Halden & Anor v Marks & Ors P20/1995 [1995] HCATrans 240 (7 August 1995)

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halmar 7.8.95

TRANSCRIPT

OF PROCEEDINGS

AUSCRIPT

Western AustraliaLevel 4Law Courts Building1 Victoria AvenuePerth WA 6000GPO Box 9955Perth WA 6001Phone [phone]Fax [phone]

halmar 7.8.95

HIGH COURT OF AUSTRALIA

TOOHEY J

No P 20 of 1995

HALDEN and LAWRENCE

and

MARKS and OTHERS

PERTH

9.34 AM, MONDAY, 7 AUGUST 1995

Continued from 4.8.95

halmar 7.8.95

HIS HONOUR: First up, I wish to draw attention to a significant error in the reporting of events at the hearing in this Court last Friday. On Saturday, I read in two newspapers, to my considerable surprise, and concern, that I had granted the applicant special leave to appeal, from the judgment of the Full Court. I did no such thing, nor was I asked to. On Friday morning, the applicants filed an application for special leave to appeal, together with a summons seeking to restrain the Commissioner from proceeding further, until determination of the application for special leave to appeal.

On the basis that there was an urgency about the matter, and because there was a sitting of the Full Court in Sydney on 14 August, to hear other applications for special leave to appeal, I directed that the applicants application for special leave be fixed for hearing on that day. I then proceeded to hear the application for injunctive relief, pending the hearing of the application for special leave, and that application, of course, stands part heard until this morning. Whether or not there will be a grant of special leave, will, of course, be a matter for the Court, sitting in Sydney on 14 August. I trust that the error will be corrected as soon as possible.

Now, Ms Vanstone?

MS A.M. VANSTONE QC: May it please your Honour, I appear with MS JOHNSON, for the Commissioner, and I seek leave to be heard, your Honour, only on the question of the work which the Commission is planning to undertake this week.

HIS HONOUR: Yes.

MS VANSTONE: We understood from reports of last Friday's proceedings, that that might be a matter on which your Honour would wish to have some information, and the Commissioner has authorised us to come down and provide that if your Honour wishes to hear it.

HIS HONOUR: Yes, thank you, well assuming that there is no objection to that - if there is counsel should let me know immediately - I propose to hear what Ms Vanstone has to say?

MR GYLES: Your Honour, I have no objection to hearing it at all, it may be something may arise out of it, but we do not object to the Court's hearing.

HIS HONOUR: I understand that, Mr Gyles. Yes, Ms Vanstone?

MS VANSTONE: Thank you, your Honour. If your Honour pleases, we are prepared to re-arrange witnesses and deal with topics that do not directly affect the plaintiffs or the applicants in this matter, if that might assist your Honour in consideration of the interim injunction application. I wonder whether I ÄÿÄÿÄÿ

HIS HONOUR: Could we just, in view of the confusion that has already arisen, what I am considering at the moment is, you will appreciate, that I want to make sure that everyone else does, is whether there should be an interim injunction restraining the Commissioner, until a decision in this particular application. And that, no doubt, is what you are addressing yourself to.

MS VANSTONE: Yes, your Honour. Thank you, sir.

HIS HONOUR: I am sorry, I think I have interrupted you. You said that the Commission was prepared to re-arrange witnesses.

MS VANSTONE: Yes, or deal with separate topics and I wonder whether I could outline to your Honour four bodies of evidence which could be dealt with during this week, at least in part, so that your Honour will see what is available to us, if you like?

HIS HONOUR: Yes.

MS VANSTONE: Sir, had these proceedings not become on foot, then naturally, we would have proceeded this week, to deal with the cross-examination of Mr Kovacs, and as a matter of fairness, both to Mr Kovacs and to Dr Lawrence's representatives, we expected that that would proceed forthwith. Indeed, it was to proceed last Friday, but Mr Gyles secured a postponement, if you like, of that evidence, that cross-examination until today. In a similar class, is the cross-examination of the second witness called in the Commission, Mr Willoughby. His examination in chief was taken at short notice on Friday, and is all but complete, so he, like Mr Kovacs, is awaiting cross-examination.

.D.

