitation defence pursuant to the Limitation of Actions Act 1974. Secondly, the applicant contends that it is an “abuse of process” for the respondent to continue the Claim that he has brought because of a pre- existing proceeding between the respondent, as plaintiff, and various Optus companies, with respect to which Brabazon DCJ made interlocutory orders on 1 November 2004. This proceeding never did move, at least successfully, to the stage of joining the applicant or the second defendant as parties. Relevant Cause of Action [8] While the respondent’s original Statement of Claim sought to rely on both replevin and detinue, the Amended Statement of Claim has confined itself to detinue. Although self-represented, the respondent was astute enough to realise that any 6 year period of limitation would have to rely upon a cause of action that arose on or after 18 December 2003. He was quite clear, at least in oral argument, that the reason that he chose detinue was that he felt able to argue successfully that any 6 year period of limitation pursuant to s 12 of the Limitation of Actions Act 1974 could only date from the receipt of a letter sent by him to the applicant (as first defendant). That letter was dated 25 November 2008. Although irrelevant for present purposes, there is at least some evidence, and at least on an arguable basis, that that particular letter was served on the applicant on 10 September 2009. -- 3 of 11 -- 4 [9] The problem that the respondent faced, of which he was well aware, was fully revealed when he gave oral evidence at the hearing of this application. The reason why I permitted him to give oral evidence, and be subjected to cross-examination, was that he was contending from the bar table that events that occurred in 2002 could not be interpreted as making a “demand” within the meaning of that term (insofar as it was an essential element in the cause of action based on detinue); but he had not filed any affidavit to that effect. I will come back later to that evidence. [10] Thus, the issue was clearly joined by the applicant and the respondent about the cause of action being detinue. The respondent was clear that his Amended Statement of Claim would rise or fall simply on the issue of detinue and simply on the issue of whether or not a legal demand was made as early as 2002, or as late as 2008-2009. Background to Cause of Action [11] Although neither party canvassed it in any detail at all, it is clear that the basis of any right, or title, that the respondent/plaintiff may have was based in legislative and subordinate legislative provisions. [12] The claim is about one of the many mobile numbers used in the Australian telecommunications system. It concerns, at least with respect to the first defendant, the following number: “0411 111 114”. Although not clearly stated in the Amended Statement of Claim, the number with respect to the second defendant is: “0411 111 119”. [13] The background to the respondent’s claim with respect to those numbers depends upon a “Numbering Plan” bought into existence pursuant to the Telecommunications Act 1997 (Commonwealth). So far as my researches go, no amendments to the Act or Plan that post-date the relevant events impinge on the effect of the legislation to be analysed. Section 455 of that Act refers to a plan that ACMA (the Australian Communications and Media Authority, formerly the Australian Communications Authority (ACA) prior to 2005) must, by instrument, make for the numbering of carriage services in Australia and the “use of numbers” in connection with supply of such services, with such plan being called the “numbering plan”: see sub-sections (1) and (2). Section 455(5) requires the numbering plan to set out certain rules including the allocation of numbers, the transfer of allocated numbers and surrender or withdrawal of allocated numbers: see paragraphs (a), (b) and (c). By s 455(5)(e) there may also be rules about the use of allocated numbers in connection with the supply of carriage services to the public in Australia (including rules about the “issue” of allocated numbers by carriage service providers to “customers” for use in connection with the supply of carriage services). In connection with those provisions, Note 2 to s 455(5) states that “issue” is a “third tier” concept, operating at the level of particular customers of carriage service providers, and that the issue of an allocated number to a customer “does not affect the allocation of the number to the carriage service provider concerned.” It must be observed that pursuant to s 13(3) of the Acts Interpretation Act 1901 (Commonwealth), notes are not part any of any Act. Nevertheless, the note accords with any common sense understanding of the use of the word “issue” in the legislation. -- 4 of 11 -- 5 [14] Section 455(11) states that an instrument under s 455(1) – namely, the numbering plan – is a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901 (Commonwealth). [15] In considering the context in which the numbering plan exists, is important that s 459 of Telecommunications Act 1997 states that ACMA has (and, therefore, prior to 2005, ACA had) general administration of the numbering plan. Consequently, when s 462(1) states that a person who is a carrier or carriage service provider must comply with the numbering plan, it