Buckland v The Queen P15/1997 [1997] HCATrans 340 (27 October 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S45 of 1997

B e t w e e n -

MICHAEL REGINALD BASS and EVELYN MAUDE BASS

Applicants

and

PERMANENT TRUSTEE COMPANY LIMITED

First Respondent

FANMAC LIMITED

Second Respondent

STATE OF NEW SOUTH WALES

Third Respondent

PERMANENT CUSTODIANS LIMITED

Fourth Respondent

LIVERPOOL-INGLEBURN CO-OPERATIVE HOUSING SOCIETY

Fifth Respondent

MARKHAM, GEIKIE & RUMORE

Sixth Respondent

CO-OPERATIVE HOUSING SOCIETIES ASSOCIATION OF NEW SOUTH WALES LIMITED

Seventh Respondent

THE ESTATE OF ANTHONY MARKHAM

Eighth Respondent

Office of the Registry

Sydney No S46 of 1997

B e t w e e n -

PAULA CONCA and MARCELO ALBERTO CONCA

Applicants

and

PERMANENT TRUSTEE COMPANY LIMITED

First Respondent

FANMAC LIMITED

Second Respondent

STATE OF NEW SOUTH WALES

Third Respondent

PERMANENT CUSTODIANS LIMITED

Fourth Respondent

MERRYLANDS CO-OPERATIVE HOUSING SOCIETY

Fifth Respondent

LIVERPOOL-INGLEBURN CO-OPERATIVE HOUSING SOCIETY

Sixth Respondent

CO-OPERATIVE HOUSING SOCIETIES ASSOCIATION OF NEW SOUTH WALES LIMITED

Seventh Respondent

KEN LONG

Eighth Respondent

Office of the Registry

Sydney No S47 of 1997

B e t w e e n -

BESSIE MAVIS WOODLANDS and LILIAN MARY BALLARD

Applicants

and

PERMANENT TRUSTEE COMPANY LIMITED

First Respondent

FANMAC LIMITED

Second Respondent

STATE OF NEW SOUTH WALES

Third Respondent

PERMANENT CUSTODIANS LIMITED

Fourth Respondent

FAIRDALE CO-OPERATIVE HOUSING SOCIETY

Fifth Respondent

CO-OPERATIVE HOUSING SOCIETIES ASSOCIATION OF NEW SOUTH WALES LIMITED

Sixth Respondent

Directions Hearing

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 27 OCTOBER 1997, AT 9.35 AM

Copyright in the High Court of Australia

______________________

MR J. BASTEN, QC: I appear for the applicants in each of those proceedings, if your Honour pleases. (instructed by the Public Interest Advocacy Centre)

MR B.A.J. COLES, QC: I appear, if your Honour pleases, with DR C.J. BIRCH, for the first and fourth respondents. (instructed by Church & Grace)

MR T.F. BATHURST, QC: If the Court pleases, I appear with my learned friend, MR I.M. JACKMAN, for the second respondent. (instructed by Mallesons Stephen)

MR A.J.L. BANNON, SC: If it please the Court, I appear for the third respondent. (instructed by the State Crown Solicitor's Office)

MR A. LEVIN: I appear for the Co-Operative Housing Societies named. (of Church & Grace)

HIS HONOUR: And there is no appearance, I gather, for the sixth and eighth respondents. Now, Mr Basten, what is the state of affairs so far as the facts of this case are concerned?

MR BASTEN: Your Honour, in so far as the material has now been set out in the books, it contains a lot of documentary material which, in our view, is largely background material. The Federal Court answered the various questions upon the basis of that material but made no specific findings of fact as such, and that was the basis upon which the matter is before the High Court, I think.

HIS HONOUR: It is the basis on which it is before the High Court but I notice that at the end of the order that was made by Justice Dawson it was said:

the Court will require those questions to be answered as questions of law without being required to determine, as a matter of controversy, factual issues.

MR BASTEN: Yes, that is so.

HIS HONOUR: Well now, the question is how can those questions be answered having regard to that condition that is imposed?

MR BASTEN: Your Honour, the matters which are concerned with the application of the Trade Practices Act do not require, in our submission, any particular factual circumstances. The question about whether, in terms of the first limb of Bradken, the Trade Practices Act applies to the State is an issue of pure law. Obviously - - -

HIS HONOUR: It depends upon what the State is alleged to have done, does it not?