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So, that is the first area, sir. The next body of evidence that we were planning to embark upon concerns evidence of certain members of the press as to how they became aware of the petition and how widely known it became before it was tabled. Their dealings with Dr Lawrence's staff and Mr Halden's staff with respect to the petition and also investigation into the imprest account of Dr Lawrence, and I am assuming that your Honour has quite a reasonable understanding of the background to these matters.

[9.39am]

HIS HONOUR: Well, I would not make that assumption Ms Vanstone.

MS VANSTONE: Well, certainly with respect to the petition, but there is an allied matter. The imprest account of Dr Lawrence which was under investigation and which investigation culminated in the same week that the petition was tabled. So, that evidence, sir, does not in any direct way affect Dr Lawrence's knowledge of the petition itself prior to its tabling. In so far as that evidence affects Mr Halden, it is likely to be non contentious. Associated with that, a sub category, if you like, is the evidence of some members of parliament of various parties as to their knowledge of the petition prior to its tabling, and again that evidence does not directly touch Dr Lawrence at all.

Your Honour, the third category of evidence which we can take this week, at least in part, although we were not planning to at this stage, concerns statements made by certain parliamentarians, including Dr Lawrence and Mr Halden, outside parliament as to their knowledge of the petition and the events leading up to its tabling. So, these are statements that were made to the press, both at the time and in the ensuing years and they have already been widely published, but in some specific cases we consider that proper proof should be offered of those particular statements. That is really a formal matter which we could at least embark upon this week if the need arose. Finally, your Honour, we planned to take, in any event, legal argument this week on the topic of public interest immunity, and that has been raised in relation to the evidence of conversation within the cabinet room.

We have already fixed Wednesday afternoon and Thursday morning of this week for the taking of this argument and the Commissioner was planning to take some time, perhaps a day, and he thought perhaps Friday this week to consider that matter.

HIS HONOUR: Is that argument being taken - was it proposed that it be taken simply on a general basis without reference to particular evidence?

MS VANSTONE: That is right, sir.

HIS HONOUR: Yes.

MS VANSTONE: There would not be any evidence at all.

HIS HONOUR: Would there be a problem in accelerating, bringing forward that aspect of the Royal Commission's proposal.

MS VANSTONE: Only this, your Honour, that the Commissioner gave counsel for all parties until Tuesday afternoon to file some written submissions.

HIS HONOUR: Yes. Yes, thank you.

MS VANSTONE: And so, in our submission, at the least that argument and category 3 that I mentioned could proceed pending your Honour's decision without fear of any prejudice to the plaintiff's interests. Sir, the Commissioner has asked us to say that he is concerned at the cost to the public of any further interruption to the work of the Commission and he has authorised us to make any undertaking as to the way in which the Commission proceeds this week, if that might alleviate any of your Honour's concerns as to securing the plaintiff's interests and at the same time allow some work to be done. If your Honour pleases.

HIS HONOUR: Thank you very much for that Ms Vanstone. Now, I have heard from counsel in a general way as to the reasons for and against the grounding of an interim injunction pending the determination of this present application. Mr Giles, do you want to say anything about any particular aspect arising from what Ms Vanstone has said.

MR GYLES: Your Honour, very briefly, category 1, in category 2, in my submission, would plainly be very closely associated with the arguments we have presented and should not be undertaken, we would respectfully submit. .D.

.D.03AUG07.BWC

Category 3, Statements Made Out of Parliament, would be, if they form part - they presumably would form the basis of saying: because they were admissions later they throw light upon knowledge at the time. That, your Honour, would be a central way of questioning or impeaching what somebody has said. And whilst it may be that if they were statements made and can be proved, in one sense there is no damage flowing from it immediately; it is part of the process of questioning what has been said in Parliament.

[9.45am]

We have no difficulty about topic 4. Your Honour, it is rather interesting though to note that in their opening to the Commissioner, Ms Vanstone indicated that the commission would be dealing with for its topics - for example, like Mr Easton's history and Mr Court's relationship with PennyÿEaston and the supply of documents by Mr Court to Penny Easton. Now, those matters have nothing to do with us at all. And if they are proper matters for inquiry, as to which we say nothing at the moment, it is very intriguing that you have quite disparate and separate matters which have been opened and which are not proposed to be dealt with this week.

