Ambetu & Ors v Attorney-General of the State of Victoria & Anor M3/1996 [1996] HCATrans 34 (5 February 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M1 of 1996

B e t w e e n -

REX DAGI & ORS

Applicants

and

THE ATTORNEY-GENERAL OF THE STATE OF VICTORIA & ANOR

Respondents

Office of the Registry

Melbourne No M2of 1996

B e t w e e n -

BARRY JOHN SCHACKLES & ANOR

Applicants

and

THE ATTORNEY-GENERAL OF THE STATE OF VICTORIA & ANOR

Respondents

Office of the Registry

Melbourne No M3 of 1996

B e t w e e n -

BAAT AMBETU & ORS

Applicants

and

THE ATTORNEY-GENERAL OF THE STATE OF VICTORIA & ANOR

Respondents

Office of the Registry

Melbourne No M4 of 1996

B e t w e e n -

ALEX MAUN & ORS

Applicants

and

THE ATTORNEY-GENERAL OF THE STATE OF VICTORIA & ANOR

Respondents

Applications for special leave to appeal

BRENNAN CJ

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 5 FEBRUARY 1996, AT 2.51 PM

Copyright in the High Court of Australia

___________________

MR J. BEACH: If the Court pleases, I appear for the applicants in each of the four applications. (instructed by Slater & Gordon)

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria: May it please the Court, I appear with my learned friend, MR P.J. HANKS, for the first respondent in all of the applications. (instructed by R.C. Beazley, Victorian Government Solicitor.

MR R.A. FINKELSTEIN, QC: May it please the Court, I appear with my learned friend, MR C. M. SCERRI, for the second respondent in these applications. (instructed by Arthur Robinson & Hedderwicks)

BRENNAN CJ: Mr Beach.

MR BEACH: Your Honour, before I get to the substance of the matter, there is a housekeeping matter to attend to. As this Court will appreciate three of the four applications were filed out of time and the applicants in the Schackles, Ambetu and Maun proceedings would seek leave to - - -

BRENNAN CJ: Yes. You have nothing to say about that, Mr Solicitor?

MR GRAHAM: No, your Honour.

BRENNAN CJ: Nor you, Mr Finkelstein? You need not trouble about that, Mr Beach.

MR BEACH: If the Court pleases. There are four essential reasons, in my submission, why special leave should be granted in each of these cases. The first point is that the subject-matter of the applications involves the effect and operation of section 46 of the Public Prosecutions Act 1994 . Now, that section, if the majority view in the Court of Appeal is accepted, has fundamentally affected the Supreme Courts and, indeed, inferior State courts jurisdiction and or power to protect its own processes in terms of entertaining applications by private litigants for the punishment for contempt by people that interfer with the administration of justice in proceedings before any State court, and it is not an answer to say that section 46(5) preserves the Court's power to protect its processes of its own motion, and I will turn to that quite shortly. The second point is - - -

DAWSON J: But in the end, Mr Beach, it is just a question of construction of the section, is it not? Where is the point of principle? No doubt it is important and what the section deals with is of great importance but the exercise which the court had to engage in was merely one of construction.

MR BEACH: It was a question of construction in the first degree but the question of construction required the Court of Appeal to deal with two principles of construction. The first is that authority would presently have it that the purposive approach rather than the literal approaches are to be preferred, and the second proposition is that where there a question of the taking away of fundamental rights, that the principle of construction is that the legislature must clearly and unambiguously manifest an intention to take away fundamental rights.

DAWSON J: They are wel- established propositions, are they not?

MR BEACH: Yes, but the questions though in this case is that the majority consisting of Justices Brooking, Tadgell and J.D. Phillips, did not, in my submission, apply either of those canons of construction, because if they had applied those canons of construction, that would have dictated only one result, in my submission, and that is the result that section 46, although literally, on its face, it might be seen as preventing the applicants' application for contempt in the present case, ought to be read down, either in the manner found by the President, or in the manner found by Justice Hayne.

Now, I notice from the submissions filed by the respondents that it is put that there are inconsistent constructions that the President and Justice Hayne placed on section 46. If the Court would - - -

DAWSON J: Section 46 is a most unsatisfactory provision, and a most unfortunate provision given that it deals with fundamental matters.

MR BEACH: Yes. That is the first point.

DAWSON J: That does not raise any point of principle for this Court to determine.

