Victrawl Pty Ltd v Telstra Corporation & Anor S34/1994 [1994] HCATrans 111 (9 November 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S34 of 1994

B e t w e e n -

VICTRAWL PTY LIMITED

Appellant

and

TELSTRA CORPORATION LTD & OTHER CO-OWNERS OF ANZCAN CABLE

Respondents

Office of the Registry

Sydney No S29 of 1994

B e t w e e n -

THE SANKO STEAMSHIP CO LIMITED and GRANDSLAM ENTERPRISE CORPORATION

Appellants

and

SUMITOMO AUSTRALIA LIMITED

Respondent

BRENNAN J

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 NOVEMBER 1994, AT 10.17 AM

(Continued from 8/11/94)

Copyright in the High Court of Australia

____________

MR RAYMENT: Your Honours, with Mr Hughes' permission, may I just announce that in the Sanko matter we no longer seek to depart from the concession noted in paragraph 11 of the case stated.

BRENNAN J: Yes, thank you, Mr Rayment. Mr Hughes.

MR HUGHES: If Your Honours please, I will defer until later in my submissions the possible effect of that concession now restored.

At the adjournment yesterday, Your Honours, I was examining the possible operation of section 8 of the Acts Interpretation Act 1987 on the respective rights of my clients arising under the 1957 Convention and the general law, on the one hand, and the diminished rights that my clients would have if the 1976 Convention applied to the event of the loss of the cargo.

GAUDRON J: Is it accurate to refer to them as diminished? Is it perhaps better to say that they are simply different?

MR HUGHES: "Different" is good enough for me, although I would not, Your Honour, depart from the proposition that the rights that the cargo owners would have if the 1976 Convention applied to the exclusion of the 1957 Convention would be in truth diminished, but "different" is enough.

GAUDRON J: In money terms they may not be?

MR HUGHES: They would be, Your Honour, with respect. The 1957 Convention applied rather mean limitation prescriptions, meaner than the limitation prescriptions provided for by the 1976 Convention, but the problem for the cargo owners is that it is much easier for the shipping interest to get limitation under the 1976 Convention because that limitation would apply as a matter of right unless the cargo interests can prove that the loss was occasioned by the deliberate act or, alternatively, recklessness on the part of the shipowner, so that there is a potentially great money difference; the difference between the amount available under the 1957 Convention and nil, unless the cargo interest can pass through the rather difficult gateways posed by Article 4 of the 1976 Convention.

I am told, Your Honours, and this is but what I am instructed, that if the 1957 Convention applies the amount recoverable would be $A2.7m, and if the 1976 Convention were to apply, to the exclusion of the 1957 Convention, the amount recoverable would be $A7.6m. That is assuming, in relation to the second Convention, the later Convention, that we can get through the gateway, but I say that E&OE, I am not familiar myself with the evidence at first instance because I was not there. Those figures assume the limitation is not broken in each case. My learned friend is good enough to say that my approximate figures are approximately correct. I am grateful to him.

Your Honours, before I pass from the Acts Interpretation Act, I should mention that we rely on paragraph 8(e) because that is the provision which says that:

Where an Act repeals in the whole or in part a former Act then unless the contrary intention appears the repeal shall not:

(e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability -

et cetera. Your Honours, I should, before passing from section 8, out of respect to Your Honour Justice Brennan, say something about Your Honour's dissenting judgment in Esber. It is my submission that Your Honour's reasoning does not harm our argument in this case and we put this particular argument in this way: as identified by Your Honour in Esber[1992] HCA 20; , 174 CLR 430, the vital questions in determining the application of section 8(c), paragraph (c) of the Act, are first to identify the right said to be preserved by the operation of the paragraph, and second, to determine whether that right satisfies the description of an accrued right. I should add that I need not, for the purposes of this argument, address my submission to that part of Your Honour's judgment which held that in any event there was an indication of a contrary intention in the particular legislation under consideration in that case.

Where Your Honour parted company with the majority was on the answer to question 2. That is the question whether the right claimed satisfied the description of an accrued right. Your Honour held that it was not an accrued right, that the claimed right was a right to proceed with a redemption application under the 1971 Commonwealth employees compensation legislation. Your Honour held that the right in that case was no more than a right to proceed with a claim, and a claim at that to the exercise of a discretionary judgment. The relief, for reasons pointed out by Your Honour, was of an entirely discretionary nature.

In my respectful submission, for the reasons that I endeavoured to advance yesterday, this case is different because essentially our position was that under the 1957 Convention we, on the occurrence of the loss on 18 February 1991, acquired an enforceable right recognised by the Convention to damages under the general law qualified only by the possibility that the shipowners would limit, with the assistance of the court, the quantum of those general law damages if they could prove, in terms of the 1957 Convention, that the loss of the cargo occurred without their actual fault or privity. That is the difference, we submit, between the Esber-type situation and the situation here.

BRENNAN J: Can I just delay you for a moment? You rely here on paragraph 8(e), is that right?

MR HUGHES: I am relying on paragraph 8(e) as well as the other paragraphs that I identified, Your Honour.

BRENNAN J: Yes. What is the right which, in your submission, is preserved by paragraph 8(e)?

MR HUGHES: The right to recover, in the proceedings that were instituted initially by the limitation claim being filed and then by the cross claim for damages, the right to have the shipowner's liability determined in accordance with the general law and the 1957 Convention.

TOOHEY J: But you cannot get that from paragraph (e), can you, Mr Hughes? Paragraph (e) assumes the existence of a right and then directs its attention to the preservation of any legal proceeding or remedy.

MR HUGHES: Yes. The legal proceedings were on foot before the 1976 Convention became part of Australian law, Your Honour, and we say the right subsisted from the occurrence of the loss.

TOOHEY J: I understand that but I thought your answer to Justice Brennan was along the lines that paragraph (e) spoke of a right.

MR HUGHES: I am so sorry.

TOOHEY J: You find your right in paragraph (c) presumably?

MR HUGHES: Yes, indeed.

BRENNAN J: That is where my problem arose because I understood you to say that your right was the right to damages under the general law.

MR HUGHES: Recognised by the Convention and qualified only to the extent of the limitation provisions prescribed in that 1957 Convention.

BRENNAN J: Is that qualification not a qualification by way of defence to your right?

MR HUGHES: It is a qualification, Your Honour, in derogation of my right.

BRENNAN J: If not raised or pleaded, is your right affected?

MR HUGHES: If neither raised nor pleaded, no, it is not affected.