HIS HONOUR: Mr Solicitor?

MR MEADOWS: We have nothing to say about this, your Honour, only to raise one query though and that is: I take it from what your Honour has said that this is - your consideration of these matters is directed simply at the question as to whether an interim injunction should be granted pending your decision on the application for an interlocutory injunction.

HIS HONOUR: Oh, indeed, yes. I hope I have made that clear and if repetition is necessary to make it clear I will repeat what I said earlier; that I am really dealing now with the application made by Mr Giles just before we adjourned last Friday in which he sought an interim injunction pending a decision on this matter.

MR MEADOWS: Yes. My reason for raising it, your Honour, is simple and that is that if undertakings were forthcoming from the Commissioner as to the conduct of the hearing during this week so that the Commission was not dealing with any matter which might impinge on the questions which are before you, that undertaking might be sufficient to save us all the trouble of worrying about the question of an interlocutory injunction.

HIS HONOUR: In what sense are you using the term "interlocutory injunction"?

MR MEADOWS: Well, I am saying pending the hearing of the application for special leave which is the application which is before you today.

HIS HONOUR: No, it is not. No, it is not. What is before me is the application for an injunction pending the hearing of the application for special leave.

MR MEADOWS: That is what I said, I thought.

HIS HONOUR: Did you?

MR MEADOWS: Yes.

HIS HONOUR: Perhaps I am unduly sensitive on this aspect, MrÿSolicitor.

MR MEADOWS: Well, there were two questions that I ÄÿÄÿÄÿ

HIS HONOUR: What I take you to be saying is that the week may, in any event, fill itself.

MR MEADOWS: Yes.

HIS HONOUR: Or is capable of being filled not only so as to meet the application that was made on Friday night but to meet the more substantive application for an injunction pending the hearing of the application for special leave.

MR MEADOWS: Yes. And I am simply saying if there are undertakings which are satisfactory, then ÄÿÄÿÄÿ

HIS HONOUR: Well, that may be but I do not know that we have reached that point, have we?

MR MEADOWS: No, I am not suggesting that we have.

HIS HONOUR: No. I mean, Wednesday, Thursday and Friday now seem to take care of themselves, from what Ms Vanstone has said.

MR MEADOWS: Yes.

HIS HONOUR: A program has been laid down by the Commissioner which will occupy Wednesday, Thursday morning and time to be taken by the Commissioner on Friday with no suggestion that Thursday afternoon would be occupied for any other purpose. So that narrows the compass of contention perhaps to today, tomorrow and Monday of the following - no, the Monday is the hearing date. So it is really only today and tomorrow that we are concerned with.

MR MEADOWS: Yes. Well, my simple point was that if there were undertakings which were satisfactory in respect of those 2 days, then why are we ÄÿÄÿÄÿ

HIS HONOUR: Why are we here?

MR MEADOWS: Yes.

HIS HONOUR: Well, the question is rhetorical but certainly if it were possible for some arrangement to be made which really are filled in today and tomorrow from the Commission's point of view and in a way which MrÿGyles is satisfied involved no prejudice to his clients, then certainly. But if that position cannot be reached then I still effectively have to deal with an application which makes clear whether the Commission can proceed or not in respect of today and tomorrow.

MR MEADOWS: Understood, your Honour.

HIS HONOUR: Now, whether if I adjourn for a few minutes it is possible to give effect to what you have suggested, Mr Solicitor, I do not know but I am certainly prepared to do that.

MR MEADOWS: Yes. Well, I think it is going to be a matter between my learned friend Ms Vanstone and Mr Gyles.

HIS HONOUR: Yes. Because in the end if I grant Mr Gyles application, clearly I would exclude from any injunction the hearing which the Commissioner proposes for Wednesday and Thursday in relation to public interest immunity. So I would really be granting an injunction in respect of today and tomorrow and today would be taken up in large part, I suppose, by argument in this court - not that that directly affects the Commissioner's activities unless the court made some interim order. And I would expect that tomorrow at least would be taken up by my consideration of the arguments.