MR BEACH: The fact that the State courts' fundamental powers have been modified to such a significant extent and in such an unsatisfactory manner, raises, in my submission, a public interest point, particularly when one contemplates that, of course, State courts do also exercise federal jurisdiction and undoubtedly the point in that context has some additional element of public and more general significance other than that this is merely a question involving the construction of a piece of Victorian legislation.

But, as I say, on the construction issue, the majority, in my submission, did not apply fundamental canons of construction and that is a question of general importance, not only for the construction of section 46 of the Public Prosecutions Act but legislation generally that in such an unsatisfactory manner seeks to abrogate or take away or bury or modify fundamental rights and, in this case, the court's fundamental and inherent jurisdictional power to protect its own processes.

Now, the third point, in my submission, that would justify the grant of special leave is the question of compliance with section 85 of the State Constitution Act. Now, that point is of significance, not only in relation to whether or not section 46 of the Public Prosecutions Act complied with section 85 of the Constitution Act but whether, indeed, the narrow reading given by the court has more general application in relation to the validity of other Victorian Acts.

The fourth point, in my submission, that would justify the grant of special leave relates to the constitutional issues raised, and I must confess that the applicants did not raises these points below. They had contemplated raising these points below and they decided not to. That was the collective wisdom, if that is the right expression, at the time. The reason for that is that, as the Court will appreciate from the materials, the constitutional issues seek to agitate the question as to whether or not there is a separation of powers doctrine that applies at the State level; whether to be implied or derived from the Commonwealth Constitution or to be found in the State Constitution Act itself.

Now, the Court will appreciate that the Full Court in decision of the City of Collingwood v The State if Victoria dealt with that matter and the leading judgment of Justice Brooking found against any notion of a separation of powers doctrine at State level and that, of course, was a matter that this Court refused to grant a special leave for, although perhaps not on that point but in relation to whether the particular legislation dealt with in that decision affected the judicial processes of the court in any event. Now, those are the four points. I have touched upon albeit it briefly, but - - -

BRENNAN CJ: Now, so far as the constitutional points are concerned, they were not agitated in the courts below and, indeed, Justice Hayne observed that because they were not agitated, he would make no comment about them.

MR BEACH: Yes.

BRENNAN CJ: Now, that is not a very propitious start for an application for special leave on that ground.

MR BEACH: No. I put that as my fourth ground, and the first and - - -

BRENNAN CJ: If the others are all right, that might help a bit?

MR BEACH: I do not know but, certainly, I would have liked to have put it as more than a boot straps argument, if the Court pleases. Can I deal with the question of construction and the principles of construction that were either not applied by the majority or, if they were applied, were, in fact, misapplied. The Court would appreciate - - -

TOOHEY J: Could I just ask you this, Mr Beach: are there different canons of construction operating in respect to your - it appears to be the primary point, relating to section 46 of the Public Prosecutions Act, and then the question of compliance with section 85(5)(a) and (b)? I am not asking you to elaborate at the moment, but just to tell me.

MR BEACH: No. I was going to make this point that, curiously enough, in my submission, there is an internal inconsistency in the judgments of the majority because when construing section 46 as a Public Prosecutions Act, Justice Brooking, in particular, applied what he said was a natural and ordinary meaning of the words, but that could be read, he applied the literal approach. But when it came to determining whether or not there had been compliance with section 85(5)(a) and (b), an about-face took place in relation to the canons of construction and a purposive approach was adopted to that question.

Now, in my submission, whether or not one is dealing with section 46 of the Public Prosecutions Act or section 85 of the Constitution Act, a purposive approach is preferable to the literal approach. For the purposes of my submission, I do not say that there should be two different approaches, depending upon which particular section one is looking at.

If one considers what this Court said in Coco v The Queen and, in particular, at page 437 of that decision, it is difficult to see how the majority could have gleaned from section 46 an intention to take away fundamental rights and, in particular, it is difficult to see how the majority could, on any view of section 46, have found any clear manifest and unmistakable language to take away those fundamental rights. Indeed, quite the contrary - - -

BRENNAN CJ: What are you identifying as the fundamental right?

MR BEACH: Fundamental right is the right of a party, a private litigant, to approach the court to have the court deal with actionable contempt. Now, it could be expressed either in terms of a fundamental right of the party or it could be expressed in terms of a fundamental part of the court's inherent processes and its inherent jurisdiction to protect its own processes but either way, in my submission, the canon that this Court dealt with in Coco is applicable. In fact, the majority - Justices Brooking, Tadgell and Phillips - in fact, all conceded that there were quite a number of different constructions that should be given to section 46.