BRENNAN J: Then is the right on which you rely a right which falls within 8(c)?

MR HUGHES: Yes, Your Honour, because the Convention operates to define the right more favourably to me or to limit the right more favourably to me than would the 1976 Convention.

BRENNAN J: That seems to me to raise another problem. It is not by way of the repeal of the earlier Act that your right is affected but by the introduction of the new.

MR HUGHES: It was with an intuitive sixth sense that this problem might surface that I placed reliance yesterday, and still do, on the common law principle, the Maxwell v Murphy principle, which does not depend upon section 8 of the Acts Interpretation Act. As my learned friends want to do in another area of the case, I am having an each-way bet. But I do not think I can add effectively to the arguments that I have put. If that problem is there then my escape hatch is Maxwell v Murphy.

DEANE J: May you not be on clearer ground, for the purposes of the Acts Interpretation Act if it is relevant, if you focused on the other side's entitlement to have damages limited to 2.7 million?

MR HUGHES: Yes. I endeavoured to do that yesterday, and I certainly - - -

DEANE J: If that is right, that is good enough.

MR HUGHES: It is good enough. I did endeavour yesterday, and I do not want to go over the ground - try to see the respective distribution of rights or obligations from two perspectives. I would respectfully adopt Your Honour's tentative suggestion.

There are some other areas relating to the substance of our argument that I want to develop but it will be convenient before I go to them, Your Honours, if I deal with the question - or a request for information made by Your Honour Justice Deane yesterday. At page 62 of the transcript Your Honour posed the question what happens if a limitation fund is established in a Convention country, for example, Australia, and a passenger or a cargo owner commences proceedings in a non-Convention country, how does the matter turn out legally.

We have been able to find one case which may point a way to the solution to that problem. That case, of which I have copies to hand up to Your Honours - we have given it already to my learned friends - is the case, The "Giacinto Motta", (1977) 2 Ll LR 221. May I first of all go to the headnote, first saying this: a limitation fund was set up in the United Kingdom under the 1957 Convention. Cargo owners, however, sued for damages in a non-Convention country, in that case, the United States. If Your Honours would be good enough to look at the headnote, paragraph numbered (4), it says this:

while the owners of Mermaid were entitled to be given credit in the distribution of their limitation fund in respect of the cargo claim the amount of the credit to be allowed to them could not exceed the amount of the dividend which would have been receivable by the cargo-owners from such fund if they had brought their claim against it instead of enforcing payment in respect of it in the United States -

I should have said that the particular cargo owners sued in the United States and recovered damages for $2.5 million and the fund was only 845,000 pounds sterling, which one gets from the first column of the headnote.

Mr Justice Brandon, as he then was, dealt with this point of what happened in such a case, from page 227 right-hand column through to 228. What His Lordship concluded, in essence, was this: the shipowner was entitled in the administration of the limitation fund to be credited with an amount in respect of the payment that he had made pursuant to the United States' judgment. He was not entitled, however - that is, the shipowner was not entitled - to be credited in the administration of the fund with the full amount but only with a rateable proportion; rateable, that is, by reference to the dividend available in the administration of the fund.

Unless Your Honours want me to, I will not read the judgment, but it is a case that perhaps applies in answer to the sort of question that Your Honour Justice Deane raised yesterday afternoon.

So far, my submissions, Your Honours, have tended to focus on principles of interpretation applicable in a purely municipal law setting. The topic that was raised yesterday afternoon in the course of discussion was one I think raised at one stage by Your Honour Justice Deane and at another by Your Honour Justice Brennan. Through what spectacles, as it were, does this Court, administering the law of an international treaty incorporated into Australian law by legislation, view the problem of interpretation? Of course, the answer is, as was indeed suggested during the course of discussion yesterday, that this Court would not, as it were, be blinkered by purely municipal law methods of interpretation. It is legitimate - and this is a proposition sanctioned by the authorities - to have regard as an important factor to the fact that the Court is dealing with an international treaty and that the method of interpretation includes as an important element a consideration of how the treaty would be construed in the international law context.

The cases that are relevant as establishing that principle are, first of all, because it is first in point of time, Fothergill v Monarch Airlines, [1980] UKHL 6; (1981) AC 251, particularly per Lord Diplock at pages 282 and 284 and per Lord Scarman at page 292. In that case the court had regard to the provisions of the Vienna Treaty, not, I should say, to Article 28 but to other provisions in the Vienna Treaty. In those speeches, Their Lordships affirmed the relevance of a treaty such as the Vienna Treaty as bearing upon the interpretation of the treaty under consideration in that case.

I do not propose to read those passages, it would take up too much time, and I have endeavoured to distil the principle. More importantly, perhaps, in this Court there are several pronouncements; first of all, by Your Honour Justice Brennan in the Tasmanian Dam case, 158 CLR - it was not on our list, Your Honours, but it is on other lists - at page 222. In the last paragraph on that page, Your Honour had this to say - I will omit reading the first sentence. Your Honour said this:

Whether the Convention -

that is, the United Nations Convention that was under consideration -

gives rise to an international obligation is a matter of interpretation of its terms. The interpretation of the Convention should follow the articles of the Vienna Convention, the provisions of which codify existing customary law and furnish presumptive evidence of emergent rules of general international law. It is thus appropriate to refer to the Vienna Convention though it had not entered into force when the Convention was adopted.

Now, in this case, of course, the 1976 Convention came into force after the Vienna Convention came into force. The Vienna Convention came into force in 1980. Now, we rely also on statements of principle in the same vein as those of Your Honour Justice Brennan in Tasmanian Dams by Justices of this Court in the case referred to yesterday, Thiel v The Commissioner of Taxation, 171 CLR. I do not propose to read from it. Your Honour Justice Dawson dealt with the principle at page 349, citing the Tasmanian Dam case and Fothergill - that is in the first half of page 349 - then His Honour Justice McHugh, at page 356 - I shall not read those passages.

Now, we say that Article 28 of the Convention has an important bearing upon the outcome of the question whether the 1976 Convention, as a matter of interpretation, according to international law principles, applies retrospectively so as to affect or apply to acts or events antecedent to its coming into force in Australian law. We say that because although, as my learned friend, Mr Rayment, said yesterday, Article 28 of the Vienna Convention is directed in terms to a party to the Convention. It reads this way:

Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party -

this is Article 28 of Vienna -

in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.