So in a sense we are really talking about 2 days that would be occupied in this court either in argument or in consideration. And I suppose from the Commission's point of view it might be said: well, the most that it would lose would be 2 days, .D.

.D.04AUG07.LTW

Monday and Tuesday.

[9.52am]

MR MEADOWS: But I think the point is that if the Commission is able to confine itself to matters that are not of controversy ÄÿÄÿÄÿ

HIS HONOUR: Yes, I know but taking a more pessimistic view, from the Commission's point of view, it stands to lose a hearing today and tomorrow. Now, if it is possible for that to be filled in a way that does not cause concern to anyone involved, well, then that seems a very sensible outcome. But I do not think it is something that I can canvas from counsel. It is probably better that I adjourn for a few minutes if it is thought that it is going to serve any purpose.

MR MEADOWS: Well, I think you might have to ask Mr Gyles that, yes.

HIS HONOUR: Yes, I no doubt will do - and I shall do. Mr Gyles?

MR GYLES: Well, we are very happy to participate in that process, your Honour.

HIS HONOUR: Do you see any point in it, Ms Vanstone?

MS VANSTONE: Your Honour, with respect, not a great deal because I think I have covered the areas really. Sir, I do not want to be pedantic but it is the question of today, tomorrow and Wednesday morning. The Cabinet argument starts Wednesday afternoon. Certainly, we could ÄÿÄÿÄÿ

HIS HONOUR: I beg your pardon, perhaps I misheard you there.

MS VANSTONE: Yes. I am sorry, sir.

HIS HONOUR: It is Wednesday afternoon, is it?

MS VANSTONE: Yes, it is. Potentially it could be brought forward but then if it is only going to take a day that would leave extra time at the end of the week. Sir, the press evidence is effectively the only way we can supplement the public interest immunity argument to effectively use the week. Can I just say in relation to other areas - for example, those mentioned by Mr Gyles, Mr Easton's history and Mr Court's relationship with Ms Easton - certainly they are going to be the subject of evidence in the Commission. But Mr Gyles is assuming that when the hearing started all the evidence was ready to be presented and that is just not, of course, the way it is and those areas are not ready at this time. We could embark on them, I suppose, but only at the risk of very badly fragmenting them.

HIS HONOUR: Yes.

MS VANSTONE: So that is why I did not mention those other discrete areas.

HIS HONOUR: Well, I suppose, my difficulty is that if the applicants raise some sort of concern as to the other aspects of the Commission's inquiry that have been mentioned, then short of - as it were - hearing considerable argument from counsel as to whether there is a real cause for concern, I would have to measure that against the possible loss of 2<< days of the Commission's time and decide whether in all the circumstances that time should be foregone or whether the Commission should proceed with those matters notwithstanding the concern that has been expressed by counsel for the applicants. Now, as I say, I do not think really there is much point in my asking counsel to go into a great deal of detail about what that evidence is; that is not the matter that I am essentially here to deal with today. If counsel think that a short adjournment might serve some purpose, well, I will grant it. If it is felt that there is no point at all, well, then I will go on and deal with Mr Gyles' application.

MS VANSTONE: Well, I am happy to make an attempt, sir, if that will assist.

HIS HONOUR: All right. Thank you for that.

MS VANSTONE: Thank you, sir.

HIS HONOUR: I will adjourn for a few minutes. If you need a bit more time, let me know. If it is clear that it is not going to be possible to occupy the Monday - that is today, tomorrow and Wednesday morning with evidence that truly raises no concern for the applicants then I will return and deal with Mr Gyles' application.

SHORT ADJOURNMENT

.D.

.D.06AUG07.BWC

[10.18am]

HIS HONOUR: To whom do I look; you, Mr Gyles?

MR GYLES: Yes, your Honour. Your Honour, I can tell your Honour this; that without admissions, of course, your Honour, etcetera, etcetera, we are prepared to accept Counsel Assisting's assurances that between now and a sufficient time after the completion of the special leave and associated injunction hearing next week the Commission will proceed with the categories 3 and 4 which she had identified earlier on the transcript. On that basis we do not wish to pursue the application further, your Honour.

HIS HONOUR: Now, when you say "the application", remember that I have an application within an application.

