Walter Hammond & Associates Pty Limited v State of New South Wales & Ors S165/1996 [1997] HCATrans 30 (7 February 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S45 of 1996

B e t w e e n -

NGO NGO HA

First Plaintiff

SOKHIENG LIM

Second Plaintiff

and

STATE OF NEW SOUTH WALES

First Defendant

BRUCE BUCHANAN

Second Defendant

R. G. SMITH

Third Defendant

Office of the Registry

Sydney No S165 of 1996

B e t w e e n -

WALTER HAMMOND & ASSOCIATES PTY LIMITED

Plaintiff

and

STATE OF NEW SOUTH WALES

First Defendant

BRUCE BUCHANAN

Second Defendant

I.P. SMITH

Third Defendant

Directions hearing

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 FEBRUARY 1997, AT 11.48 AM

(Continued from 22/10/96)

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: May it please the Court, In the matter of Ha and Lim v State of New South Wales I appear with my learned friend, MR B. GLENNON, for the plaintiffs. (instructed by Doran Roberts & Co) In the other matter, Walter Hammond and Associates v New South Wales, I appear with my learned friend, MR S.J. GAGELER, for the plaintiff. (instructed by Glasheen & Quilty)

MR J.J. SPIGELMAN, QC: May it please the Court, I appear with my learned friend, MR B.W. WALKER, SC, for the defendants in both matters. (instructed by the Crown Solicitor for New South Wales)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth. May it please the Court, I appear with my learned friend, MR H.C. BURMESTER intervening on behalf of the Attorney-General for the Commonwealth. (instructed by the Australian Government Solicitor)

MR W.C.R. BALE, QC, Solicitor-General for the State of Tasmania:

May it please the Court I intervene on behalf of the Attorney-General for the State of Tasmania. (instructed by the Director of Public Prosecutions (Tasmania))

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria. If the Court pleases, I intervene on behalf of the Attorney- General for the State of Victoria. (instructed by the Victorian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I intervene on behalf of the Attorney-General for the State of Western Australia. (instructed by the Crown Solicitor for Western Australia)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: May it please the Court, I intervene on behalf of the Attorney-General for the State of South Australia and the Attorney- General for the Northern Territory. (instructed by the Crown Solicitor for the State of South Australia and the Solicitor for the Northern Territory.

MR R.W. CAMPBELL: I s intervene on behalf of the Attorney-General for the State of Queensland. (instructed by the Crown Solicitor for the State of Queensland)

HIS HONOUR: Mr Jackson, what matters now require further directions, if any?

MR JACKSON: Your Honour, could I just indicate what the current position is in relation to the matter. The matter is, for practical purposes, ready for hearing. We had to have - I think in fact tomorrow, or perhaps today, a reply, if any, to the submissions of the other parties. In one of the cases it has been delivered, I think; in the other it is about to be delivered. They are short documents - - -

HIS HONOUR: Yes, Hammond certainly is here. Ha, I presume, will follow.

MR JACKSON: Yes. In relation to any further material there is a possibility that in the next few days - I think there is no time been provided for it - that we may have some material we wish to put dealing with one aspect of the material that has come on the other side, simply indicating that it is a matter on which there is a difference of expert view. Subject to that, your Honour, it is a question simply of dealing with the case itself.

Your Honour, could I indicate the proposal we would advance in respect of the times, and it is this. The issues in the case, your Honour, broadly speaking are these: we say, in-chief, as it were, two things. The first is that the levels of fees under the Act at the various times are such as to make the Dennis Hotel line of cases inapplicable. If that is incorrect, then we would ask the Court to reconsider those decisions. The argument I would seek to advance in respect of those matters in oral argument I would expect would take a morning.

HIS HONOUR: Yes.