Now, although it is directed to a party to the Convention, of course the party means the State and if it means the State, as it obviously does, it refers by necessary implication to the organs of power including judicial power in the relevant State, in this case, Australia because the judicial power of the Commonwealth, it goes without saying, is an essential element in the conduct of the polity of the Australian international State.

So, it cannot be said, with all respect to my learned friend's argument yesterday, that because Article 28 is directed to the State party, it does not apply to a dispute between individuals. In any event, one would have thought that if it applies to the State party the application trickles down, as it were, to the task of interpreting the Convention for the purposes of working out the rights of individuals other than as opposed to contracting parties.

Indeed, if my learned friend's argument had any substance it would apply to Article 26 of the Vienna Convention which says:

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

And yet, in Fothergill and I think I am right in saying one of the cases in this Court, Article 26 was considered as relevant in the interpretation of the obligations there in question and, indeed, Article 26 was specifically considered by Lord Diplock in Fothergill and that was a case, of course, of a dispute between private individuals.

Searching a little further afield, Your Honours, in the international law sphere, there is a case which is referred to - it is an International Court of Justice case - in Halsbury, 4th edition. I have copies to hand up to Your Honours. That case is Ambatielos in the International Court of Justice, decided in 1952 - these are the reports of the International Court. That was a case in which the Greek Government - if Your Honours would be good enough to go to page 9 of the English version of the report - in 1951, filed an application in the International Court against the United Kingdom:

concerning the claim relating to the rights of a Greek shipowner, Nicholas Eustache Ambatielos, alleged to have suffered considerable loss in consequence of a contract which he concluded in 1919 with the Government of the United Kingdom (represented by the Ministry of Shipping) for the purchase of nine steamships which were then under construction, and in consequence of certain adverse judicial decisions in the English Courts in connection therewith.

If one goes forward to page 19 of the English version of the judgment, it appears that the English proceedings took place between 1919 and 1923 or, perhaps more accurately, the events giving rise to the English proceedings occurred between 1919 and 1923. The Greek Government invoked an arbitration provision in a 1926 treaty. That that was the main issue appears from page 12 of the English version. Page 12 is the number at the bottom; for some reason there is differential numbering. The issues are set out on this page:

May it please the Court: to record a finding for the Hellenic Government:

1. that the complaints formulated by that Government in its Memorial, relating to the breach of the contract of sale of the ships, to the unjust enrichment, to the non-production at the trial of certain documents of which M. Ambatielos was unaware and to the improper administration of justice.....all have, in the opinion of that Government, a legal foundation in Articles -

specified, of an 1886 treaty -

and likewise in Articles I, 3 and 4 of the Treaty of July 16th, 1926 -

The question was, as emerges, whether the arbitration provision in the 1926 treaty could be invoked in relation to events that had occurred between 1919 and 1923 and which had resulted in litigation in the courts of the United Kingdom.

The arbitration provision is at page 15, that is the bottom numbering, Article 29:

The two Contracting Parties agree in principle that any dispute that may arise between them as to the proper interpretation or application of any of the provisions of the present Treaty shall, at the request of either Party, be referred to arbitration.

That is the 1926 treaty. The question of the applicability of that clause in the treaty to the past events, that is events past when the treaty came into force, is dealt with in the judgment of the court at page 19, bottom left-hand side numbering, otherwise page 40 at the top. Perhaps I should go back to page 18. In the middle of the page, Your Honours:

The Court can now proceed to deal with the various arguments put forward by the United Kingdom Government in support of its Preliminary Objection to the Court's jurisdiction. Seven main points have been raised, the first two of which are:

"(I) The jurisdiction of the Court, if it exists at all, must be derived from Article 29 of the Treaty of 1926.

(2)Article 29 of the Treat of 1926 only confers jurisdiction on the Court to deal with disputes relating to the interpretation or application of the provisions of the Treaty of 1926 itself."

Then they set out Article 29 at the bottom of the page, and then the court says, at page 19:

It follows, therefore, that any dispute as to the interpretation or application of any of the provisions of the Treaty of 1926 is referable by either Party to this Court.

The third and fourth points raised on behalf of the United Kingdom Government are that:

"(3) The Treaty of 1926 only came into force in July 1926, and none of its provisions are applicable to events which took place or acts which were committed before that date. This is so whether or not the 1886 Treaty, which the Treaty of 1926 replaced, contained provisions similar to those of the Treaty of 1926.

(4) The acts on which the Greek Government's claim is based took place in 1922 and 1923, and therefore the provisions of the Treaty of 1926 are not applicable to them."

These points raise the question of the retroactive operation of the Treaty of 1926 and are intended to meet what was described during the hearings as "the similar clauses theory", advanced on behalf of the Hellenic Government. The theory is that where in the 1926 Treaty there are substantive provisions similar to substantive provisions of the 1886 Treaty, then under Article 29 of the 1926 Treaty this Court can adjudicate upon the validity of a claim based on an alleged breach of any of these similar provisions, even if the alleged breach took place wholly before the new treaty came into force. The Court cannot accept this theory for the following reasons:

(i) To accept this theory would mean giving retroactive effect to Article 29 of the Treaty of 1926, whereas Article 32 of this Treaty states that the Treaty, which must mean all the provisions of the Treaty, shall come into force immediately upon ratification. Such a conclusion might have been rebutted if there had been any special clause or any special object necessitating retroactive interpretation. There is no such clause or object in the present case. It is therefore impossible to hold that any of its provisions must be deemed to have been in force earlier.

Now, we submit that that case is significant for the purposes of this appeal because there, in 1952, the International Court affirmed as applicable in international law the principle with which one is familiar in municipal law, namely, that absent an indication of contrary intention a treaty will not be interpreted as applying to acts, facts or events that occurred prior to it coming into force.

DAWSON J: I may not have grasped completely the provisions, but that is an odd application of that principle to arbitration which applies to a dispute coming into existence afterwards. The decision here would appear to be contrary to what was said, for instance, in Maxwell v Murphy.

MR HUGHES: Yes.

DAWSON J: The mode of resolving the dispute is something different from the rights which - - -

MR HUGHES: That arise in the dispute.

DAWSON J: That would seem an extreme application.

MR HUGHES: Yes, it is an extreme application. They accepted jurisdiction to determine the question whether the dispute - at the top of page 19, as my learned friend is good enough to point out to me, they accepted jurisdiction but they threw it out; they denied the application of the 1926 treaty to the antecedent events. That may be an extreme application of the principle but it is an application of it. We do not have to be so extreme in this case.