MR GYLES: Yes.

HIS HONOUR: I have the application you made on Friday night and the more substantive application.

MR GYLES: Well, I do not wish to pursue the Friday night application further at all.

HIS HONOUR: Yes.

MR GYLES: I do not wish to pursue the application for interlocutory injunction pending special leave further. I would ask your Honour, however, to refer that matter to the Full Court for determination on Monday, as it were. Whether there needs to be some - yes, yes. Your Honour, what I am seeking to avoid, your Honour, is a whole new batch of papers to be prepared.

HIS HONOUR: Yes, I appreciate that.

MR GYLES: And it may be we will need to amend the relief in some way to ask it until determination of any appeal perhaps and then have your Honour refer that to the Full Court or to the court hearing the application.

HIS HONOUR: Well, you would probably need a fresh summons. But I do not see for myself why all the material filed in the present application should not simply be sufficient copies be made.

MR GYLES: Yes. Your Honour, would the injunction be heard by the three members hearing ÄÿÄÿÄÿ

HIS HONOUR: Well, that is another possibility you see.

MR GYLES: It may not be. It may be a single justice that would then ÄÿÄÿÄÿ

HIS HONOUR: That is right. It may be referred. I mean, who knows.

MR GYLES: Yes, yes.

HIS HONOUR: But the Full Court on Monday would hear the application for special leave. If it were refused then no question of an injunction arises.

MR GYLES: That is the end of it.

HIS HONOUR: If it were granted, given contingencies of time and other factors the court might proceed to deal with the question of injunctive relief pending a determination of the appeal.

MR GYLES: Yes.

HIS HONOUR: Or it might refer that, as has happened in the past, to a single justice.

MR GYLES: Yes. I think at least the Registry is aware of the fact that such an application is likely to be made, assuming special leave were granted.

HIS HONOUR: Yes.

MR GYLES: But we have no information as to what might or might not be proposed and that might not be known until the day, I guess.

HIS HONOUR: Well, your present summons might be enough, might not it?

MR GYLES: Well, your Honour, if your Honour permitted us to amend it to add "until the determination of any appeal" ÄÿÄÿÄÿ

HIS HONOUR: Did I?

MR GYLES: If your Honour - prayer 2.

HIS HONOUR: Yes?

MR GYLES: And adding in the third line ÄÿÄÿÄÿ

HIS HONOUR: Do you say: if I permitted you to?

MR GYLES: Yes, I am just saying whether we need ÄÿÄÿÄÿ

HIS HONOUR: Oh, right.

MR GYLES: I am just saying whether we needed an application.

HIS HONOUR: Yes.

MR GYLES: But technically, your Honour, it says "or until further order".

HIS HONOUR: Well, it says:

Until the determination of the applicant's application for special leave or until further order.

MR GYLES: So technically it is all right.

HIS HONOUR: I would have thought that is enough for your purposes. What happens, of course, will be a matter for the court on Monday.

MR GYLES: Yes. And a further order would be good enough.

HIS HONOUR: And that you would perhaps by way of precaution have sufficient other copies of the material available.

MR GYLES: Yes, your Honour. That will be done, your Honour.

HIS HONOUR: Well now, I want to be quite clear about what is happening, Mr Gyles.

MR GYLES: Can I put it positively rather than negatively?

HIS HONOUR: Yes.

MR GYLES: Our understanding - now, the assurances we have received are firstly that so far as the immediate progress of the Commission is concerned it will deal with the categories 3 and 4 .D.

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which were outlined by my learned friend previously.

[10.23am]

HIS HONOUR: Right.

MR GYLES: That that position will pertain for a time sufficient to enable us to get back from Sydney, in the event that that matter is unsuccessful, and that will be sometime on Tuesday. And that is all your Honour.

HIS HONOUR: Well, then would it not be better to simply adjourn the application, that is the filed application to which you have just referred, then that stands on the papers.

MR GYLES: Yes.

HIS HONOUR: How it dealt with, if the need to deal with arises consequent upon the application for special leave, it will be a matter for the court, but as I say, just logistically, it might be helpful to have additional copies of the material available for the court, before Monday.