MR JACKSON: Your Honour, the next thing is that in response to our argument New South Wales seeks to reopen the larger question of excise, and that is the point whether the term "excise" covers things beyond, to put it shortly, production; in other words, back to Parton v Milk Board and the cases following that. Now, your Honour, that will obviously take some time and that is supported by the States, the Commonwealth supporting our position in that regard. So that our reply and the Commonwealth's argument on that issue will be really dealing with the longest part of the case. So what I would propose is that in respect of the three days that have been allocated to the case, the two interests as it were each have half the time, and in our case, half the time include the time taken by way of reply.

HIS HONOUR: Yes.

MR JACKSON So we have one and a half days; we can work it ourselves: they have one and a half day; they can work it out themselves.

HIS HONOUR: Yes.

MR JACKSON Could I add, your Honour, two further things. The first is something that has arisen in consequence of what arose this morning in the other case in relation to the applications for leave to intervene. In that case, your Honour, I will be supporting the Court's powers to allow intervention; but the issue that may arise in dealing with that, if the Court is the other way, is that an argument - or the issues seem to be related about the power to legislate to permit intervention. I will be submitting in this case the Parliament has power, the Court has power. If, however, the Court were to take a different view, then it may be that, speaking this time in this case as representing a party, we would seek to take objection to the participation of persons as of right representing the various polities. Your Honour, before taking the point, of course, it is a question - - -

HIS HONOUR: Is that contingent, as it were, on what happens in the course of the argument in the other case?

MR JACKSON Yes, it is, your Honour. Your Honour, it is an issue too on the taking of which I would wish to take some instructions, because - well, we may not wish to take at all, but it may be one that arises from what happens in the other case. So, your Honour, I mention that.

HIS HONOUR: It would be a question for a 78B notice in this case.

MR JACKSON I accept that, your Honour, yes.

HIS HONOUR: Has any been given?

MR JACKSON No, your Honour, no.

HIS HONOUR: Is it anticipated that you might give one?

MR JACKSON Yes.

HIS HONOUR: I see.

MR JACKSON Your Honour, I flag the point now. If we do not give a section 78B notice the issue would, one would expect, go away.

HIS HONOUR: Yes.

MR JACKSON And there we are. But, your Honour, I simply mention it at this point. The second thing, your Honour, is this. In relation to prospective overruling, the submissions on behalf of the defendant in each case do raise that issue of prospective overruling. Your Honour, that is all I wish to say.

HIS HONOUR: Yes, thank you, Mr Jackson. Mr Spigelman.

MR SPIGELMAN: Your Honour, the last point is perhaps the most significant given what the Solicitor for the Commonwealth said earlier this morning; that is the prospective overruling issue in this case has been on the table for some time. I know that we have not given 78B notices but that can be done.

HIS HONOUR: You say there has been no 78B - - -.

MR SPIGELMAN: No, but that can be done, and will be done. However, what the Solicitor for the Commonwealth said in terms of time is of some significance in that respect, because he indicated that that was a separate and substantive issue. As I understand the position, the Court has allocated three days, and I am acting on the assumption that that is not one of the matters that your Honour had to look at whilst your Honour was off the Bench and we would start at the normal time on Tuesday. May I say we believe we will need a day to make our submissions. As I understand the position of the other States, they also collectively would wish a day. So in terms of the one and half day allocation that Mr Jackson proposed we believe that it is a problem in that respect. It is something theoretically capable of being divided, and in the way Mr Jackson suggested we could sort it out amongst ourselves, but we would not wish to do that if the matter can be resolved here.

HIS HONOUR: Yes. Do I understand you to say that a 78B notice in respect of prospective overruling will be given?

MR SPIGELMAN: Yes, your Honour.

HIS HONOUR: I see. Yes, thank you. Mr Solicitor for the Commonwealth.

MR GRIFFITH: Your Honour, our submissions formally support Dennis Hotels, but the gravamen of the substance of the submissions, your Honour, is to argue for the maintenance of the traditional view of excise. In that event, your Honour, my learned friend, Mr Jackson, points out, we do support the same view that he would support as one of his fall-back positions on maintaining the position of excise. There may be some issue of judgment, your Honour, in the position that the onus is on those to reopen excise, your Honour, which has been refused, is a matter - - -

HIS HONOUR: Let me get it correctly. Your view in relation to Dennis Hotels is that it should be maintained?