So that approaching the problem here from the perspective of customary international law or treaty international law, namely the Vienna Convention, as reflecting customary international law, we would say that the question boils down to this: is there any indication in the 1976 Convention of an intention that it should apply to past acts and events? We would say no. The basic argument submitted in support of the appeal by my learned friend, or a basic argument, is that the word "whenever" does the work which he wants it to do. We submit that that is placing too much of a load on that word. As well as adopting generally, as I do with respect, the arguments of my learned friend Mr MacFarlan, I adopt in particular at this juncture the interpretative argument that he advanced yesterday on this particular point. It is perhaps worth noticing that in this Ambatielos case, the wording of the arbitration provision was quite general and not expressly restricted to future disputes arising in respect of future matters. That comes from page 36 where Article 29 is set out - 36 at the top, 15 at the bottom.

DEANE J: Mr Hughes, are my calculations correct that for the purpose of that customary international law argument, as it were, the 1976 treaty came into force for Australia on 1 June 1991?

MR HUGHES: Yes, Your Honour, that is in our chronology, that is so, yes.

DEANE J: I was looking at the other chronology which I was adding it to.

MR HUGHES: And the Vienna Convention came into force in 1980, so that the Vienna Convention, consistently with authority and its terms, is applicable to the interpretation of the 1976 Convention.

DEANE J: On the basis it applies by reference to coming into operation, as distinct from underlying agreement?

MR HUGHES: Yes, I think there is a provision in the Vienna Convention which says that its terms apply only to treaties coming into force after it comes into force.

DEANE J: Is there anything that says that it does apply to treaties coming into force afterwards, notwithstanding that their terms were settled before, apart from the authorities that Justice Brennan referred to in the Tasmanian Dam case?

MR HUGHES: Article 4 of the Vienna Convention is the relevant article, Your Honour. That is in the bundle of reference material in the volume handed up yesterday, under tab B, it is B(1):

Without prejudice -

says Article 4:

to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention -

DEANE J: That might indicate the contrary here, may it not, in that even though Australia did not come a party until 1981 the treaty itself - - -

MR HUGHES: Was concluded - - -

DEANE J: Yes.

MR HUGHES: Yes. In any event, following Your Honour's train of thought, we would say that Article 28 is still relevant to be considered because, as appears from the cases that I have cited, it is a reflection of customary international law.

DEANE J: What I had in mind was what Justice Brennan said in the Dams case to which you referred us.

MR HUGHES: Yes. In the course of his submissions yesterday, my learned friend Mr Rayment made reference to Article 17 clause 4 of the 1976 Convention. It is document 7 tab A in the bundle of reference material. It says:

In respect of the relations between States which ratify, accept, or approve this Convention or accede to it, this Convention shall replace and abrogate the International Convention relating to the Limitation -

that the 1957 Convention. Now, of course, in our submission, that does not solve any question, it only poses the same question as is involved in the interpretation of section 6 of the 1989 Act. Does the abrogation - as it is described - or does section 6 of the 1989 Act have the effect of applying the 1976 Convention to past events? So, Article 17 does not solve the problem, it only asks the same sort of question.

In the light, Your Honours, of the adherence this morning to the concession that was made in the special case, paragraph 11, the rather curious position is that for the purposes of working out the parties to this appeal it is accepted that the 1957 Convention applies.

It follows that to make the 1976 Convention applicable to the events giving rise to the appeal in which I am engaged, the Court would have to reach the conclusion that it was the intention of the 1989 legislation and, indeed, the intention of the parties to the 1976 treaty that there would be or could be a situation in which the two treaties operated side by side with respect to the same events, being events which were antecedent to the coming into force of the 1976 treaty. That would be an extraordinary result.

DAWSON J: What you are really saying is that if the 1957 Convention applies, and that is the concession that is made, there is nothing to argue about. That might be right but that seems a very odd situation for the Court to be in, does it not?

MR HUGHES: It does, indeed, Your Honour, and it is very odd because for the Court to answer the question posed in our special case, in favour of the appellant, would involve the result that the two conventions apply to the same events.

DAWSON J: That would seem not to be possible, would it not?

MR HUGHES: We would submit clearly impossible.

DAWSON J: Can you concede a point of law or agree a point of law?

MR HUGHES: According to the Court of Appeal in New South Wales - I had a fleeting look at this in the last few minutes before I came to Court - one can be bound by an agreement, an admission, on a question of mixed facts and law.

DEANE J: But, Mr Hughes, if you look at Article 17.4 of the 1976 treaty, that seems to have been the intention in so far as events involving multinational interests are concerned, that is, as between States which are both parties to the 1976 Convention it operates; as between countries which are both parties to the 1957 Convention and not both parties to the 1976, the 1957 will continue to operate which, no doubt, would lead to the type of accommodation that Mr Justice Brandon made between different limitation funds as between those interests.

MR HUGHES: But the present case would not be a case that calls for such differential application as Your Honour has just pointed to.

DAWSON J: And between particular parties it is either one or the other.

DEANE J: Yes.

MR HUGHES: It is either one or the other, and they have said it is 1957.

DAWSON J: Well, have they?

MR HUGHES: They have agreed it is 1957. So the point is moot. If one examines this problem from the perspective of proportionality, in terms of constitutional interpretation, a principle with which Your Honours are very familiar - and we have referred to proportionality in what was obviously an addendum to our outline because the paragraph numbering is different, and we have cited the two cases. If one looks at the question in terms of proportionality, from the perspective of power, could it be said, one ventures to ask, whether an operation under Australian law, of the 1976 Convention, in a situation where the 1957 Convention is applicable, could be a valid exercise of the power.

DAWSON J: I am not sure that I understand that, Mr Hughes. You were saying in the separate two paragraphs that the external affairs power is a purposive power.

MR HUGHES: Yes.

DAWSON J: It is not something, for my part, I accept. What is the purpose?

MR HUGHES: It is, in part, purposive.

DAWSON J: What is the purpose?

MR HUGHES: Inter alia, giving effect to international treaties.

DAWSON J: No, that is not the purpose of the power. In exercising the power one may have that purpose. It is not the purpose of the external affairs power. It has no particular purpose. It is not like defence.

MR HUGHES: If that view is right, the proportionality argument goes out the window.

DAWSON J: Not entirely, because one can have the purpose of giving effect to a treaty in order to exercise the external affairs power, and you may say this was not necessary to - - -

MR HUGHES: It was not reasonably proportioned for the exercise of the power to give effect to a treaty to say that two treaties shall be in force at the same time, in contradictory terms or in partially contradictory terms.