is done in the context of s 459. Finally with respect to these provisions, s. 462(3) states that the regulations under the Act may make provision for and in relation to the conduct of an arbitration under s 462. [16] Further relevant provisions of the Telecommunications Act 1997 are contained in Part 23. By s 479(2) terms and conditions on which goods and services are supplied to an “ordinary person” by a carriage service provider are, so far as the provider and the person agree on the terms and conditions on which the goods or services are supplied, the agreed terms and conditions: see s 479(2)(a). If there is no such agreement on terms and conditions, but the terms and conditions are set out in a standard form of agreement that meets certain requirements, the terms and conditions so set out apply insofar as they are applicable to the supply of the goods or services: see s 479(2)(b). By s 479(4) an “ordinary person” is defined to mean a person other than a carrier or a carriage service provider. [17] Turning then to the Telecommunications Numbering Plan 1997, s 1.9 deals with the issue and use of numbers. By s 1.9(2)(b) an object of the plan is to promote and facilitate fairness and equity in the issue of numbers to customers by carriage service providers. By s 1.9(3) an object of the plan is to minimise obstacles to the continued and “beneficial use” by customers of the numbers legitimately issued to them, “while the carriage service, in connection with which numbers are issued, is provided”. In s 1.14(a) it is stated that an object of the plan is to establish a framework for the transfer, surrender and withdrawal of numbers that promote the long-term interest of end-users. [18] Since I was not taken to any of the legislative Acts or Instruments by either party, I have been unable to locate a provision in either the Act or the Plan which directly confers a specific right on a customer concerning the use of a number. What is provided, under Chapter 10 of the Plan, is a statement of principle. Section 10.1(4) states that certain “rules” referred to in earlier sub-sections are based on certain stated principles being: (a) telephone numbers are a national resource, and not owned by a person to whom they are allocated or issued; (b) a customer to whom a telephone number has been legitimately issued may enjoy the beneficial use of the number, freely and without hindrance; (c) a customer to whom a telephone number has been legitimately issued is entitled to continued use of the number while an appropriate service is provided using the number. (Emphasis added) -- 5 of 11 -- 6 [19] By s 10.2 of the Plan, for Chapter 10 a “customer” is defined as a person to whom a carriage service provider “issues a number”. Under Part 3 of Chapter 10 there are set out carriage service provider’s obligations, particularly concerning recovering and replacing numbers; and Part 4 deals with such obligations, though concerning recovering numbers without replacing them. In that Part, s 10.12(1) states that the section applies if a customer asks for, or agrees to be issued with, a number that has been recovered from another customer (the “previous customer”) by a carriage service provider. By s 10.12(3), relevantly, the carriage service provider must not issue the number to another customer for at least 6 months after the number is recovered. Plaintiff’s Arguments [20] In the Amended Statement of Claim, insofar as it concerns the applicant (first defendant), the plaintiff alleges that the plaintiff is, and at times material to the action has been, “entitled to possession” of the certain “chattels”, such entitlement arising from the “beneficial ownership of the right to use the set of numbers 0411- 111-110 to 0411–111–119” (emphasis added). Particularisation of that entitlement shows that the plaintiff relies upon gaining “beneficial use” of the number, freely and without hindrance, under s 10.1(4)(b) of the Plan, and claims entitlement to the continued use under s 10.1(4)(c). There is an alternative claim that any “alternate plans to ownership were extinguished” on 1 October 1998 “when the numbers were issued in a manner in breach” of s 10.12(3) of the Plan. [21] The Amended Statement of Claim then alleges that the “said chattels” were in the “custody” of the first and second defendants and that, in 2009, the plaintiff made “lawful demand” upon those defendants for “the return of the said chattels”, whereupon it is alleged that the defendants have “failed to return the chattels” to him and “have thereby evidenced an intention not to return the said chattels”. [22] The earlier pleading which the respondent (plaintiff) brought illuminates the background to his claim a little more. In it he identifies the applicant (first defendant) as “Party B”, also stating that “Party K may be Party B”. [23] The earlier pleading then referred to the events surrounding 1 October 1998. There was clearly a dispute between the service provider and the respondent. As a result of that the service provider re-issued the disputed number to the applicant (first defendant), being the one that he currently uses. The respondent (plaintiff) then contended that that re-issuing broke the agreement entered into between him and the service provider and “broke the law”. It was further alleged that the cancellation