MR GRIFFITH: We just formally submit that it should be maintained. We do not want to reopen anything, your Honour. So that our submissions on that are formal to the same extent as those States which make a like submission. On excise, your Honour, to some extent, our primary position is merely formal, maintain the existing position of doctrine in this Court. So that our filed submissions, your Honour, and they have run, because we have spaced them in the usual way, your Honour, some three pages over the new limit, and I ask the Court's indulgence for that. We could have cut out the spaces and put it under 20 pages, your Honour, but in fact there is 20 pages printed over 23.

They address the issue, your Honour, of maintaining the status quo on excise. Perhaps the Court has a view of the logic of order in that when one sees the attempts made in the past, your Honour, to reopen excise, there seems to be a heavy onus cast on those to go any further beyond that as to whether it is appropriate for us to go before the States who wish to adopt that course as their principal position for most of them, your Honour.

Your Honour, nonetheless, our submissions, whilst concise, are for the Commonwealth's position on this. So that we would expect, when Mr Jackson says a day and a half in total, that we could find time within that, but there may be a question of order for that. Your Honour, this new aspect of prospective - - -

HIS HONOUR: The first question, I would have thought, after Mr Jackson has disposed of the issue of whether the level of fees makes this case inconsistent with Dennis Hotels, is that there must be an application for leave to reopen Dennis Hotels.

MR GRIFFITH: Yes, your Honour.

HIS HONOUR: And that might be the first and major question for consideration.

MR GRIFFITH: We are against Mr Jackson on that, but we will just make formal submissions, your Honour. Your Honour, we see it as a principal application. The States might be wrong, but their position is to reopen excise and apparently if excise is reopened and a narrower view taken, your Honour, then Dennis Hotels issues falls by the wayside. We understand that is the substantive position of the States, with perhaps the exception of Tasmania.

HIS HONOUR: Yes.

MR GRIFFITH: So, your Honour, order might be an ambulatory thing in this matter but, your Honour, we will not be detaining the Court in the Commonwealth's submissions on Dennis Hotels aspects. So our time allocation, your Honour, will be debated to the issue of maintaining existing doctrine on excise. Your Honour, prospective overruling - I cannot seem to get away from it today, your Honour - presents the same problems, your Honour. It is all very well for my learned friend to say, "Well, we'll now put in a 78B, your Honour". Matters have gone thus far with written submissions and the matter being set down for the last ordering of issues, and the more one reflects on it, your Honour, as I observed earlier, the more it seems prospective overruling is a matter of great substance in itself.

HIS HONOUR: And a matter of some interest to the States as well as to the Commonwealth.

MR GRIFFITH: Of course, your Honour, yes, but we do feel that this is a one and a half day case each side, three days, on the excise and Dennis Hotels issues and, your Honour, to constitute at this stage when the written submissions have been long in to be, in effect, the case on prospective overruling, would seem to be re- engineering the case in our submission.

If the members of the Court thought that truly was an issue to be addressed we would say, again, your Honour, it would seem to me the same allocation of time and full exchange of written submissions on that issue, to give the Court the advantage of the arguments which certainly are available to be put on that issue.

HIS HONOUR: Yes.

MR GRIFFITH: It is not something, with respect, to be dealt with en passant merely because in the event that certain views taken by the Court.....a convenient fiscal result is obtained for the States. We would say, your Honour, if the Court got that far and saw prospective overruling as an issue then it would be appropriate for the matter to be listed after further written submissions.

HIS HONOUR: Yes, thank you, Mr Solicitor. Mr Solicitor for Tasmania.