BRENNAN J: Mr Hughes, yesterday you made an application which was not ruled upon in relation to the revocation of special leave.

MR HUGHES: Yes, Your Honour.

BRENNAN J: Is the dilemma which the Court faces this: if the argument be right that the two treaties cannot at the same time apply to the same set of events or to the rights arising from the same set of events, then if the Court is of the view that the concession made must be adhered to the order would have to be a revocation of special leave; if, however, the Court was not of that view and regarded the concession as being a sheer question of law, then the concession would go by the board and it would be a matter for determination simply in accordance with legal principle?

MR HUGHES: I think I would have to accept that formulation of the alternatives or the choices.

DAWSON J: Well, which is it here? Have they conceded that the law is in that particular state or have they conceded that their rights take a particular form?

MR HUGHES: Well, they have conceded what may be a mixed question of fact and law, and probably is, because the concession - - -

DAWSON J: Well, what is the question of fact?

MR HUGHES: The question of fact is most difficult to formulate as a question of fact. The concession is a concession of law, I would have to concede that, and the question then becomes: should the adherence announced this morning to that concession have any effect on the appeal in which I am engaged.

DAWSON J: I have never understood how you can concede a question of law. An action for a declaration, for instance, courts are not going to make a declaration of the law as it is not merely because the parties concede something.

MR HUGHES: No, I appreciate that, but the points that perhaps need to be borne in mind as bearing upon discretion - - -

DAWSON J: That is a different thing.

MR HUGHES: - - - in this case are these: (1) the special case was submitted to the Full Federal Court as an agreed special case; (2) the concession was noticed in the judgment of the Full Court; (3) the concession was meant to say something and the concession, I would point out - I think I said this yesterday - was drawn to the attention of this Court when special leave was granted. All we would say is that now the appellant does not seek to withdraw the concession, and if, as a matter of discretion, it should be held to its willing adherence to the concession, then there is no point in this appeal unless, which seems impossible, in our respectful submission, both Conventions can operate side by side with respect to the same facts.

That is all I can say. We do submit that in the circumstances as they now obtain, the Court ought to be minded to withdraw the special leave.

BRENNAN J: Is there any prejudice which has been suffered by your party as the result of a reliance upon the concession that has been made?

MR HUGHES: What immediately comes to mind is that the case below was fought until some point during the hearing, as shown in the transcript in the chronology, Your Honour, on the basis that the 1957 Convention prescribed the appropriate limitation regime. It had been foreshadowed before the amended pleading was filed that such an amendment would be sought, but the amendment was not made until fairly well into the hearing.

TOOHEY J: But,Mr Hughes, if you look at the judgment of Mr Justice Gummow on pages 51 to 52 of the appeal book, he adverts to the agreement - not noted as a matter of concession but simply as a matter of agreement - and then goes on to deal with the argument.

MR HUGHES: Yes, it is a very odd situation, Your Honour.

TOOHEY J: Yes, but in a sense it is odd from the point of view of both parties. Both parties appear to have been content for him to have thereafter proceeded to determine the applicability of the 1976 Convention.

MR HUGHES: Yes, Your Honour, it passes understanding in a way. But I can say no more. I have endeavoured to put before the Court the considerations that might be relevant or we say are relevant to the question of whether special leave should be continued. My learned junior, who - - -

DEANE J: Mr Hughes, so far as we know, both Conventions could apply to this incident. Assume that the Sanko Steamship Company is Japanese and the Grandslam Enterprise Corporation is Tongan and Sumitomo Australia Limited is Australian. On my reading of the adherence to the various Conventions, both Conventions would apply to the incident.

MR HUGHES: Your Honour, the difficulty then becomes one to which advertence was made - - -

DEANE J: I brought in Tonga because it was the first identified as apparently still 1957 and not 1976.

MR HUGHES: Yes. The difficulty then becomes one which was adverted to yesterday, that perhaps the Court does not know enough facts.

DEANE J: Perhaps your argument then ignores the Convention and has to focus on municipal law.

MR HUGHES: Indeed, yes.

DEANE J: In terms of the proceedings being in this country.

MR HUGHES: So that the municipal law content of our argument assumes - - -

DEANE J: Comes to the forefront.

MR HUGHES: - - - greater importance, if any importance, than the international law section of the argument. It is a very odd situation, Your Honours, and I doubt whether I can say more without wasting the Court's time. For the reasons that we have endeavoured to submit, this appeal should be dismissed or, alternatively, special leave should be revoked. If the Court pleases.

BRENNAN J: Thank you, Mr Hughes. Mr Rayment.

MR RAYMENT: If it please Your Honours. I will come back to that last matter a little later if Your Honours please.

Your Honours, we start with the submissions of my learned friend, Mr MacFarlan. Your Honours, Heublein at first instance was said to be a case of a discretionary order by my learned friend, Mr MacFarlan, and he said that several times to Your Honours yesterday, amongst others, at page 61 and that really was the foundation of the submission, that accrued rights can arise when it is necessary to invoke the jurisdiction of the Court. But the Court will only need to make a finding of fact in order to grant whatever relief is provided by the statute.

In our respectful submission it is wrong to characterise Heublein as a case of a discretionary order. May I go to it, please, in [1960] HCA 37; 103 CLR 422.

The passage at first instance which we had in mind was the passage at the lower part of the page:

If the application had not been pending in the Court -

and it was an application to expunge a trade mark for lack of bona fide user -

I should have agreed that the applicant company had not a right to relief under s 72 which it could thereafter enforce. Even though it had a locus standi to apply under the section as a "person aggrieved", s 8 of the Acts Interpretation Act could have no application in its favour; see Abbott v Minister for Lands, and cf Brandon's Patent, Ex parte Doty. But in my opinion the applicant, by instituting its application in the Court, that is to say by filing its notice of motion, acquired a right to have the Court decide whether it ought to exercise its jurisdiction under s 72 in that application, and that right was within the protection of s 8(c) -

At page 432 of the report, His Honour looked at the question of the nature of the relief in the case and, at the foot of the page, said:

For these reasons I reach the conclusion that in this case the situation exists in which s 72 provides that the court "may" order the removal of a trade mark from the register. This appears to be a grant of judicial power and prima facie the principle of Julius v Bishop of Oxford would require the Court to exercise its jurisdiction to order removal.