MR BASTEN: Yes, that is so, and there is no particular question about that, that the HomeFund scheme itself was a scheme whereby assistance was granted to people who would not normally have been able to obtain commercial mortgages. The State - - -

HIS HONOUR: Whatever the "HomeFund scheme" means.

MR BASTEN: That is so. The purpose of putting certain material in was to elucidate that general background. The mortgages themselves are there. The financing scheme is contained in documents which changed slightly over time but not significantly and the role of the State in relation to the preparation of those documents is not significantly in doubt.

HIS HONOUR: Let me understand this precisely, because I notice that at the end of your submissions in the special leave application you were putting the proposition that this was really a demurrer point and that was a proposition which Mr Gyles rebutted.

MR BASTEN: Yes, he did.

HIS HONOUR: Now, what is the state of play at the moment. Is it a demurrer point or it is not?

MR BASTEN: It is not technically a demurrer point, no, your Honour. It was a matter which was dealt with on the pleadings but there was a volume of material which was provided to the Court to elucidate the factual background against which the matters had been pleaded and the Court itself said that in answering the questions it did not make findings of fact and it was for that reason that the questions were qualified in two of the answers.

HIS HONOUR: Considering question No 1 first of all, what is the fact upon which the ruling of this Court is now sought, and where does one find it?

MR BASTEN: In order to do that, I would need to take your Honour, I think, to the matters which are set out in the pleadings. I am sorry, I was not quite sure what your Honour was intending to deal with this morning so I do not have a straightforward - - -

HIS HONOUR: What I want to deal with is whether or not this case is suitable for the High Court's consideration. I do not understand at the moment, with the conflict at the Bar table that is represented in the special leave application, how the facts are going to be resolved and the way in which the Court will be able to deal with it.

MR BASTEN: Yes. Well, I had not appreciated that that was - - -

HIS HONOUR: I thought that either the parties would have to agree on some statement of facts which does not appear anywhere in the appeal books. There are seven volumes of material which the Court will not go through in order to answer these questions. If the condition which is imposed on the special leave application cannot be met, then consideration has to be given to whether or not special leave should be revoked.

MR BASTEN: I understand the way your Honour puts it. I had not appreciated that that was the way your Honour was going to ask me and I did not come here prepared to answer that specific question. In terms of the material which we thought was appropriate to put before the Court, it was very much more limited than that and it was at the request of others that much of the material was included, so I understand your Honour's concern. Whether it is possible to now sit down and prepare an agreed statement of facts is not a question which I have sought to address in the recent past.

HIS HONOUR: Yes. As I understand it, you are prepared to proceed on the statement of claim with reference to documents that are referred to in the statement of claim in order to ascertain the text of those documents.

MR BASTEN: That is so.

HIS HONOUR: Now, I am speaking only of question 1 at this stage, is that right?

MR BASTEN: That is so, your Honour.

HIS HONOUR: In relation to question 2, what is the conduct of those who are not the State which is said to be affected by the alleged immunity?

MR BASTEN: Again, we would be willing to deal with it on the same basis, your Honour. The Federal Court, I think, dealt with it on the same basis in a particular passage in the judgment. What it went on to say was that it would not necessarily be prepared to strike the statement of claim out entirely on the basis that there was an adverse finding against the applicants because they thought there might be aspects of the claim which were maintainable despite that finding. That is a matter which would not trouble this Court.

HIS HONOUR: That seems to me precisely to raise the question of what matters might be said to be within the immunity and what might not. In other words, matters that are pleaded in the statement of claim, some of them, on the view of the Full Court of the Federal Court, might attract the immunity; some might not.

MR BASTEN: I think, with respect, the Federal Court took a slightly stronger more robust view than that. They thought they all attracted the immunity but appreciated that, given the answer to the question they had now given, it might be possible for the applicants to replead a claim so that the matters which fell outside the scope of the HomeFund scheme which might be seen, as it were, to be conduct undertaken by those parties on their own initiative and which therefore might be subject to the Trade Practices Act would be still open to the applicants.