MR BALE: May it please, your Honour, three issues I would seek to touch upon. The first is the order in which submissions should be taken. I can indicate that both the defendant and the intervening States would be content with the proposition advanced by the learned Solicitor-General for the Commonwealth that they should follow him. That seems to be appropriate in view of the argument that he is advancing.

HIS HONOUR: That they should follow the Solicitor for the Commonwealth?

MR BALE: Yes. I understood that in discussions that we had had earlier that that was to be the proposal, and I thought there had been a slip of the tongue. We would contend that that would be appropriate then, that the Solicitor-General for the Commonwealth ought to follow the plaintiffs, then followed by the defendant and the intervening States, given the essential nature of the argument of the Solicitor- General for the Commonwealth, although at the end of the day he would support the result which the respondents contend for, and the States contend for. His reasons for doing so and his opposition to - - -

HIS HONOUR: Take it step by step: the first question is does Dennis Hotels apply to this case? It is only if the answer is given to that question affirmatively that the question of the status of Dennis Hotels arises.

MR BALE: Yes.

HIS HONOUR: At that time there has to be an application for leave to reopen Dennis Hotels. Mr Jackson has indicated that he would make such an application. That is not supported by the Commonwealth. Is it supported by Tasmania?

MR BALE: We are saying Dennis Hotels should not be reopened.

HIS HONOUR: Should not be reopened.

MR BALE: And that is a common position of the States. The States are contending that the Parton line of cases should be reopened. If they are - - -

HIS HONOUR: Just leave it with Dennis Hotels for the moment. That seems to be the critical one.

MR BALE: We are contending that Dennis should not be reopened.

HIS HONOUR: Yes. That is the view of all the States?

MR BALE: Yes.

HIS HONOUR: All the intervening States?

MR BALE: Yes.

HIS HONOUR: Yes, I follow that. If Dennis Hotels were to be reopened, what then is the view of the intervening States?

MR BALE: If Dennis Hotels is reopened, the States would argue that the same result should be reproduced. In other words, if it is reviewed we would be arguing that its decision was correct and applies in this case.

HIS HONOUR: Dennis Hotels is correct?

MR BALE: Yes, and applies to the facts of this case.

HIS HONOUR: If it was correct there would be no need to reopen it.

MR BALE: If it is being reopened I suppose the argument is whether or not it is correct.

HIS HONOUR: Yes. I see. Is there any alternative to Dennis Hotels that Tasmania would advance?

MR BALE: No, your Honour, our argument would be, and we are simply supporting the defendant and the other interveners in that, that the issue really is to reopen Parton, and that the proper test of what is an excise excludes an application of a tax beyond production.

HIS HONOUR: Yes, thank you.

MR BALE: Your Honour, so far as the timing is concerned, I was not at the original directions hearing before your Honour but I am informed by the learned Solicitor-General for South Australia that the timing initially proposed for the case was two days and he at that time indicated that the intervening States would want a full day because of the nature of the arguments to be advanced. Accordingly, an extra day was added so that the estimated time became three days. That position pertains, that is the States have divided up the submissions to be put to the Court to avoid repetition.

There is a deal of material on the historical meaning of "excise" and the historical documents that needs to be traversed because some of their Honours will not have heard those submissions previously. It is estimated that about half a day will be taken by South Australia and Western Australia in dealing with the historical issues and between us we would be content that we can divide up the balance of a full day to ensure that we are able to put all the submissions which the interveners would wish to put in the space of a full day.

That assumes of course that we are not going to have to mount argument which had not been foreseen in relation to the validity of section 78A of the Judiciary Act. If that were to become an issue in these proceedings, and I know it has only been foreshadowed and my learned friend, Mr Jackson, has not committed on that at this point, but if it were to become an issue I would imagine that some greater time would be sought because that would be an issue that the States would regard as one of very considerable importance and I would imagine that some quite extensive argument might need to be prepared on that issue.