The Court will recall that Justice Brooking discussed six different constructions that could be given to section 46. Justice Phillips discussed three different constructions that could be given to section 46, although he ultimately conceded that there were in fact four different constructions and, it is difficult to see, given that to be the case, how it could, on the other hand, be said that one could apply the natural and ordinary meaning of the words used in section 46 and that one could glean from that an unmistakable and unambiguous intention by the legislature to deprive or to abrogate those fundamental rights.

Justice Brooking dealt with the matter at page 105 of the application book, where he referred to the "natural and ordinary meaning" of the words used in section 46, but as the New South Wales Court of Appeal said in Kingston v Keprose, which seems unarguable - this was said at page 421 - that is not decisive of the issue. Further, this Court said in Cooper Brookes v The Commissioner of Taxation, at page 320, that a literal approach, if inconvenience, may result in the rejection of that literal approach if the court can find an alternative interpretation to be applied which more accords with Parliament's intentions and does not ask to exclude fundamental rights.

Now, in my submission, the majority in the Court of Appeal did not come to grips with those canons of construction, and that is the error. Now, it might be said President Winneke and Justice Hayne themselves came to two different constructions but when one looks at what each of them found, President Winneke finding that section 46 should be limited to criminal proceedings and Justice Hayne finding that the section should be limited to public prosecutions; that is, prosecutions taken by the Crown, there is really very little difference in either of those two constructions and, in my submission, it is - - -

BRENNAN CJ: But there is, is there not? The second of those extends to public prosecutions in respect of civil litigation?

MR BEACH: Yes, although, as Justice Hayne would point out, the Attorney-General, at least, has never really been concerned with alleged interferences with the administration of justice in relation to civil proceedings. The Attorney-General and the Crown, in particular, have largely focused on criminal proceedings. So, there is an overlap between the two, and I do not say one is a complete overlap of the other, but there is no inconsistency between the two tests; just a slightly different emphasis. One focuses on the nature of the proceedings - that is the President's test - and the other one focuses on the nature of the office holder who may have, on behalf of the Crown, sought to bring a public prosecution for contempt, whether in a criminal proceeding or in a civil proceeding.

BRENNAN CJ: What submission do you have as to the meaning of 46?

MR BEACH: In my submission, the meaning of section 46 should be that which Justice Hayne found, that is that it appears in a section dealing with public prosecutions and that all that section 46 was designed to achieve was to take away what rights the DPP or a Crown Prosecutor had to bring a public prosecution and to vest those rights in the Attorney-General; nothing more, nothing less than that. In my submission, if there is a difference between the President's construction and Justice Hayne's construction, that Justice Hayne's construction is preferable and does not result in any artificial narrowing down or reading of section 46 or, indeed, any inconsistency with any of the other subsections of section 46, including section 46(5).

Can I turn and deal with the question of section 85 of the Constitution Act.

TOOHEY J: Is it right to say, Mr Beach, in regard to section 85, that if the question of construction were resolved as it has been resolved to date against you, that you have a unanimous bench holding that section 85 was complied with if section 46 is held to fall within the scope of that section?

MR BEACH: Yes, it is fair to say that. We have a 5:0 decision against us on that point.

TOOHEY J: So that makes the task of special leave on that point a rather difficult one?

MR BEACH: Yes. Well, of course, two of the five did not need to go on and deal with that issue - - -

TOOHEY J: No, but they did.

MR BEACH: They did, yes, and, of course, one has the judgment of Justice Cummins at first instance that, in my submission, is the correct way of approaching the interpretation of section 85.

TOOHEY J: Is it really a question of interpretation or construction or really almost a sort of value judgment based upon the material available as to the reasons that were given?

MR BEACH: In my submission, at least it is the former and I say it for this reason: Justice Hayne, at application book pages 250 to 251, and Justice Phillips at application book page 211, said that all that was necessary for compliance with section 85(5)(b) of the Constitution Act, that is the statement of reasons paragraph, is a statement which purports to be a statement of reasons. So, one has a question of construction as to what a statement of reasons means under section 85(5)(b).

TOOHEY J: Is that right, or is that to be read as meaning that it is not for the Court to inquire into the sufficiency of the reasons? If, on its face, it is a statement of reasons, that is sufficient.

MR BEACH: All judges, apart from Justice Tadgell, seemed to accept that the Attorney-General in her statement had given no reason for denuding the court of its power or jurisdiction to deal with an application made by a private litigant. Now, in my submission, that does not involve a question of assessment of the adequacy of reasons. That is an absence of reasons entirely. But Justices Hayne, Phillips, Brooking and the President held that that did not matter, as long as there was a speech read out or put to the Parliament by the Attorney-General in this case that there was a statement which purported to be a statement, that that was sufficient compliance.