HIS HONOUR: Take a practical example: there are misrepresentations pleaded. Now, say one of the misrepresentations is one which obviously is made on the part of the representor alone, for example, "I will do something by such-and-such a time", but it is a misrepresentation which is made in the course of promoting the home loan scheme, does that fall within or without the immunity?

MR BASTEN: We would understand that it would fall within at the moment because all of the conduct which we have pleaded is conduct which is conduct either of the State or of one of the other respondents pursuant to the scheme which was established by the State. I do not think that we have pleaded, in fact, and I think the Full Court accepted that we had not adequately pleaded - we think not at all - facts which would fall outside the scope of that test.

HIS HONOUR: In other words, you would be prepared to proceed on the statement of claim alone?

MR BASTEN: Yes, your Honour.

HIS HONOUR: In relation to question 2.

MR BASTEN: Yes, your Honour.

HIS HONOUR: And anything that is capable of falling within the statement of claim, as presently pleaded, could be dealt with on that footing.

MR BASTEN: We would say yes, your Honour.

HIS HONOUR: And you would not be seeking to distinguish, in point of principle, those matters which would fall within the immunity, if immunity be found, and those which would not?

MR BASTEN: Well, your Honour says "in point of principle": the immunity as defined by the law obviously has limits to it. Simply because a corporation enters into an arrangement, be it joint venture or agency, with the State, does not mean that things which have nothing to do with that are outside - - -

HIS HONOUR: That I can understand but applying it to this case, I did not notice anything in your submissions on the special leave application which propounded that test or criterion for distinguishing. In other words, if the Court is to deal with question 2, it could deal with it on the basis of the statement of claim only on the assumption that if question 1 were answered adversely to you, question 2 could be answered only in terms of principle.

MR BASTEN: Yes.

HIS HONOUR: But that principle has not yet been adumbrated. In other words, we can find the facts. This case can be approached so far as question 2 is concerned in one of two ways: find the facts and then say, "That fact falls within; that fact falls without". Alternatively, do not find the facts but establish the principle which will distinguish between those which do and those which do not. At the moment, we have not either.

MR BASTEN: We would be content with the latter basis. I may not have made that expressly clear in the special leave argument, your Honour, but that was certainly my intention in describing it, as it were, as a demurrer point. It was an inaccurate, as Mr Gyles pointed out, representation of the technical means by which the matter came before the Court. That was the basis, however, on which we were dealing with it.

HIS HONOUR: I suppose it is clear that, for my part, I am very concerned about the way in which the proceedings did come before the Full Federal Court.

MR BASTEN: I can understand that concern, your Honour.

HIS HONOUR: Perhaps I should hear from your opponents to see what their view is in relation to the way in which this should proceed.

MR BASTEN: If your Honour pleases.

HIS HONOUR: I will probably have to call on you again, Mr Basten.

MR BASTEN: Yes, certainly.

HIS HONOUR: Mr Coles.

MR COLES: Your Honour, we are, firstly, content to adopt any course that avoids the necessity to look at seven volumes of printed material and therefore have no objection to the course proposed in relation to dealing with the matter relevantly on the basis of the statement of claim, but there are remaining concerns on our part, your Honour. Those really focus on the utility and, indeed, availability to the appellant of certain of the grounds of appeal. If your Honour looks at page 168, for example, it would seem to us that on that basis grounds of appeal, certainly 2.2(2) and the whole of 2.3 will be matters which would be very difficult to deal with as such and would, indeed, be matters which would not directly illumine the answers to the respective questions which are posed on the following page.

I am looking now at 2.2(2): a question whether something directly interferes, whether an interest of the Crown is a legitimate one or not, we would see as raising problems of fact which we would doubt would even be readily resolved by reference to the substantial volume of printed material but would be wholly inappropriate to answer or to deal with, in our respectful submission, on the basis - - -

HIS HONOUR: Well then, how can the matter proceed on that argument, Mr Coles?