That is "may" means "must" given the presence of the circumstances referred to in the section. So His Honour treats it as prima facie a non-discretionary order, and then says:

So, in our respectful submission, the case was not a case, and not treated as a case, of a discretionary order at all. Your Honours, the subsequent history of that - and I need not take Your Honours through the detail of this - is that the Abbott v The Minister for Lands principle was referred to by Mr Justice Gibbs in Mathieson v Burton, [1971] HCA 4; 124 CLR 1, at page 23. Reference was made to this case of Mr Justice Kitto's, as well as Abbott v The Minister for Lands in the case of Robertson v City of Nunawading, (1973) 819, at pages 825 to 826, which Your Honours had to refer to in the Esber case. Both those cases were cited with approval, in our submission, by all Judges in Esber v The Commonwealth, 174 CLR, as was the decision of Mr Justice Kitto in Heublein, both in the majority and the minority judgments.

Your Honours, there was an accrued right in Sanko which existed at the time of repeal of Division 1 of Part VIII of the Navigation Act which may have been preserved by section 8. That was an accrued right to proceed with the case commenced on 3 March 1991. Without commencing that case, in our submission, in Victrawl, Sanko would have obtained no accrued right. That is why there is a difference between the facts in the two cases.

The Convention does not apply at all unless it is invoked, and that is Article 7 of the 1957 Convention, if I might just go to that. The scope of application of the Convention is stated in terms of a limitation or a seeking of a limitation order by the owner of a ship. If no such thing happens, the Convention has nothing to say about any matter of private law that might arise between a shipowner and a person whose property or person is injured.

So that in the Victrawl case we put this: the difference between Victrawl and Sanko is that an accrued right, as discussed by Mr Justice Kitto in Heublein was acquired by Sanko but not by Victrawl. In the Victrawl case we are free to put and do put, have put, that there was a contrary intention within the meaning of section 8. Your Honours, if there was no contrary intention within the meaning of section 8, then the effect is that an Australian provision, that is section 8 of the Acts Interpretation Act has preserved, in addition to the rights that arise under the 1976 Act, another right. In other words, it is not something which gives effect to a Convention, it is something which merely gives effect to section 8 of the Acts Interpretation Act. If there be no contrary intention, the - - -

BRENNAN J: I am sorry, I am not following that, Mr Rayment. Could you put it again? Are you speaking now about both cases, or only one?

MR RAYMENT: I am speaking about both. Your Honour, if there be no contrary intention, then the effect, in our submission, is as follows: one construes the 1976 Act, and one does so primarily by reference to the international intention of it. If that leads to the result that, for example, Sanko has a right to limit under the 1976 Act, so be it. If section 8 does not have a contrary intention, then the effect is, in our submission, that Sanko has two rights. It has one conferred for the first time on 1 June 1991, and it has one preserved by section 8 of the Acts Interpretation Act, notwithstanding the repeal of Division 1 of Part VIII. But they are quite distinct questions, in our submission. Maxwell v Murphy, in our submission, makes it clear - - -

BRENNAN J: That depends on how you characterise the right, does it not? It comes back to a question that I think I asked you yesterday. If you wish to put this right as a right to have the Convention limitation provisions applied by a court at the moment of judgment, then Sanko, on that argument, would have that as its vested right.

If you wish to put it on the basis that the right conferred under the Convention is a right to have the Convention applied when a party seeks an order, in the terms of Article 15, then one would say perhaps Sanko had its right preserved under the 1957 Convention by virtue of that provision. Does that not mean that you have to opt as to which of those constructions you wish to place upon it? Unless of course you adopt the opposing side's argument that it is a right which arises on the occurrence of the casualty.

MR RAYMENT: Yes. Your Honour, could I perhaps approach it as follows: in the Victrawl case what we want to put is this, that no such question arises because nothing was pending, no application or invocation of the 1957 Convention had occurred prior to the commencement of the 1976 Convention. Your Honours, the particular accrued right that corresponds with that referred to by Mr Justice Kitto is in strictness a right to proceed with the legal proceeding commenced by Sanko in March 1991. It is the legal proceeding which is saved and it will either succeed or it will fail.

TOOHEY J: But why do you say that, Mr Rayment? Why do you not go back one step and look at whatever rights arose immediately upon the happening of the event?

MR RAYMENT: Your Honours, all that arose on the happening of the event were the common law rights, in my respectful submission. If Sanko was liable in tort then that was the position. It had the capacity to invoke, in this jurisdiction at one point of time one limitation convention and the capacity, in our submission, at another point of time to invoke another limitation convention, and until it proceeded to judgment in either such application and obtained a decree of limitation the rights of the property owner, we submit, were unaffected.

Your Honours, limitation is not a matter of defence and Mr Justice Dixon referred to that fact in the passage which has been partially cited by our learned friends in James Patrick & Co Ltd v Union Steamship Co. Your Honours would remember having been taken to portions of this statement but not the portion which refers to the question whether the limitation action is a matter of defence. It is page 673 of the report. His Honour refers to the point which was taken before him that the owners did not counterclaim for a limitation decree and, therefore, since they suffered judgment, it was said, they had lost their right to limit. His Honour says:

But a failure to counterclaim does not preclude a defendant from afterwards seeking by an independent action the relief which it was open to him to seek by way of counterclaim. The statute gives no defence; at best it limits damages.

That, in our respectful submission, is a correct characterisation of the various kinds of limitation statute which are relevant to this case. It does not matter that section 25 of the Admiralty Act permits the procedural step of filing a defence instead of a counterclaim to be used to give rise to the same relief as if a counterclaim was filed. That is merely a procedural provision, it does not alter, in our submission, the nature of the remedy which it involved.

Your Honours, at page 49 of the transcript, some submissions were made by Mr MacFarlan about the word "whenever". In our respectful submission, for the purposes of the 1976 Convention, the prospect begins with the invocation of the rules of the 1976 Convention, and not with any other event. That has really been our case throughout.

The question which Your Honour Justice Deane asked, at page 62 of the transcript, about what happens if a limitation decree is made in this jurisdiction and the vessel goes to a non-Convention country in our respectful submission is simply answered - the vessel has no right to limit. That was, for example, the view of the Dutch court in the case, Sylt I, which has been referred to by Mr MacFarlan. The vessel there went to Sierra Leone where an action was brought against the shipowner and there was no limitation provision in force in that court. The judgment, unless there was permission to limit under the 1957 Convention, was a good judgment for the whole amount recovered.