of the relevant number was done in violation of ss 10.1(4)(b) and 10.1(4)(c) of the Plan. Additionally, the re-issuing of the number was alleged to be in violation of s 10.12(3) of the Plan, because of the breach of the 6 months’ rule. The alleged consequence of all those matters was claimed to be that the number issued to, and presently used by, the applicant (first defendant) was “not issued legitimately” to him and that, as a consequence, he has “no right to the use of that number” under the Plan. [24] That relatively brief – considering the extent of the allegations made in this proceeding and that earlier proceeding – survey is sufficient to establish the bounds of the argument in this application. -- 6 of 11 -- 7 Fundamental Issue [25] Because of the reliance by the respondent (plaintiff) on detinue, the resolution of whether r 293 of the UCPR applies depends on whether this Court is satisfied both that the plaintiff has no real prospect of succeeding on the plaintiff’s claim (at least as against the first defendant) and that there is no need for a trial of the claim: see r 293(2). [26] It is clear from Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 that summary judgment will not be obtained as a matter of course and that the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding at trial; and, if that is established, then the matter must go to trial: at 236-237 [17]. [27] Clearly, if there is in law a proper basis for a claim in detinue and if in law there is an arguable case that the limitation period has not expired, then the respondent (plaintiff) has a real prospect of successfully maintaining his claim and a right to have a trial. Detinue [28] What is clear beyond argument is that a claim in detinue – and this is even conceded by the respondent (plaintiff) – must relate to “chattels”. Whatever may be said for the cause of action based on conversion, there is nothing in any authority which takes detinue outside “possession of another’s goods”: see Fleming The Law of Torts (9th Edition), at p 64. Thus, the first question to be decided is whether the right asserted by the respondent (plaintiff) here is with respect to his “goods”. [29] The second question is whether an element of the cause of action (i.e. actual detention) constitutes the wrong when combined with the further element of the presence, in the absence of an explicit “demand”, of some manifestation of intent to keep the goods adversely or in defiance of the other’s rights: cf. The Law of Torts in its reliance upon Spackman v Foster (1883) 11 QBD 99, at p 64. While the respondent (plaintiff) relied upon the absence of an explicit “demand” by him before 2008-2009 for the return of the alleged chattel, it is clear from any survey of the law in this area that, as expressed in The Law of Torts, the reason for insisting on a prior demand “is to ensure that one who came into possession innocently be first informed of the defect in his title and have the opportunity to deliver to the true owner”: at p 65. This, at that learned text goes on to state, leads to refusal being the gist of detinue: also at p 65. Where, as I find to be the case here, the first defendant had in 2002 been explicitly “informed” of the plaintiff’s asserted “better right” – and therefore the alleged defect in the first defendant’s “title” – and had forthrightly rejected the opportunity to “deliver” the alleged chattels to the plaintiff, albeit by an indirect route, it rather begs the question whether a formal demand must still be proved when the refusal is clear and obvious. Moreover, the plaintiff in this case seeks to avoid the application of the running of time against him by stressing the “form” aspects of the cause of action rather than its substance. In my view, the substance of the admitted telephone conversation in 2002 constitutes an appropriate demand insofar as it led to the clear refusal of the first defendant to relinquish any of his claims over the disputed mobile number. Most of the cases which have considered Spackman, including Licardy v Solarsigns Pty Ltd [2009] NSWSC 854 (at [29]) do no more than state the requirements of demand and refusal and, to the -- 7 of 11 -- 8 extent that they discuss times, places and persons to take delivery, they are either - probably because of the nature of the right - inapplicable here or reinforce the conclusion that the plaintiff’s request to return the numbers through Optus is sufficient to establish such factors. What has been illuminating though is the explanation in Clayton v Le Roy [1911] 2 KB 1031, adopted by Hutley JA (writing for the Court at p 5) in Fitzgerald v Kellion Estates Pty Ltd (1977) BC 7700143, that the function of a demand is the insistence by the law “upon some definite actor deliberately withholding as a necessary preliminary to the rising of the cause of action.” Additionally, Balkin and Davies Law of Torts (4th ed) states that there is some authority - Canadian primarily – for the proposition that a formal demand need not be made “where the defence of the defendant shows clearly that if a demand had been made … for possession of the property, (the defendant) would have refused delivery”: at [4.55] [30] Before returning to the issue of “chattels”, for the purposes just discussed, I find that the evidence given by the respondent (plaintiff) on oath before me at the hearing of the application, while he persisted in using the notion of “demand” (at least as interpreted by him) as the thing about which he dare not speak, clearly acknowledged not only that he informed the applicant about the alleged defect in the applicant’s “title” to the mobile number but also that the applicant refused to enter into any agreement by which it would be returned to the respondent (plaintiff). In particular, when cross-examined by Mr Kelly for the applicant, Mr Casper admitted that he told Mr Murelli that Mr Murelli was not entitled to use that number, that he was using it against Mr Casper’s “right” and that Mr Casper told Mr Murelli that he wanted Mr Murelli to give the number back to Optus in order “to surrender it”. Mr Casper also admitted that the reason that he wanted such surrender was that so he, Mr Casper, could obtain the number and use it. When asked about Mr Murelli’s response to the conversation, (as related by Mr Casper) he stated that he asked Mr Murelli if there was a way that Mr Murelli could be compensated for his inconvenience “and the number returned” to him, whereupon Mr Murelli’s response was “obscene”. When further pressed by me that that, to Mr Casper’s mind, was a rejection, Mr Casper answered “yes”. [31] Thus, that even at this level, it is clear that the question of whether there has been a “demand” can only be answered, even on Mr Casper’s own evidence, as positive as that relates to 2002. Thus, I hold that the applicant (first respondent) was informed of the alleged defect in his title, that he was informed of an opportunity of delivering it (whatever “it” is) - though through the service provider to the “true owner” - and that there was a clear “refusal”. On those conclusions, even if the other hurdles now to be mentioned can be overcome, the plaintiff in the present action has no real prospect of succeeding on his claim. [32] But, perhaps more importantly, it is necessary to see whether detinue applies at all. This, as is clear from the above analysis, depends upon whether the right given under the Act and the Plan can be characterised as possession of another’s “goods.” [33] Despite the plaintiff’s use of the word “ownership”, it is abundantly clear that even by s 10(4)(a)of the Plan, a telephone number such as the one in question is a national resource and is not owned by the person to whom it is allocated or issued. At best, a customer has an entitlement to “enjoy the beneficial use of the number…without hindrance”. -- 8 of 11 -- 9 [34] I have been much assisted in the resolution of this issue by the decision of Bergin J in Telecom Vanuatu Ltd v Optus Networks Pty Ltd [2008] NSWSC 1209. There, although the parties involved did not include a “customer”, it is clear that the discussion that was had in the reasons for judgment embraced the question of importance here. This is particularly so where s 10.1(4)(a) refers not only to non- ownership “by” the person to whom the number is issued but also “by” the person to whom it is allocated. Thus, the same principles apply to both the carrier and the customer. [35] What was held in Telecom Vanuatu was that the underlying right was a chose in action. For intangible property, Bergin J concluded that the law does not afford a remedy for misappropriation. This was relevant because the cause of action relied upon in that case was conversion. In that analysis undertaken by Bergin J (at [177] – [184]), having reviewed the relevant authorities in this area, he concluded that, under the present law, the tort of conversion is not available in relation to intangible property, despite the powerful dissenting opinions of Lord Nicholls and Baroness Hale in OBG Ltd v Allan [2007] UKHL 21: [2008] 1 AC 1. [36] By analogy with conversion, which itself depends upon possession of a chattel, it is clear to my mind that intangible property – certainly of this kind - cannot be the subject of an action in detinue either. Since I hold that the right that exists here can only be intangible property, the cause of action in detinue cannot avail the plaintiff in this proceeding: see, also, Telecom Vanuatu at [180], where reference is made to the decision of White J in Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566. After referring to Ferguson v Eakin [1997] NSWCA 106, White J held that that binding authority clearly established that there could be no claim in detinue of a chose in action. See, also, the observation by Lee Aitken “Recovery of chattels in the common and civil law: Possession, bailment, and spoliation suits” (2008) 82 ALJ 379 that the attempts to extend the operation of the tort of conversion “beyond mere chattels” to more exotic forms of intangible property have so far proved unsuccessful in Australia and England: at 379. [37] This provides the second reason why the plaintiff has no real prospects of succeeding on his claim. Statute of Limitations [38] While I was initially concerned as to whether is was proper and appropriate for a judge at first instance to give summary judgment for a defendant where the issue of a limitation period has been raised should the questions in this case all have resolved simply to whether or not s 12 of the Limitations of Actions Act 1994 applied, I am reassured that, to the extent to which the Court