Finally, your Honour, so far as prospective overruling is concerned, I note that the arguments which the interveners would support are fairly comprehensively set out in the written submission that has been filed on behalf of the defendant and we would wish to put nothing additional to that which appears in the written arguments which have been filed. When that is appropriately dealt with of course is a matter for the Court and I have no submissions about that. May it please your Honour.

HIS HONOUR: Thank you, Mr Solicitor. Mr Solicitor for Victoria.

MR GRAHAM: If the Court pleases, if my learned friend, Mr Jackson's first line of attack is that the fee in question is so high that it cannot be fitted into the Dennis Hotels doctrine and that Dennis should be distinguished accordingly, it would seem to us that the logical first answer to that proposition is that the fee is not an excise because, as we would be wishing to submit, Parton and the cases which have followed it were wrongly decided. The fee is a tax not on production and its quantum does not make any difference to that argument. So what we are saying is that if the question of the correctness of Dennis is considered first, it might distract attention from what is logically the first answer to the primary attack of the plaintiffs in both cases.

HIS HONOUR: I do not quite follow that, Mr Solicitor. If the proposition advanced by Mr Jackson is that a fee might be exacted upon a particular transaction on the footing that it is a licence fee for the privilege of carrying on business, how is it that if the argument that this is not such a fee because of its size involves anything other than whether that is an appropriate test under the Dennis Hotels principle?

MR GRAHAM: Your Honour, that may be a sufficient answer but a further answer would be that the fee is not to be characterised as a duty of excise nonetheless, despite its quantum, because it is no more than a tax levied on a sale. But that argument cannot be sustained in the face of Parton's Case, and the cases which have followed it, including the second branch of Dennis Hotels, itself.

HIS HONOUR: So therefore you wish to challenge those cases?

MR GRAHAM: Yes, we do, your Honour. It is really a question of what is the most convenient sequence for argument to take but if my learned friend, Mr Jackson, wishes to challenge Dennis, our response to that is that we would wish to challenge Parton but we would also wish to challenge Parton in order to support the validity of the fee notwithstanding the very high level at which it is set.

HIS HONOUR: Then am I right in saying that you would not wish to maintain the status quo?

MR GRAHAM: Our starting point is to support Dennis and to say that quantum makes no difference and that, I believe, is the position that New South Wales adopts. If I am wrong in that then perhaps that should be made clear.

HIS HONOUR: What should be made clear is whether or not the States will be asking for leave to reopen any of the authorities in this Court, at first instance.

MR GRAHAM: Our position is yes, but it may have to be qualified by saying "if the need arises", because if the validity of the fee can be supported on the basis of Dennis, notwithstanding its quantum, then that is the end of the matter.

HIS HONOUR: Yes.

MR GRAHAM: Again, there is a dilemma, your Honour.

HIS HONOUR: The situation is this, is it not, Mr Jackson says, "this cannot be supported having regard to the size of the fee in the light of Dennis. If I am wrong in that, then reconsider Dennis." And you say that if that proposition is wrong, then by all means reconsider Dennis and, indeed reconsider Parton.

MR GRAHAM: Yes.

HIS HONOUR: Is that right?

MR GRAHAM: That is right, your Honour. If I may say so, with respect, it is - - -

HIS HONOUR: You do not get to that stage at first. Your first line is maintain Dennis and find that this is a fee which is within the four corners of Dennis.

MR GRAHAM: Yes, logically, that is the first matter of the case to be canvassed because it does not involve reopening anything.

HIS HONOUR: Yes, that is right.

MR GRAHAM: It simply involves a consideration of the quantum of the fee.

HIS HONOUR: It also raises, as the first issue after that point is disposed of, as to whether there should be leave to reopen anything.

MR GRAHAM: Yes, but it may not be convenient, your Honour, given the fact that those are two parallel issues, to try to split the question of reopening anything from the consideration of the case generally. We would submit that it is better, as happened, I recollect, in Capital Duplicators, for the argument simply to take its course whilst regard is properly being had to the fact that leave to reopen would be required in relation to certain aspects of the argument.