MR GYLES: Yes. Would your Honour contemplate then, that it would be adjourned until Monday?

HIS HONOUR: No, I would simply adjourn it sine die, I think, for my part on the footing that it is then a matter for you to air that application before the Full Court and see what happens to it.

MR GYLES: Yes, as long as we do not have any problems with parties saying that they did not know it might come on that day, your Honour.

HIS HONOUR: Yes.

MR GYLES: That is the only difficulty that might arise there. If it is in the list on that day, well nobody can say that. But I do not - I mean, it is a matter of practice and procedure, your Honour, I am not sure quite ÄÿÄÿÄÿ

HIS HONOUR: Well, it is not just that, it is - well, I suppose I could adjourn it until that. My reason for hesitating a little is because I do not want to be thought to impose on the Court sitting on Monday, what it should do.

MR GYLES: Right, well I appreciate what ÄÿÄÿÄÿ

HIS HONOUR: Clearly, I am not seeking to do that.

MR GYLES: Is there a way of adjourning it until after the special leave list on Monday, your Honour? Though I imagine we will be last in the special leave list.

HIS HONOUR: Do you want to be heard on this, Mr Solicitor?

MR MEADOWS: No, your Honour, except to say that I do not think we will be taken by surprise.

HIS HONOUR: No, I must say - yes, I would not have thought that was the case. It is just a matter, really, of what is the most efficient way. I suppose from your point of view, Ms Vanstone, having made the submissions that you have made, and in light of the undertakings that have been given, you have nothing more to say on the matter, or do you?

MS VANSTONE: That is so, your Honour. Could I just clarify one thing, and I think it hardly needs clarification, that, as I understand the agreement, the Commission is free to investigate the whole range of matters. This undertaking only relates to the public hearings, or indeed private hearings. I think that is clear, but I just wanted to make ÄÿÄÿÄÿ

HIS HONOUR: Yes, well, I must say I took it myself to be to that effect. You accept that, Mr Gyles?

MR GYLES: Yes, your Honour, yes.

HIS HONOUR: Well, then, so far as your informal application on Friday night is concerned, that is that there be an interim injunction pending determination of the application for injunctive relief, then that simply goes by the board. That is withdrawn, really.

MR GYLES: That is so, your Honour.

HIS HONOUR: Yes, now, so far as the summons for interim relief, that is the summons filed on 4 August, seeking an injunction restraining in effect the Commissioner from proceeding further until determination of the application for special leave to appeal, that application will be adjourned. I think it probably is more satisfactory, if I adjourn it until 14 August. It is a matter for the Court whether it will hear it then, or at some other stage, if the need arises. And so there will be an order that that summons be adjourned until Monday, 14 August 1995.

MR GYLES: Your Honour, the only other thing - I had proposed this morning to tender in those proceedings, an affidavit by my instructing solicitor which exhibits two things: first of all, the evidence given on Friday, which completes, I think, the evidentiary material which is before the Commission, and secondly, some media publicity following Friday's - and I would seek your Honour's leave to file those affidavits - that affidavit in Court, and the exhibits, if I may?

HIS HONOUR: As relevant to what?

MR GYLES: As relevant to the injunction as to the damage which is being done, which will be the foundation for the injunction, your Honour.

HIS HONOUR: Do you want to be hear on that, Mr Solicitor?

MR MEADOWS: Well, I do not object to the affidavit being filed. As to its contents, I know nothing, and there may be ÄÿÄÿÄÿ

HIS HONOUR: You have not seen the document?

MR MEADOWS: I have not at this stage. I think I have been given it, but I have not actually read it. But all I am saying is, there may be some matters in it which we might take objection to.

HIS HONOUR: Certainly. I will allow it to be filed, Mr Gyles, but on the clear understanding that it is open to the solicitor to contest the contents as having any relevance if the occasion arises.

MR GYLES: If your Honour pleases.

.D.

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HIS HONOUR: Now, is there anything else I need do at this stage?

[10.30am]

MR MEADOWS: I am not sure whether it is necessary to reserve costs at this stage but ÄÿÄÿÄÿ

MR GYLES: Yes, perhaps if costs could be reserved to the disposition of the summons, your Honour.