TOOHEY J: Yes, but you are using the word "purported" in a fairly pejorative sense, are you not; as if it cloaks the true position?

MR BEACH: Yes.

TOOHEY J: What I was putting to you a while ago is that I understand from the reasons of the court that their Honours are saying there has to be a compliance but the sufficiency or adequacy of the compliance really is not something that the court is to be drawn into.

MR BEACH: Justice Hayne's approach was that as long as there was a statement which purported to be a statement - and he used the word "purports" - that that was sufficient and the court would not look further. He does not go to the stage of saying, "Well, you look at the statement of reasons but you can't assess the adequacy". That is implied in what he is saying, but my point is there was no statement of reasons given for the taking away of this right but, nevertheless, the Court of Appeal said because is was a statement which purported to be a statement of reasons that that was sufficient and the court would not look further to determine whether or not section 85(5)(b) had been satisfied in the circumstances.

Now, in my submission, that renders nugatory the operation of section 85(5)(b). It does no work at all under that construction. As long as a minister goes before Parliament and says, "I am going to make a statement", then whatever the content of the statement - say it is dealing with some totally extraneous material or subject matter - the effect of the Court of Appeal's decision is that that is unreviewable whether it purported to give a reason for the particular legislative reform or not.

TOOHEY J: Except that the purpose of that part of the legislation seems to require the Parliament to account, as it were, for the government of the day to account for the step that it is taking and it does that by a statement of reasons which the court may not necessarily inquire into but which then remains as a matter of political judgment perhaps.

MR BEACH: My time has run out; there is a flashing light. Can I only say this on that point, just to complete the submission on that point: it is one thing to say that the court will not review the adequacy of the reasons used. We do not quibble with that test, and that was the test adopted by Justice Cummins. The point was that in this case there was no reason given for the denuding of this court's inherent jurisdiction. Now, because there was no reason, we say that the Court can then look at the statement and determine quite simply that there was no reason. It does not involve questions of us looking into the policy of the propounder of the legislation, but the effect of the Court of Appeal's decision is that it has held that because the Attorney-General in this case purported to make a statement of reasons, that that was sufficient compliance without anything further.

BRENNAN CJ: Mr Beach, is there any other major point you wish to make in support of your application that time has run against you on?

MR BEACH: Yes. Two other points. First, in relation to - - -

BRENNAN CJ: Very, very briefly.

MR BEACH: - - - section 85(5)(a). It is quite clear that section 49 of the Public Prosecutions Act did not comply with that section. And the last point dealing with the question of the judicial power point: I only refer to the points in the outline of submissions and we adopt those for the purposes of this application.

BRENNAN CJ: Thank you. Mr Solicitor.

MR GRAHAM: If the Court pleases, may I turn first to the proposed constitutional points, just to seek to have them put on one side.

BRENNAN CJ: You need not trouble about the constitutional points. They have not been agitated and it is too late to do so on this application.

MR GRAHAM: If the Court pleases. So far as section 46 is concerned, we would simply emphasise two aspects. Firstly, that provision, with all its problems, is unique to Victoria, and the question which fell for consideration by the Court of Appeal, in our submission, was merely a point of construction in relation to that section. We would emphasise that there was no clear cut minority view competing with the unanimous majority view on the question of construction. In other words, there is no single view held by the minority which might persuade this Court that the majority view was attended with doubt. That view, accepted by three members of the specially constituted Court of Appeal, in our submission, sufficiently settles the law on this aspect for the State of Victoria.

DAWSON J: It is a very fundamental matter, though, is it not, that the court is dealing with?

MR GRAHAM: It is, your Honour. I cannot resile from the importance of the - - -

DAWSON J: And it is a very unsatisfactory provision, is it not?

MR GRAHAM: I would respectfully agree with that as well, particularly having regard to the provisions of subsections (2), (3) and 4).

DAWSON J: And it really is something that requires further attention by the legislature.

MR GRAHAM: That, I think I can publicly state, your Honour, is indeed the position now. But although the issues which section 46 raises are important in the wider sense, in our submission, the court's interpretation of that section does not satisfy the criteria for the grant of special leave. I think I would simply be repeating myself if I went beyond that.