MR COLES: We put, your Honour, that your Honours would, in effect, strike out subparagraph (2) at least of paragraph 2.2 and, indeed, the whole of 2.3. The matter, I suppose, is highlighted, if you look at 2.3(2) where one is invited to look at:

circumstances.....an interlocking network of contractual documentation -

and so forth. We, of course, accept the essential premise that the mortgages to which the first and fourth respondents are generally parties are part of this interlocking network but we would see it as irrelevant to the answering of the proposed questions or, indeed, the questions which the Full Court dealt with, to inquire into the circumstances and it seems to be an inquiry into the circumstances which ground 2.2(2) really directs attention towards.

HIS HONOUR: The Court can scarcely strike out a ground of appeal which a party seeks to argue if the formation of the ground of appeal lends itself to the development of legal argument. Those grounds may be impossible to pursue without reference to the seven volumes but it is not possible for the Court to strike them out, I should not have thought.

MR COLES: We see the existence of those grounds anyway, your Honour, for so long as they remain as an impediment to an attenuated process that involves looking at simply the pleadings but, on the other hand, we see the printed material itself does not all that readily lend itself to the resolution of those matters in any event. As I say, we mention that, your Honour, in the context of dealing with our response to Mr Basten's statement of his contentment to deal with the matter, in effect, on the pleadings.

HIS HONOUR: Let me understand it precisely from your point of view. You are saying that you would be prepared to proceed on the amended statement of claim alone but you would find difficulty in meeting arguments couched in the terms that are there?

MR COLES: That is shortly our position, your Honour.

HIS HONOUR: Is that right?

MR COLES: Yes.

HIS HONOUR: Mr Bathurst.

MR BATHURST: We submitted in the Federal Court, to the extent that FANMAC was involved in the scheme, it was acting as agent for the New South Wales Government in putting into practice the policies the government had for providing housing for persons who ultimately borrowed in respect of the scheme. We said in carrying out the actions complained of FANMAC was acting within the scope of its actual authority and the Full Court accepted that submission.

At the leave application, as your Honour will have seen, we opposed the granting of special leave on the grounds, among others, that it raised factual issues which it was inappropriate for the Court certainly to deal with at this stage before this Court had the benefit of factual findings either at trial or at least by the Full Court, the Full Court not having made such factual findings.

Our position is this, leave having been granted: that if the appellant is prepared to accept that in doing each of the matters alleged against the second respondent in the statement of claim it was acting as agent for the government within the scope of the actual authority conferred upon it, it may be possible, we accept, to conduct the appeal without reference to any of the factual material. The utility of that course is, we would submit with respect - this is probably not the appropriate place to submit it - doubtful because no doubt it would be open to the appellant in due course to depart from those assumptions if it amended its pleadings, as it was invited to do so by the Federal Court.

If those contentions are not accepted, the relationship between FANMAC and the government in respect of each of the matters alleged in the statement of claim would seem to us, with respect, to be an issue and we remain of the view it is not appropriate for this Court to deal with it and we cannot give an assurance that we will not be making reference during the course of our submissions to factual material which goes to support what we say the relationship between the parties is.

HIS HONOUR: That is the agency of FANMAC as agent for the government.

MR BATHURST: That is right, because the nature of that, we say with respect, is critical to the determination of whether the immunity exists. We are made liable in an odd series of ways. We are said to be made liable for what we did as agent of the government in putting together the scheme, as it were. We are then said to be liable for those persons whom we appointed to market the scheme, the Co-operative Societies. FANMAC had no direct contact with any borrowers. That is the way the liability is said to arise.

HIS HONOUR: So, you are vicariously liable for some?

MR BATHURST: Yes.

HIS HONOUR: And you are directly liable for putting together the scheme.

MR BATHURST: For putting together the scheme, yes. That is loosely how. Having put it that way, your Honour can see, we would submit with respect, that the question of the immunity does involve a consideration of those factual questions.

HIS HONOUR: What about the relationship between yourself and those whom you appointed? Is that a question in dispute?

MR BATHURST: It will not be in dispute, the fact that we appointed them. We will be saying in carrying out that appointment we were furthering the scheme. That was the way the whole scheme was to be structured.

HIS HONOUR: What about your liability for the acts or omissions of those you appointed in pursuing their part of the function?

MR BATHURST: We submit that we have immunity under the second limb of Bradken, so that does arise.

HIS HONOUR: Apart from the second limb of Bradken, are you vicariously liable?