Your Honour, we would support the view that there be a period of time allocated to the intervening States, at least, to be divided up amongst them as counsel may determine. The question then arises whether the Commonwealth should be included in that block of time or not because its position is not identical. It may then simply be a question of whether the Commonwealth should go immediately after the plaintiffs or whether the Commonwealth should go first amongst the interveners. I do not have a submission on that, your Honour. Each has its advantages and disadvantages. If the Court pleases.

HIS HONOUR: Thank you, Mr Solicitor.

MR SPIGELMAN: Your Honour, could I intervene at this point because Mr Graham did say something about our position.

HIS HONOUR: Yes.

MR SPIGELMAN: I would not want it thought that our position was as he put it. We are quite different to his position. Our primary submission is that leave should be granted to reopen Parton and that it is wrong. If that be right, Dennis Hotels is irrelevant. This is a considerable change from the position taken by New South Wales in the time of Capital Duplicators when it was more like the position and only look at other things if Dennis Hotels is being reopened. I say that that is quite clear from paragraph 1 of our written submission. We primarily put our weight on that as our position, so in that respect we are different.

HIS HONOUR: Yes, thank you, Mr Solicitor. Mr Solicitor for Western Australia.

MR MEADOWS: Your Honour, our position is that we would seek leave to reopen Parton, but our position is that if we are unsuccessful in our argument there, the Dennis Hotels exception should still be maintained.

HIS HONOUR: That is your second line of defence, as it were?

MR MEADOWS: Yes, your Honour.

HIS HONOUR: Your first approach is the same as Mr Spigelman's?

MR MEADOWS: Quite so, your Honour.

HIS HONOUR: Yes, thank you. Mr Solicitor for South Australia.

MR SELWAY: Your Honour, our approach is the same as Western Australia's and New South Wales. There is perhaps one qualification, not to our approach, but to how the Court might deal with it. We clearly require leave to reopen to put that argument, and the Court could take the view that if Dennis Hotels is applicable in its terms to this case so that the tax is valid, then the occasion for reopening and reconsidering Parton does not apply. But it only does not apply in the circumstance where, if you like, the plaintiffs lose, because Dennis is applicable on any event. So, it may arise in that context, but the argument that I am instructed to put is that Parton is wrongly decided and, for that reason, Dennis Hotels is not relevant to the case.

One other matter I should point out. At the last directions hearing, your Honour did ask whether the materials could be provided on diskette or on computer format. South Australia has produced, I think, five volumes of materials. I can say that those volumes are not just South Australia's, other parties positions are also in there. We have made some attempt to put those materials in electronic format and have been unsuccessful.

HIS HONOUR: I was going to say that I think perhaps events may have overtaken us a little. Most apposite authorities are, of course, Commonwealth Law Reports, and I understand that a CD ROM is available, or is about to be available, which has the Commonwealth Law Reports on it, with pagination, and that might solve all our problems.

MR SELWAY: Yes, your Honour. The other thing I - - -

BRENNAN CJ: It is only a question of whether or not it is necessary to have some source from which you can download massive areas of quotations.

MR SELWAY: What we have attempted to do in our written submissions is - at least where we have referred to the written documents - we have put in the written submission the extract, and we will provide the Court with a computer disk of the written submissions. I am not suggesting the Court may want the substance of them, but only for the extracts. If it please your Honour.

HIS HONOUR: Yes, thank you, Mr Solicitor. Mr Campbell.

MR CAMPBELL: Your Honour, similarly to New South Wales, South Australia and Western Australia, Queensland will be arguing that Parton should, in fact, be reopened and reconsidered, and, again, the fall-back position is that should the Court not accept the primary submission that the Dennis Hotels line of authority should be upheld. If it please the Court.

HIS HONOUR: Yes, thank you.