I do which to add one further point on the question of purposes. Proceedings for contempt of court, as we now know, are essentially criminal in nature in all cases. The purpose underlying section 46 appears to be that the prosecution of proceedings of that character should rest with the State rather than with private litigants and, accordingly, the view advanced by the majority as to the meaning and scope of section 46 is in accordance with that purpose. On the section 85 matter, I would simply make a few - - -

BRENNAN CJ: There is really a logical leap in the proposition, is there not, Mr Solicitor? What you are saying is because a matter is criminal in nature, it is justifiable that the power to institute it should be vested in the State.

MR GRAHAM: Your Honour, perhaps I would prefer the word, "understandable" rather than "justifiable".

BRENNAN CJ: Well, "understandable" even. That rather assumes that where the criminal procedure might be taken against an agent of the State, the State should have the power to stifle the prosecution.

MR GRAHAM: That raises a competing view, your Honour, obviously, but a policy view nonetheless, with respect, rather than a matter of interpretation.

As to section 85, again that provision, perhaps unhappily, is a provision unique to Victoria and the reason why it took its present form is traced in some of the judgments of the Court of Appeal. The necessity for it arises out of the problem, as it were, of an accidental trenching upon the jurisdiction of the Supreme Court, as entrenched by Part III of the Constitution Act. It provides a mechanism whereby Parliament will be alerted to the fact that the Bill before it has, or may have, the effect of affecting the jurisdiction of the Supreme Court, and it provides what I would, perhaps, rather loosely call a parliamentary mechanism in order to ensure that such a state of affairs does not pass unnoticed by the Parliament. However, the point that is important for our purposes here is that the specially convened Court of Appeal was unanimous in relation to the section 85 issue and we would submit that the decision of that court should be taken as establishing authoritatively the constitutional law of Victoria in this area.

My learned friend made reference to the fact that provisions, or Acts, other than the Public Prosecutions Act, contain provisions of the kind found in section 49. That, indeed, is so, but that of itself does not make this case less than one that depends upon its own special circumstances and facts. Any other Act must be perused to see what it says and the statement of reasons given by the relevant minister in the House would have to be scrutinised in the case of any other piece of legislation to see if any point could be raised. But, ultimately, as I think one of your Honours said, looking at what is put forward as the statement of reasons, does entail not so much a question of interpretation but either a question of fact or, indeed - and I would adopt this phrase - a value judgment concerning the statement which was made.

Accordingly we would submit that although important, as we concede, the issue under section 85 is, the outcome is not attended with sufficient doubt given the unanimity of the members of the Court of Appeal. Those are our submissions, if the Court pleases.

BRENNAN CJ: Thank you, Mr Solicitor. Mr Finkelstein.

MR FINKELSTEIN: May it please the Court. We can be brief. In the first instance, we adopt the submissions made by the learned Solicitor. We only want to address two short points.

If the Court was to look at section 46(1), in our submission, it is clear that the views of the majority in the Court of Appeal constitute the only reasonable construction of the statute. There is no warrant in the language of the particular subsection, nor in any other provision in the enactment itself, nor in any relevant extrinsic material - we have in mind either the statement made in conformity with section 85 or what appears in Hansard in the second reading speech - that would warrant a reading down of section 46(1) in the manner suggested either by the applicant in this case or, indeed, either member of the Court of Appeal that constituted the dissenting minority.

The language of section 46(1) is broad and is incapable of being cut down in the way suggested. What that requires is a rewriting of the subsection. Whether the consequences that have been produced by the subsection are desirable or not is a political question. The construction question, we submit, is sufficiently clear that there is no reasonable prospect of a contrary view being established. The language of the description of the type of contempt is clearly broad, and - - -

DAWSON J: You are making the same point. You say that the majority was clearly right.

MR FINKELSTEIN: Thank you. Can I turn to section 85? The point on that is straightforward enough as well. The question, whether what occurred in the House constituted reasons, conforming with section 85, depends on, not a question of any statutory construction, but looking at the words spoken and determining whether, in the particular case, they constitute reasons. All of the members of the court said they constituted reasons. Not only that, a reading of the words shows that they constituted reasons. What they may also disclose is that the reasons might not have been satisfactory, they may have been brief, they may unacceptable to some people, but reasons they are nevertheless.

The final point I want to make, both on the construction of section 46 and, if it is relevant, on the construction issues that were raised to determine what section 85 means, was an exercise undertaken by the Court of Appeal in the full knowledge of all relevant principles of construction, knowing how serious or, perhaps, undesirable the consequences of the construction might be, that is to say, the court undertook its exercise, conformably, by adopting recognised, accepted canons of construction and no error is demonstrated in their reasons in that regard. May it please the Court.