MR BATHURST: Your Honour, I am not in a position to answer that question. Prima facie, the answer would seem to be yes. We have not put on a defence. I would not like to finally commit myself at that stage but, prima facie, the answer would be yes.

HIS HONOUR: Then it cannot go forward for argument in this Court on the basis that that will be your final situation?

MR BATHURST: I have not those instructions at the moment. I cannot say conclusively there would not be an argument to the contrary.

HIS HONOUR: I suppose, a fortiorari, you could not say for which of the actions you would be vicariously liable either.

MR BATHURST: Quite. One of the reasons that I hesitated on the first question is because of that very issue.

HIS HONOUR: Yes, I see. Yes, thank you, Mr Bathurst.

MR BATHURST: If your Honour pleases.

HIS HONOUR: Mr Bannon.

MR BANNON: Your Honour, we say that the factual debate does present a difficulty that cannot be resolved in this Court which is not possible. There are two, I suppose, theoretical questions which do not need any facts, namely, one, whether the Trade Practices Act - does it apply to the State, I suppose, in any circumstances. If one had to go beyond that fairly narrow question and ask whether it applies in some circumstances and not others, it is unlikely the Court would think it useful to try and set out the extended parameters in a vacuum.

HIS HONOUR: But why could the Court not answer the question - this is question 1 - by reference to the acts that are alleged against the State in the statement of claim without reference to other material except for the purpose of referring to other material being documents which are incorporated by reference into the statement of claim?

MR BANNON: For our part, to answer the question as to whether the State is bound, one would need to understand the HomeFund scheme and we would not be satisfied that the statement of claim would satisfactorily set out all the relevant aspects of the HomeFund scheme to demonstrate that it is, indeed, a State activity. So we would be reliant on the statement of claim in that argument in circumstances where we have not previously been relying only on the statement of claim. We were prepared to go to court on a preliminary issue so described before the Full Court on the basis we had the benefit of that additional material, but we would not have been prepared - well, I cannot say that conclusively. It is unlikely we would have been prepared to go simply on the basis of the statement of claim without being able to provide some flesh to the HomeFund scheme.

HIS HONOUR: And the flesh is being provided in these documents.

MR BANNON: Yes, but adequately, for our part, set out in the Full Court judgment, but I think the applicants do not necessarily accept the views expressed by the Full Court as to the effect of all those documents. It is true, it does not say they were findings of fact but for our purposes we are content with them as if they were findings of fact. As I understand, the applicants - - -

HIS HONOUR: It may be possible to agree a statement of facts in relation to the State.

MR BANNON: It is conceivable, yes. It has not been attempted but I think it was originally envisaged that the agreed bundle before the Full Court would provide all the necessary documents to enable the Full Court to find facts. It was during the Full Court hearing that it became - there arose a bit of a debate as to whether certain documents were authentic or admissible and I think that is where the course of the hearing may have diverted away from a situation where the Full Court would have found facts which could support true findings on preliminary issues which could have come to this Court. But I think, to answer your Honour's question, we definitely would not rule out the possibility that we could agree on a sufficient number of facts to at least answer question 1 in a sensible way but I could not guarantee it. It would depend how - - -

HIS HONOUR: How things went.

MR BANNON: How happy the applicants are with, really, what is set out in the Full Court judgment.

HIS HONOUR: Yes, I see.

MR BANNON: So far as the second limb is concerned, we have an interest in the second limb applying to the other respondents, albeit, it may be a more indirect interest. Again, we would say in theory the Court could answer, without reference to facts, whether there is a second limb, if that is what the applicants wish to contend but, again, it would not be a useful exercise to try and set out the ultimate parameters or extent of that second limb without reference to a particular factual situation.

HIS HONOUR: Why could it not be dealt with on the footing of the expression of a principle which would distinguish between those matters covered by an immunity, if immunity be found, and those which are not?

MR BANNON: In theory, it could be. Perhaps I could say this: the Court has sometimes, from time to time, been concerned about setting out - confining itself to principles and this case may fall into that sort of category about which the Court has expressed concern in the past in other matters. If the Court, I suppose, did not have that discomfort, then it could do so, but we might question the utility of it.

HIS HONOUR: Yes. Yes, thank you, Mr Bannon. Mr Levin.