HIS HONOUR: Well, I will reserve the costs of the present summons.

MR GYLES: Your Honour, the only other matter I would wish to raise is that my instructing solicitor tells me the record will be filed on time - that is, on Tuesday morning - but we will not get it until Tuesday morning because the printers cannot get it done - sir, the application book, I sorry, for the special leave application. We would like, if possible, to have until 2 o'clock that day to file the outline of submissions because they must refer back to the application book. We can serve one in blank probably on the Crown but it would be easier and better for everybody if we had the time to correlate the references, your Honour. At the moment, I think, your Honour said 10 o'clock on Tuesday.

HIS HONOUR: I think I said 10 am on Tuesday and 10 am on Friday for the Crown.

MR GYLES: Yes. Yes. I have not had a chance to discuss it with my learned friend but what I envisage is that it will need probably the morning to cross-reference then get ÄÿÄÿÄÿ

HIS HONOUR: Where will the material be prepared, here?

MR GYLES: Here, yes.

HIS HONOUR: So there is no need for it to be sent from anywhere else.

MR GYLES: No. No. I mean, we, therefore, would suggest 2 o'clock would be a practical time.

MR MEADOWS: I think we are relaxed about that, your Honour.

HIS HONOUR: All right. Thank you, Mr Solicitor. Very well, I will amend that earlier direction I gave to substitute 2 pm on the Thursday instead of 10 am. Do you still want to ÄÿÄÿÄÿ

MR GYLES: Tuesday.

MR MEADOWS: 10 am on ÄÿÄÿÄÿ

HIS HONOUR: Tuesday, I am sorry. You are content with ÄÿÄÿÄÿ

MR MEADOWS: 10 am on Friday.

HIS HONOUR: ÄÿÄÿÄÿ10 am on the Friday, Mr Solicitor?

MR MEADOWS: Yes, your Honour.

HIS HONOUR: Yes.

MR PENDLEBURY: Your Honour ÄÿÄÿÄÿ

HIS HONOUR: I forgot about you, Mr Pendlebury, do you have something to say on ÄÿÄÿÄÿ

MR PENDLEBURY: Yes, your Honour, only in relation to the actual special leave application. At this stage, I do not have explicit instructions as to whether or not we will be actually going to Sydney to seek leave to make submissions at the special leave application. So that we might have some flexibility in the matter, I would ask for leave to be able to file written submissions for that special leave applications, both dealing with the question of whether we should have leave to make submissions and also obviously submissions on the substantive issues that we brought to the court's attention on Friday.

HIS HONOUR: Yes, well, I do not see any problem with that since it includes a case as to why you should be allowed to be heard. What are you seeking by way of time?

MR PENDLEBURY: I think the position of the second respondent was they had until 10 am on Thursday or on Friday.

HIS HONOUR: But do you need to have the submissions of the - or the statement of case from the applicants before you file your material?

MR PENDLEBURY: I think to some extent we would, your Honour. We are responding to the issue of jurisdiction and I think that is something that is going to be part of the plaintiff's case - or the applicant's case.

HIS HONOUR: All right. Well, if you receive a copy of that material by 2 pm on Tuesday, when do you suggest that you should be permitted to respond to it?

MR PENDLEBURY: Well, I would be in a position to respond by late on Thursday, I think, your Honour.

HIS HONOUR: Well, I will give you leave to file written submissions, Mr Pendlebury, on behalf of your client as to the reason why your client should be permitted to be heard on the hearing of the application for special leave and as to the matters that would be raised if leave was so granted and that that material should be served upon the other parties by 4 pm on Thursday 10 August.

MR PENDLEBURY: If it please, your Honour. As I have said, it is a situation where we are not entirely sure whether we do intend to ÄÿÄÿÄÿ

HIS HONOUR: Well, you have leave so you are not bound to do anything it is simply that you have leave - that is, you have leave to file submissions. You may exercise that leave or you may not.

MR PENDLEBURY: If it please the court.

HIS HONOUR: Yes. .D.

.D.09AUG07.BWC

The court will now stand adjourned.

AT 10.34 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 14 AUGUST 1995 IN SYDNEY

.D.

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