MR GRAHAM: Your Honour, I wonder if I could clarify something that seems to have emerged from what was said by my learned friends to my right. What I was endeavouring to do, when I addressed your Honour a moment ago, was to analyse the order in which I perceived the issues that might arise in the course of argument and how they might fall to be considered. But I do not wish it to be thought that we do not join in the challenge to Parton's Case, because we do and we will be seeking, along with our colleagues, leave to reopen it.

What I was trying to indicate to your Honour was, it was not altogether clear whether that occasion would necessarily arise in this case; it really depended on how the issues unfolded in the course of argument, and what I endeavoured to say was that my learned friend, Mr Jackson's primary argument might well produce the result that the Parton question arose at a very early stage. We do join in the same position as the other States who have appeared - - -

HIS HONOUR: So, you do not contend for the status quo as your first position?

MR GRAHAM: No, we do not, your Honour.

HIS HONOUR: I see, yes, thank you.

MR GRAHAM: If your Honour pleases.

HIS HONOUR: Perhaps I could ask Mr Bale. Are you the only one who is contending for the status quo, Mr Solicitor?

MR BALE: Your Honour, we are contending for the status quo, only viz-a-viz Dennis Hotels, as indicated in the outline which is before you, and as I have tried to indicate earlier on, but obviously had not made myself sufficiently clear. We support the New South Wales and the States interveners in relation to Parton. We are going to make no submissions in relation to that, however; we simply adopt the submissions that will have been made by New South Wales.

HIS HONOUR: I appreciate you might adopt them, but are they your primary submissions?

MR BALE: Yes, and then we will be arguing in any event that if we are overruled on Parton then the status quo in relation to the Dennis line should be maintained. May it please.

HIS HONOUR: Yes. I think Mr Solicitor for the Commonwealth might have something.

MR GRIFFITH: Your Honour, could I re-identify the Commonwealth as the only one supporting the status quo, but I perhaps say that in that way, your Honour, which makes it clear whatever happens it looks like logically we should go last because there is an onus on those who attack.

HIS HONOUR: Well, that is how it seemed to be increasingly appearing, Mr Solicitor.

MR GRIFFITH: Yes, your Honour.

HIS HONOUR: Mr Jackson.

MR JACKSON: Your Honour, may I say two things. The first is that what has just been said by my learned friend, the Solicitor- General for the Commonwealth, has quite a deal of force in it because the burden in seeking to reopen seems to be on those who seek to change the major premise as distinct from those who wish to nip off a fraction of it, if I could mix the metaphor. So it may be a question of the order, but the second thing is in relation to time. It is obvious from what has been said that if leave to reopen is granted in relation to the larger area then the case is one which involves significant arguments on both sides.

We would not want to be squeezed in time, nor do we want to squeeze the other sides and other people seeking to intervene, and that seems to indicate that an appropriate and fair way of doing it is to say what I said at the start, half each, and between ourselves and the Solicitor-General for the Commonwealth a day and a half, the others tailor their cases to a day and a half.

HIS HONOUR: Is there any reason, Mr Jackson, why your argument in-chief could not be limited in the first instance to the question of nipping off the little bit on top?

MR JACKSON: That is what we had intended, your Honour.

HIS HONOUR: That is, whether or not Dennis Hotels covers this case.

MR JACKSON: Whether it applies and the next stage to which we were intending to go was, if it did, whether we would have leave to reopen that case.

HIS HONOUR: Yes. I am just wondering whether that part of your argument would come better after the defendant and the other parties had been heard, even if you flag it, as it were, in the first part of your argument.

MR JACKSON: Yes, your Honour. We are perfectly happy to do it that way and there may well be something in that because, if I may say so with respect, the question of reopening will have been fairly fully agitated by that point.

HIS HONOUR: And it will also have gone back to the question of Parton, in the context of which Dennis can then be considered.

MR JACKSON: Yes.

HIS HONOUR: Yes, thank you, Mr Jackson. Mr Jackson, perhaps you could give me an indication as to whether you have any views as to the submissions that might be made by you on the question of interveners, and I know this must be put contingently, but let us assume that in the previous case the question of the jurisdiction to admit interveners is reserved by the Court, what then would be your intentions in relation to the status of the Solicitors for the States and the Commonwealth intervening in this case?