MR LEVIN: Your Honour, I just want to adopt the submissions that have been made before but to add two aspects.

HIS HONOUR: Which ones?

MR LEVIN: I am sorry, by the respondents. Primarily, I want to stress, as far as the Co-operative Housing Societies are concerned, the importance of the factual matters in placing the Societies in the scheme of the arrangement. Effectively, they were the shopfront for the borrowers but the way they got there, the way that the scheme arose on their contractual documents is very important in so far as we wish to claim an immunity from the State and, indeed, we obviously have a concern that if any principle should be enunciated by the High Court that, in fact, it is one that could easily be applied to the Societies. The Societies themselves are not so close to the State that you could say that they were acting as, effectively, a part of a government agency but we say we are close enough to be able to be within the realm of the State.

HIS HONOUR: That does not sound very much like a legal principle.

MR LEVIN: It is a concern - I think, if the Court were to proceed on the basis of the issues being dealt with simply as a matter of principle, that the grey area, so far as the Co-operative Housing Societies would be concerned, is perhaps more than the others. It is of greater concern.

In addition, we have already suggested to the appellants to have an agreed statement of facts. We put that in writing and we received a response that they did not think that that could be done or achieved with any sufficient utility. They also pointed out that there was no agreed statement of facts before the Federal Court and so did not wish these proceedings to proceed on the basis of an agreed statement when that was not already dealt with before the Federal Court. So, that argument has already been rejected.

Now, obviously, if that is going to be reconsidered, we would be happy to go along with that. However, I will say that there is some factual issue of contention between the Societies and the appellants in so far as certain acts of marketing of the scheme is concerned. The appellants maintain, for example, the Societies marketed the scheme independently of the government. Our position is different from that. In so far as there is alleged misleading and deceptive conduct, an issue of marketing is obviously relevant to whether any borrowers have been misled. So, that is what I really want to add, your Honour.

HIS HONOUR: Mr Basten.

MR BASTEN: Your Honour, just in relation to Mr Levin's last point, I would need to check the statement of claim to see if we allege independent marketing but, as the High Court said at page 56 in its judgment, 131 of the appeal book, to the extent that there was, as it were, independent action, then we have a Trade Practices action against whomever it may be in any event.

HIS HONOUR: What does "independent" mean?

MR BASTEN: I used a term - - -

HIS HONOUR: Yes, I know you did.

MR BASTEN: I am sorry, I did not look at the - - -

HIS HONOUR: That is the difficulty though, is it not? How far does this immunity spread?

MR BASTEN: Beyond the involvement which is described by the Federal Court in terms of "agency of the government". That was the concept Mr Bathurst picked up; that is the concept which is referred to at pages 131 and 132 of the appeal book and, really, I think, although we do not plead agency because we were pleading the underlying facts - - -

HIS HONOUR: The answer to question 2 that was given:

to the extent that the acts or omissions giving rise to those claims were not outside the scope of the HomeFund scheme as devised - - -

What does that mean?

MR BASTEN: In the absence of any final findings of facts as to the scope of the scheme I cannot answer that question simply, your Honour, but I am not sure that they were intending to be concerned with the precise limits of the pleadings. That was the point I was seeking to make before. We would be happy to have the matter of principle determined on the basis of the matters pleaded.

HIS HONOUR: But what is the principle?

MR BASTEN: Question 1 is the application - - -

HIS HONOUR: Question 1 I understand. Question 2?

MR BASTEN: It is really the second limb of Bradken: where an independent third party is involved in an activity carried out in association with or on behalf of the Crown, does the immunity extend to it?

HIS HONOUR: What is the criterion for that association; that it is close?

MR BASTEN: The question of degree to which your Honour refers is a criterion which, I suppose, one looks to in the law of agency generally. In any given circumstance where an act has taken place, one must ask, "Is it within or outside the scope of the agency?" We do not have any difficulty with that proposition. We accept that for the most part what we have pleaded is within the scope of the agency. But that is a question of fact which we would not apprehend this Court would need to consider because we concede that the activity of Mr Bathurst's client, for example, was basically within the scope of the scheme it was associated with the government in.

HIS HONOUR: So, it was the agent of the government?