Mr MacFarlan took Your Honours to two American cases which happen to have construed limitation statutes in force in particular ports as being substantive in nature in those ports. We have collected a number of cases where the contrary conclusion was reached by American courts on particular statutes. There is one bundle of supplementary material, which if I may, I will hand up together.

BRENNAN J: This arises in reply, Mr Rayment, does it?

MR RAYMENT: In so far as it was suggested by my learned friend, Mr MacFarlan, that the - Your Honours, I do not mind seeking leave to supplement what I put in-chief on the question of The Titanic. I contented myself with The Titanic. The sole purpose of this really is to show that the rule in The Titanic has been applied in a wide variety of cases which came before the American courts.

BRENNAN J: By all means, produce it, Mr Rayment, and we will see if your opponents wish to say anything about it subsequently.

MR RAYMENT: Thank you, Your Honour. Your Honours, the cases upon the matter that I just mentioned are Nos 4 to 9 in the list just handed up, and I do not do any more than give Your Honours a convenient reference to those cases. Schoenbaum, which is No 3 in that list, is a commentary upon the US Supreme Court decision referred to by my learned friend, Mr MacFarlan, in one of the texts.

Your Honours, the first of the materials handed up, Professor Jackson's article, is an article to which we refer the Court dealing with the construction of the 1976 Convention which we were reminded about last night, set on the search of Justice Deane, which suggests, consistently with the submission made in-chief, that the 1976 Convention is, on its face, a Convention which is independent of the nationality of claimants, the time of the occurrence, the place of the occurrence and the like. Your Honours, Professor Jackson suggests that at paragraph 2 under the heading "Limitation Proceedings" on page 127, and then, again, he refers to Article 15.1, in effect suggesting that it means what it says when it uses the word "whenever".

BRENNAN J: Where is that?

MR RAYMENT: If Your Honour would bear with me a moment - I have not got my marked up copy. I have just asked my learned junior to find that page, Your Honour, and I will come back to it if I might.

Your Honour Mr Justice Deane asked my learned friend Mr MacFarlan whether the fact that a particular country had enacted a transitional provision, like the Dutch provision, would be a fact relevant to the construction of an international Convention. In our submission the answer to that is suggested by Article 31 of the Vienna Convention and the answer, we would suggest, is no. When one has regard to the matters referred to in either Article 31 or Article 32, they would not comprehend the unilateral act of one of the parties, in the nature of the implementation of a treaty.

Your Honours, at the foot of page 64 of the transcript Your Honour Mr Justice Deane asked a question of Mr MacFarlan, in effect, as follows:

if this was a purely national exercise, there would be great force in the view that one Act was repealed by another Act which commenced to operate, therefore you simply substitute one regime for another in terms of procedure. But if the relevant legislative intent was that the Convention would operate in accordance with its international effect, there is no basis for that approach on what is before us.

Your Honours, in our respectful submission, Article 30 of the Vienna Convention would suggest that the same is true internationally as would be true locally because it refers to incompatibility of two treaties, and where there is not an identity of parties between the two treaties, as between those who are identical, the same result follows according to Article 30.

Your Honour Justice Brennan drew attention to section 6 of the Act of 1989 and the preamble to the Convention, in our respectful submission, which is part of the schedule, confirms the view that one is dealing with a treaty between various State parties, the construction of which is to be uniform. In our respectful submission, that would support the notion that one has regard to the international intention.

Your Honour Justice Deane asked, at page 68 of the transcript, how it would work. The page 68 question was about New Zealand. At page 69, Your Honour asked what would happen if two limitation funds were necessary to be constituted in respect of the same vessel because different conventions applied in different ports. In our submission, the answer to that is that if it was necessary for the shipowner to limit under 1957 and he could, in the second port, then he would do so and the amount which he found it necessary to pay, as a result of that, could be the subject of proof by him under the 1976 Convention fund, pursuant to Article 12.2 of the 1976 Convention. Conversely, he could do the reverse and apply Article 3.3 of the 1957 Convention. That approach is consistent with the decision of Mr Justice Brandon in Giacinto Motta.

Your Honours, my learned friend, Mr MacFarlan, put, about Article 9, that the claims referred to in Article 9 of the 1976 Convention - he put this at page 70 - must be claims which will arise in the future, but in our respectful submission that ignores the fact that the fund will not be constituted until some event making the shipowner liable has occurred and the claims would - or most of them would - have arisen prior to the constitution of the fund. It would only be a claim, for example, stemming from a late consequence of an injury or a death that might not exist at the date of the constitution of the fund.

My learned friend, Mr MacFarlan, put - at page 71 of the transcript - that the cross-vesting legislation would not have carried over to the Federal Court the benefit of section 335 of the Navigation Act. In our submission, Mr MacFarlan must have been referring to the State Cross-vesting Act. Section 4(2) of the Jurisdiction of Courts (Cross-vesting) Act of the Commonwealth puts the matter beyond doubt, in our respectful submission. Once you have a conferral of jurisdiction on the supreme court of a territory, that is given to the Federal Court by section 4(2) and it does not have to be a State matter at all. Indeed, it cannot be a State matter.

Your Honours, my learned friend, Mr MacFarlan, put a submission about the word "personal" in Article 4. We handed up yesterday and I did not refer to orally, but may I now just give a reference to several of the articles which were handed up yesterday on this point. Your Honours, it is discussed in the work of Griggs and Williams at page 33 and following and in the article of Professor Grime at page 105 and following in the materials handed up yesterday. Regulation 52 is the answer to a question put at page 73.

Your Honours, regulation 52 is the provision enabling the Federal Court to order the release of a vessel from arrest, but of course only a vessel arrested in the Federal Court. Therefore in the Victrawl case, we are free to submit that there is a contrary intention for the purposes of section 8, and we do so.

I have blown hot and cold on my concession in Sanko a number of times, and the mature reflection that I have about it is that I was right at the outset to seek to withdraw from it. In our respectful submission, it is a matter of law only. That is referred to in paragraph 11. It is just like a concession of law made in a court below. It is foreign matter in the case stated because it is not a fact and whatever the effect of it is, the Court is not bound by it. We have submitted in Victrawl to the contrary of it and we have invited my learned friend, Mr Hughes, to be heard in Sanko anyway on that question. In our respectful submission, it had little or nothing to do with the grant of special leave by this Court.

BRENNAN J: But even if it be a question of law, if on proceedings before this Court it now appears as a conclusion of law to be arrived at - and this may be open to argument - that the same set of events cannot be subject to the two regimes, is there any reason why we should not revoke the grant of special leave on the basis that the regime which was by concession the one to apply leaves the question of the application of the 1976 regime a moot point?

