Frugtniet v The Queen S114/1996 [1998] HCATrans 1 (9 January 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S114 of 1996

B e t w e e n -

BRIAN OWEN REGINALD WORRELL FRUGTNIET

Applicant

and

THE QUEEN

Respondent

Application for extension of time and expedition

BRENNAN CJ

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 JANUARY 1998, AT 9.30 AM

Copyright in the High Court of Australia

MR N. PAPAS: May it please the Court, I appear for the applicant. (instructed by MacElbing & Associates)

MR P.G. BERMAN: May it please the Court, I appear for the respondent. (instructed by the Solicitor for Public Prosecutions (New South Wales)

HIS HONOUR: Yes, Mr Papas.

MR PAPAS: May it please, your Honour, this is an application brought by way of summons seeking to - in practical terms, I suppose, seek the Court's exercise of discretion pursuant to Order 69A rule 13(1) where, in terms of the rule:

Where an.....application shall be deemed to be abandoned, unless the Court -

otherwise orders - - -

HIS HONOUR: No, "has otherwise ordered".

MR PAPAS: I am sorry, your Honour: "has otherwise ordered". If it please the Court, what I propose doing is very quickly itemising the delay, going through the material that has been filed. There has been some affidavits that have been filed, your Honour, which purport, amongst other things, to identify the applicant's reasons for the delay. If I get to a position where your Honour is at a level of satisfaction that maybe there is good reason for the delay, I think there is another hurdle to clamber over which would be - I am not sure about a full merits tests but, certainly, my reading of the authorities would be that the Court would be loath to grant such an application without being satisfied that there is something worth arguing. Now, how high the bar is set is not clear in that there has not been, as I understand it, in this Court this sort of application but there has been authority in at least the case of Gallo v Dawson looking at extension of time for proceeding.

HIS HONOUR: Yes. Well, you develop your argument, Mr Papas.

MR PAPAS: May it please the Court. Your Honour, the learned Crown Prosecutor has been good enough to provide me with a chronology and I would ask that he be given an opportunity to hand a copy of that to your Honour.

HIS HONOUR: Thank you.

MR PAPAS: I am indebted to my learned friend. That chronology appears to be accurate and works backwards so that the last relevant date appears at the top of the page as being the date upon which the certificate of deemed abandonment was filed.

I have a copy of the correspondence of Mr Millar, the Deputy Registrar of the Court, dated 26 September 1997 where Mr Millar wrote to the Solicitor for Public Prosecutions, with a copy to those instructing me - to the instructors on the record, should I say - identifying that there was a letter dated 18 September 1997 requesting a certificate of deemed abandonment pursuant to Order 69A rule 13 of the Rules.

HIS HONOUR: Let me see if I have the right material before me first. You are applying on the summons, I take it?

MR PAPAS: Yes, your Honour.

HIS HONOUR: Dated 5 January. Now, what is your supporting material? Any affidavits?

MR PAPAS: The supporting material is two affidavits dated 23 December 1997, sworn by the applicant, Brian Frugtniet, and a further affidavit that was filed today that was filed to correct a factual change, dated 7 January 1998, a one-page affidavit, sworn by Brian Frugtniet. Has that gone to the file, your Honour?

HIS HONOUR: I am not sure I have the one that is filed today.

MR PAPAS: Perhaps it would have been better to have handed it up to your Honour. I have a sealed copy with the Court's stamp on it. If your Honour would permit me to hand your Honour a copy of that. My learned friend has a copy.

HIS HONOUR: Yes. I have two affidavits by the applicant. They are both dated, I think, 23 December 1997, is that right?

MR PAPAS: One is a short one and the other one is a lengthier 56-paragraph affidavit, your Honour.

HIS HONOUR: Yes. That is three affidavits altogether that you - - -

MR PAPAS: Yes, your Honour.

HIS HONOUR: Now, is there some other material, apart from the chronology which is, I take it, by consent.

MR PAPAS: Yes, it is, your Honour. No, your Honour. I am sorry, your Honour, there is material that was filed purporting to be part of the material in support of the application for special leave which has now been deemed abandoned, including an applicant's summary of argument that was filed on 16 June 1997. That is a document that is headed, "Applicant's Summary of Argument, Part 1 - Concise Statement of Leave or Special Leave Questions." It appears to have a Court stamp of 16 June, your Honour, and it is signed "On Behalf of the Applicant".

HIS HONOUR: Yes.

MR PAPAS: Now, there is also a draft grounds of appeal but, your Honour, this document, in effect, reflects those draft grounds and there is no need for your Honour to have recourse to those draft grounds at this stage.

HIS HONOUR: Yes. What are the grounds for, first of all, setting aside - assuming there is jurisdiction to do so - the certificate of deemed abandonment?

MR PAPAS: The affidavit of 23 December 1997, your Honour, which is the longer one of some 50-odd paragraphs ranges widely. Can I draw this caveat, your Honour: these have been drafted by the applicant and by the applicant's wife assisting him, not by me or those instructing and so, therefore, your Honour, there is a degree of - - -

HIS HONOUR: I understand.