MR BASTEN: That is the phrase which the Federal Court uses on more than one occasion. I am not sure whether that is intended as a particular finding of fact and law. It is certainly a general description of the arrangement.

HIS HONOUR: I am not sure whether it is the phrase that Mr Bathurst would use, for example.

MR BASTEN: I thought he did but - - -

HIS HONOUR: Well, it may be that it is and if it is, well, then it may be possible to say if there is an immunity then a party who acts as agent for the government is entitled to the benefit of that immunity under the Bradken principle, if the Bradken principle is applied. If it is not in terms of strict agency, then there is a new problem arising. With a collegiate court, one would not want to have divergent views expressed as to what that principle may be.

MR BASTEN: As I said, your Honour, I did not come here intending to formulate a specific principle. I accept that we are restrained by what was pleaded. I do not wish to go beyond what was pleaded and I am happy to limit the scope of the matters which raise the issue of principle in accordance with that pleading.

HIS HONOUR: Are you able, do you think, to agree a statement of facts with the State?

MR BASTEN: I would think it quite likely that we could agree the statement of facts, not only with the State but probably with other parties too. May I say one thing in response to Mr Coles. His point about the questions raised in the notice of appeal is one thing. When it came before this Court, we were asked to, as it were, include the questions and our proposed answers in the document and we did not seek to amend the other aspects of the notice of appeal but we understood that the Court was really going to deal with those questions rather than what we had previously put before the Court as a draft notice of appeal.

HIS HONOUR: It may be best if I were to adjourn this generally to give the parties an opportunity to see whether it is possible to agree a statement of facts by reference, if need be, to documents - I mean, there is no problem about referring to documents once there is no more than the construction of that document involved - and then to see whether or not your argument can be formulated in a way which raises no more than a question of principle and that, by concession, on all sides. But if that is not done, it seems to me that the question may need to be further considered by a Full Bench.

MR BASTEN: I understand your Honour's concern. I would hope that that can be done because the way the matter came up before the Full Federal Court may not, in its ultimate formulation, have been ideal but I think we all had in mind the proposition which your Honour was putting so - - -

HIS HONOUR: Yes, I can see the general desirability of getting something settled before you get into a mass of facts, especially in a representative action. That can be coped with provided the issues, at this stage, are in a sufficiently crisp form to allow their determination.

MR BASTEN: If your Honour pleases.

HIS HONOUR: I suppose I should ask you, first of all, if this matter were to be adjourned, for how long would you wish it to be adjourned and in what form should it come back? In other words, would it be desirable for you to proceed to agree a statement of facts and to reformulate the issues for determination as listed in your proposed statement of claim, and how long would all that take?

MR BASTEN: It might take some brief time. I certainly have commitments to the end of the year. I think the view is taken that we need to take the first initiative. I do have some difficulties for the remainder of this year. I do not know that there is any great objection if it went over to a time next year and we would seek to follow the course that your Honour has proposed.

HIS HONOUR: Yes. Well, that can be done. The first sittings next year, I think, has a commencement of February.

MR BASTEN: Given the holiday period, I do not know whether we would have agreement if there were - - -

HIS HONOUR: Yes. It would seem that perhaps the first day on which it would be possible to deal with it would be Monday, 16 February, would that be a desirable date?

MR BASTEN: I think we should aim for that date, your Honour, yes.

HIS HONOUR: Is that agreeable?

MR COLES: That is convenient.

MR BATHURST: If that is convenient to the Court, yes, your Honour.

MR BANNON: I am happy with that, your Honour.

MR LEVIN: Yes, your Honour.

HIS HONOUR: We will adjourn it then until 16 February. I should say that the consequence of this is that I do not think that the matter will be capable of being listed before the second week of the May sittings or possibly the June sittings, but that is a consequence that I do not think can be avoided.

MR BASTEN: If your Honour pleases.

HIS HONOUR: I will adjourn the matter generally until 16 February. It will probably be desirable if you could take the initiative of, on both scores, that is reformulating your grounds and also seeing if the statement of facts could be agreed. I would think that the desirable objective, as I say, is that no more should go to the Full Bench than volume 1 with such documents as are necessary to support it.

Adjourn the Court to a date to be fixed.

AT 10.14 AM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 16 FEBRUARY 1998