MR RAYMENT: The concession was really a concession by my learned friend, Mr Hughes, in our submission. It was submitted by Sanko below, as it had to be, when that case began that it could seek a decree of limitation under whichever limitation Convention was available to it. That proposition was controverted as to the law only with respect to the 1957 Convention. Paragraph 11 of the case stated does not travel beyond the fact that both parties submitted to the Federal Court that the 1957 Convention was applicable by section 8 of the Acts Interpretation Act to the grounding and sinking of the "Sanko Harvest".

The case stated, if one looks at it, has foreign matter in paragraph 11. It poses the question for the Court: what is the true effect of the 1976 Convention? If the conclusion of the appeal in the Victrawl matter is that the 1976 Convention is available in respect of the limitation of liability, notwithstanding that the liability arose before 1 June 1991, then Sanko, as plaintiff, would inform Mr Justice Sheppard that any application pursuant to the 1957 Act is abandoned. It is not as if this concession is going to be of any use to anybody after the date of this appeal. Indeed, it has informed - - -

BRENNAN J: The question will then be whether you are estopped.

MR RAYMENT: Yes. Your Honour, that would, I suppose, be a case about the background to paragraph 11 of the case stated. The effect of revocation of the grant of special leave, of course, is to leave the orders made by the Full Federal Court final. What happened in this matter was that we came before Your Honours in the Victrawl matter and the Sanko matter, submitted that the Victrawl case merited a grant of special leave, and asked Your Honours to keep the Sanko case either alive by adjourning the application for special leave, or to grant special leave in that. Your Honours granted special leave upon the request of Sumitomo that the Court do so if it was going to grant special leave in the Victrawl case. The effect of rescinding the special leave would be to fix Sanko with an issue estoppel arising from the Full Court's decision, the consequence of which would possibly make that issue estoppel conflict with the Court's order in the Victrawl case.

The course of argument before the Federal Court did not travel beyond, in this matter, what Your Honours have in the supplementary submissions. That is, there was a submission made to the Court that section 8 preserved the right of Sanko to proceed. The difference between that argument and the present one is that it is now submitted that there was a contrary intention.

BRENNAN J: Just so there will not be any further misunderstanding, what is the ultimate result of your mature consideration about the concession?

MR RAYMENT: In our respectful submission, it ought to be disregarded by the Court.

BRENNAN J: By that you mean that for the purposes of the Sanko appeal you seek to withdraw the concession?

MR RAYMENT: Yes, Your Honour, and that the matters of prejudice that have been referred to - - -

DAWSON J: It is not quite that, it is? That the concession does not mean anything, that is what you say.

MR RAYMENT: Yes, we say it is foreign matter in the case stated, in any event, Your Honour, it is not a fact. The concession, of course, was not that the 1957 Convention applies to the exclusion of the 1976 Convention in any event. Those are our submissions, if the Court pleases. The page reference to Professor Jackson is page 133 and page 127, if the Court pleases.

BRENNAN J: Thank you, Mr Rayment. Mr MacFarlan, do you wish to say anything in relation to the matter of the material that was handed up?

MR MacFARLAN: No, we do not, Your Honours, but could I add in response to Justice Deane's inquiries yesterday that our researches have not uncovered any authorities further to those of which the Court is aware. If the Court pleases.

BRENNAN J: Thank you. Mr Hughes, have you anything to say either with respect to the supplementary material or the question of the concession?

MR HUGHES: Not with respect to the supplementary material, Your Honours. I want to say something very briefly about the concession. Before I do so may I repair an omission on my part. We handed to my learned friends this morning before we came to Court two documents: one is an article by Chief Justice Elias, a work of his, "The Modern Law of Treaties." He is the Chief Justice of Nigeria, but it is a fairly substantial work. May I hand copies up without making any submission about them, because it refers to the Ambatielos case. I am sorry I did not do that earlier. Also, if I may, copies of a relevant extract from Halsbury, 4th Edition, on the Ambatielos case. It does not say very much but it just refers to the case and accepts it.

On the withdrawal of the concession or agreement I wish to say only this, and I do not propose to make any debating points about it. The position has been reached, in our respectful submission, where there are two alternative courses. One would be to revoke the special leave - and I do not want to say anything more about that course - or, alternatively, if it is not provoked, to require the appellant in my appeal to elect now for the 1976 Convention if it is applicable as a matter of law. My learned friend should not be entitled, in my respectful submission, to keep this sword of Damocles hanging over our head. The appropriate course is that he should say, "Aye" or "No" now in a binding way, "I rely on the 1976 Convention to the exclusion of the 1957 Convention if the 1976 Convention is applicable and if it is not, as a result of the decision of this Court, I accept that I can and will place no reliance on the 1957 Convention."

BRENNAN J: Would the election be binding in the absence of knowledge as to whether the 1976 Convention would apply?

MR HUGHES: Yes, Your Honour, having regard to the course of conduct and the several U-turns which the appellant has made. He says he can elect after judgment; he wants it all ways. He should be required to elect now if he wants to retain his special leave, if Your Honours please.

GAUDRON J: Before you resume your seat, Mr Hughes, does the concession have any special bearing on costs over and above that which would normally be the case?

MR HUGHES: I cannot in my state of knowledge, Your Honour, reliably answer that question. If the question of costs may arise, perhaps it could be reserved. My learned junior may be in a better position than I to answer that question because he is familiar with the course of the trial. If Your Honours please.

BRENNAN J: Thank you, Mr Hughes. Mr Rayment, do you wish to say anything about the question of election?

MR RAYMENT: Do Your Honours accede to my learned friend Mr Hughes' suggestion that I should elect, because if it were necessary - - -

BRENNAN J: No. What do you wish to say about whether you should be put to any election?

MR RAYMENT: In our respectful submission, the paragraph in the case stated which founds this enterprise is no more than a concession of law made by two parties in a document, it being foreign matter, in paragraph 11 of the case stated and, in our respectful submission, no such election should be sought or imposed, but we would be in a position to deal with it at short notice if such a condition were imposed.

BRENNAN J: Thank you. The Court will not be reaching any decision on any of the points that have been raised in the case thus far. The Court will consider its decision in this matter and will adjourn until tomorrow morning at 10.15 am.

AT 12.12 PM THE MATTER WAS ADJOURNED SINE DIE