of Appeal decision in Pittaway v WH Tutt & Quinlan [2004] 1 Qd R 285 applies, such a task can be properly undertaken. Wilson J, with whom McMurdo P and McPherson JA expressly agreed, held that there would be no point in deferring until trial a case where there was no doubt that the cause of action had accrued and that the limitation defence unarguably arose: at 288 [11]. If there were any viable factual arguments existing about whether, in truth, a demand was made in 2002, then that could have been a matter that could have given rise to a real prospect of succeeding; but only if the plaintiff’s right was one over chattels. Section 12, of course, addresses cases of successive wrongful detentions, seizing upon the original as determining the base time for calculating the expiration of 6 years from the accrual of the cause of action. -- 9 of 11 -- 10 Here, that would mean that the 2002 accrual prevails over any 2008-2009 accrual. In consequence, I also hold that there is no need for a trial, particularly pursuant to r 293(2)(b) of the UCPR. Alternative Basis of Striking Out [39] The applicant relied upon the alternative basis of the Amended Statement of Claim being an abuse of process. [40] This was based, as indicated earlier, on the decision of Brabazon DCJ in an earlier proceeding in which neither of the defendants was, or was made, a party. [41] In those circumstances, it is impossible to see that this proceeding could be an abuse of justice. [42] As discussed by de Jersey CJ in Flynn v Suncorp Metway Limited [2009] QSC 175, an abuse of process arises, for instance, when a party commences a second or subsequent action in the courts when an action is already pending with respect to the matter in issue, relying upon Henry v Henry (1995) 185 CLR 571 at 591: at [11]. [43] To my mind, it is just not possible to characterise the circumstances in that way. Moreover, it is impossible to bring them within the Anshun doctrine (which can apply when a litigant relies upon a cause of action in a later case, where it was clearly open for that litigant to rely upon the same cause of action in an earlier case). [44] Therefore, if it were necessary to proceed to this second issue, I would determine it against the applicant. Costs [45] While I acknowledge, as referred to by McMeekin J, although in dissent in part, in Mbuzi v Hall & Ors [2009] QCA 405, that it has long been recognised that indemnity costs’ orders may be appropriate where proceedings are commenced or continued for some ulterior motive, or in wilful disregard of known facts, or “clearly established law” (at [57]), it also necessary that some evidence of unreasonable conduct be established. [46] In this proceeding, the plaintiff has advanced a cause of action which undoubtedly he has viewed as having merit. Especially where this has been done in the absence of any binding decision on me – although giving due recognition to judicial comity - determining the exact nature of the of the right given to a customer under the Telecommunications Numbering Plan 1997, I am of the view that it does not fall within the principles governing indemnity costs. [47] Nevertheless, since the plaintiff has been unsuccessful and will have judgement against him, he must pay the first defendant’s costs of the action, including costs of and incidental to this application for summary judgment, to be assessed on the standard basis. This necessarily picks up any costs resulting from the late amendment of the Statement of Claim (i.e. being filed well after this application was initiated). [48] But where, as here, the applicant, through his solicitor, has proposed costs in the figure of $3,736.20 as appropriate costs to be paid, at least with respect to the costs -- 10 of 11 -- 11 of and incidental to this application, it might well be to the plaintiff’s advantage to come to an agreement as to those costs if he should see them to be reasonable. [49] In the absence of any submissions from the plaintiff directly about costs, including from his Outline where he merely states that costs should be reserved, I am loathe to make any order as to fixed costs. Further Conduct of the Proceeding [50] Since this application has only been bought by the first defendant, the power of this Court is limited under r 293 of the UCPR to be giving judgment for the applying defendant against the plaintiff for all, or part, of the plaintiff’s claim. Even though there is a further power to make any other order the Court considers appropriate, I am of the view that that does not permit the whole of the proceeding to struck out. [51] Despite that conclusion, the plaintiff would be well minded to take account of what has been decided here should he still continue to press this proceeding against the second defendant. While it may well be that there was no equivalent conversation with the second defendant in 2002, the other obstacles identified should give the plaintiff due cause for hesitation. Orders 1. That the first defendant have judgment against the plaintiff for that part of the plaintiff’s claim which is against the first defendant. 2. That the plaintiff pay to the first defendant the first defendant’s costs of the proceeding, including costs of and incidental to the application for summary judgment, to be assessed on the standard basis. -- 11 of 11 --