BRENNAN CJ: Yes, Mr Beach.

MR BEACH: Can I take the Court to what Justice Phillips said at page 210 of the application book? He said - this is about point 6 of the page:

Secondly, it cannot be gainsaid that the Second Reading Speech makes no reference at all to removing the power of the private citizen to apply for punishment of a person for contempt of court; and to the extent that clause 46(1) was denying that right for the future, then that was a notable omission.

Now, that is uncontested except for something that Justice Tadgell said. Nevertheless, the Court of Appeal said, "Well, because it was a statement which purported to be a statement of reasons, that was sufficient compliance". That finding, together with the Court of Appeal's conclusion on the point, in my submission, does raise a question of what the meaning of the expression "statement of the reasons" means in section 85(5). It is not a question of looking at this case on a particular statement and saying, "Well, was that adequate or not?" We do not quibble with what Justice Cummins said about that. But the broad proposition that all one needed to do was purport to make a statement, whether it talked about this Act, or perhaps it might have talked about another Act, but if it purported to be a statement of reasons for this Act, that that was sufficient and, in my submission, that does raise a question of construction and a question of some significance, not only for this Act, but also for other State Acts.

BRENNAN CJ: The Court will adjourn briefly in order to consider what course it should take.

AT 3.27 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.39 PM:

BRENNAN CJ: The provisions of section 46 of the Public Prosecutions Act (Vic) are of great importance to the administration of justice, especially civil justice, in the State of Victoria. The policy that underlies the section is not a question for this Court, at least in this case, where no attack was made in the courts below on the validity of the section on the ground that its divesting of jurisdiction from Victorian courts is beyond the legislative power of Parliament.

The section is not well drawn and, by its terms and in the context of the Act in which it appears, the drafting has given rise to some divergence of judicial opinion as to its meaning. The drafting of so important a provision clearly requires legislative reconsideration and we note the Solicitor-General's statement that further consideration is being given to it.

Nevertheless, the questions which are raised on this application are questions of statutory construction raising no new point of principle, nor is there sufficient reason to doubt the construction attributed to the section by a majority of the Court of Appeal to warrant a grant of special leave to this Court on the point of construction.

Having regard to the helpful and extensive consideration by the Court of Appeal of the application of section 85(5)(b) of the Constitution Act 1975 (Vic) and the necessity to evaluate the sufficiency of the reasons stated in the Parliament by reference to the particular terms of the impugned legislation, we are satisfied the section 85 point is not attended with sufficient doubt to warrant a grant of special leave. Accordingly, special leave will be refused.

MR GRAHAM: May it please the Court, I seek an order for the cost of this application on behalf of the first respondent.

MR FINKELSTEIN: If the Court pleases, the second respondent has the same application.

BRENNAN CJ: What do you have to say to that, Mr Beach?

MR BEACH: Just two points. First, that these proceedings are criminal proceedings and, second, it was a point of sufficient public importance that this Court look at the question although, ultimately, the Court did find that there was no basis for the grant of special leave; that, on that basis, costs should lie where they fall.

MR GRAHAM: I would seek to be heard in response to one of those points, if the Court pleases.

BRENNAN CJ: Yes.

MR GRAHAM: It is correct, strictly speaking, that the case is a criminal case in the sense that it is concerned with a criminal contempt of court. Nonetheless, it is criminal proceedings of a very special character and, in my understanding, this Court has awarded costs in cases involving contempts of court which have reached it. In my submission, the case falls outside the ordinary run of case where the Court does not grant costs in criminal cases.

BRENNAN CJ: On the other hand, you were not a party to the proceedings for contempt, Mr Solicitor, were you?

MR GRAHAM: We were held on all sides, your Honour, to have a very real interest to the extent that our intervention application was opposed at no stage and was not regarded as being in any way misconceived.

BRENNAN CJ: No. Would it be further correct to state that it was by reason of the drafting of your statute that the problem arose in the first place?

MR GRAHAM: It certainly was the genesis of the problem, your Honour, but perhaps the ingenuity of counsel built upon that. If the Court pleases.

BRENNAN CJ: There will be an order for costs on the part of Mr Finkelstein's client against Mr Beach's client. There will be no other order for costs.

MR GRAHAM: If the Court pleases.

MR BEACH: If the Court pleases.

AT 3.43 PM THE MATTER WAS CONCLUDED