MR JACKSON: Your Honour, I speak without instructions on the issue, but my inclination would be, and depending on the undertakings on review of the situation, to raise the point subject to instructions. Now, your Honour, I would be inclined before doing that to have written submissions given at the same time as the point was raised. What I mean by that, your Honour, those submissions, of course, would be contingent on the submissions that had been made in the other case and the result that might follow from that and would endeavour to give them at the same time as the submissions the other way in the other case.

HIS HONOUR: Yes.

MR JACKSON: Which I think, your Honour - I have just forgotten the date, but it was 14 days away in effect.

HIS HONOUR: Yes, thank you, Mr Jackson. It seems to me that there is every reason why at least at this stage the matter should not continue with its present listing for the three days that have been allocated to it with Mr Jackson commencing, followed by New South Wales, followed by the State interveners, followed by the Commonwealth, with a reply then by Mr Jackson at the end. Now, as at present advised, I see no reason why the allocation of a day and a half to each side on that basis would not be an equitable distribution of time. The question is whether - I take it that as between you and the Solicitor for the Commonwealth that arrangement is acceptable. Is that correct, Mr Jackson?

MR JACKSON: Yes, your Honour.

HIS HONOUR: Mr Solicitor? What about on the other side of the Bar table?

MR SPIGELMAN: We have made our submissions on that, your Honour I think we have indicated we would like two days. If your Honour's view is one and a half days between us we will have to allocate it amongst us.

HIS HONOUR: But if there is the time that is allocated as between you, do you wish me to allocate the times more specifically or may I leave it to discussion amongst counsel?

MR SPIGELMAN: Would your Honour leave it to discussion?

HIS HONOUR: Leave it to discussion amongst counsel.

MR SPIGELMAN: Yes, your Honour, leave it to discussion, your Honour.

HIS HONOUR: I appreciate that the issues that could arise in this case might make that timetable inappropriate, but I do not think that it is desirable at this stage to alter the timetable but rather to see how the issues develop both in relation to interveners and also with respect to prospective overruling. I take it that 78B notices will be given as required in relation to both of those issues. If there should be any difficulty about the more specific allocation of time or, indeed, if agreement has been reached, it would be desirable to inform the Registrar of that agreement, or of that disagreement, by the Friday of the week before the case is listed for hearing. If it should be necessary then to have some further directions hearing for the purpose of allocating time that can be done, but otherwise the times will be as agreed as between the parties and notified to the Registrar during those three days. Are there any other matters?

MR GRIFFITH: Your Honour, it is just after the press reports argument earlier in the Court this week I am a bit anxious in that my phone and fax number does not appear after my name on our filed written submissions as is required by the directions. So could your Honour either dispense with that requirement or give us leave to add that?

HIS HONOUR: That is your phone and fax number in your chambers, Mr Solicitor?

MR GRIFFITH: Yes, your Honour. It is just that paragraph 9, your Honour, requires that and I overlooked it, I am afraid.

HIS HONOUR: And that presents a difficulty, does it?

MR GRIFFITH: No, your Honour, it is just that it is non- compliance so I wish not to get into a position of non-compliance.

HIS HONOUR: I see, yes.

MR GRIFFITH: The newspaper reports have made us anxious, your Honour.

HIS HONOUR: Yes, very well.

MR GRIFFITH: Perhaps it was exaggeration in the reporting, but I thought I should point out that oversight, your Honour.

HIS HONOUR: Thank you, Mr Solicitor.

MR JACKSON: Would your Honour certify for the attendance of counsel. It may not mean much to the other sides but it just means a little difference.

HIS HONOUR: So far as it is necessary, certification is made. Thank you, gentlemen. The Court will adjourn generally.

AT 12.30 PM THE MATTER WAS CONCLUDED