MR PAPAS: There are some problems with the papers. So, if your Honour would go to the longer affidavit and I will take your Honour to particular paragraph numbers which are itemised as being directly relevant to the question of the delay. Paragraph 23: the applicant is not funded for these proceedings. We will go back to the chronology later, but he was also having problems being funded in Victoria where he was facing criminal charges. I act for him now on those matters, having been instructed in July 1997. So, the question of representation is the first matter that caused him some difficulty in relation to complying with the procedural requirements of the Court. I might say, your Honour, that it might well be that on its own that would not be enough, bearing in mind the learned Registrar has certainly granted a great degree of assistance to the unrepresented applicant in these proceedings.

The second relevant paragraph is paragraph 24, your Honour. That purports to identify that he has been facing simultaneous proceedings. Now, that is probably not quite accurate in that he has his Victorian trial on foot.

HIS HONOUR: What is the trial in Victoria for?

MR PAPAS: Charges of making and using false documents purporting to be American Express travellers cheques that arise from around the same period as the subject matter of this appeal.

HIS HONOUR: Printed by the same printer?

MR PAPAS: Printed by the same printer, prepared by the same graphic artist and investigated by the same police. That is a significant matter in the context of the dynamics of the case, if I could say that, your Honour.

HIS HONOUR: And issued by whom, or used by whom?

MR PAPAS: By one of the co-accused who has been subject to a no bill in New South Wales, Mr Seyfarth. He has, in fact, pleaded to a use charge; whether it is conspiracy or a substantive count, I cannot quite marry it up, your Honour, but he has pleaded in Victoria to a use charge of those Victorian cheques. Mrs Frugtniet, the applicant's wife, is charged with both making and using - conspiracy, but both make and use - and Mr Brian Frugtniet, the applicant in these proceedings, is also charged with both.

HIS HONOUR: Am I right in thinking that the issues that will arise in the Victorian proceedings are, in substance, the same kind of issues as arose here?

MR PAPAS: That is my argument in Victoria, I might say, your Honour, but I would have to say, your Honour, that the Crown would dispute that to the extent that the Crown says it was capable of division. The Crown accepts that Mr Dallimore, Mr Seyfarth, Mr Vickery, who is a police informant in the New South Wales matters, and others, are common. As an example, your Honour, the listening device warrant that was issued by his Honour Mr Justice James of the New South Wales Supreme Court is the basis upon which the case is proceeding in Victoria, that is, certain material was disclosed by Mr Dallimore, wearing a tape, in conversations with Mr Seyfarth. Those conversations are being led against Brian Frugtniet and Suzanne Frugtniet in Victoria.

So, your Honour, I would enthusiastically say, yes, they are the same issues but I need to be very careful because that is subject to a ruling I have already - Mr Frugtniet has made an application for an abuse of process as an example, a stay, suggesting that it is a similar Walton v Gardner -type situation: inability to receive a fair trial type of suggestion. That has been rejected by the trial judge. So, I cannot say to your Honour, yes, they are the same issues but there must be seen to be a comedy of issues to the extent that they are very similar players. The main point on the merit issue which I will tackle later, your Honour, is the question of Justice James' issuing of the search warrant, because that search warrant has only been relevant to the Victorian proceedings but the information that was put before his Honour, in my submission, discloses New South Wales relevance, as an example, listing of the five cheques that were the subject of these proceedings, the New South Wales matters were part of the information that was put before his Honour Justice James when he acted administratively in issuing the search warrant - the listening device warrant, I am sorry. I keep saying "search warrant". The warrant.

HIS HONOUR: What I am wondering is why is it that the substantial justice of this matter would not be met by standing this application over until after the Victorian trial?

MR PAPAS: One issue in the Victorian trial is that the question of the National Australia Bank cheques, which were the subject matter of the New South Wales proceedings, will inevitably become relevant to the Victorian proceedings. To this date, the Crown has not said that it will rely on those documents or the facts surrounding those documents as similar fact type evidence but has said that if cross-examination somehow raises issues relevant to the New South Wales matters, then there may well be evidence led that is effectively similar-fact evidence rebutting whatever it might be that cross-examination raises. That has already been raised as an issue.

HIS HONOUR: I understand that might happen but where does that lead us?

MR PAPAS: The fact that Mr Frugtniet, the applicant in these proceedings, seeks to challenge his conviction is a relevant consideration when assessing what use could be made of the New South Wales material in Victoria to this extent: if his conviction stands, whilst the fact of the conviction is a bad character issue - and if I could put that to one side, your Honour - the facts disclosed, if they were subject to perhaps an acquittal or some sort of a quashing of the conviction might well permit a bar or some form of full benefit of the acquittal issue, if I can use that phrase, on the running of the trial in Victoria. So, that might sound like tactics, your Honour, but that is - - -

HIS HONOUR: It sounds like a fairly long bow, actually.

MR PAPAS: The more important issue, I suspect, your Honour, is the bad character issue also. He needs to cross-examine. I notice one of the police officers who is relevant to these proceedings is also a witness in the Victorian matters, Mr Shiliro, who is present in Court.

HIS HONOUR: If special leave were sought and were granted and an appeal were allowed in this Court, all that would happen would be an order for a retrial, surely.

MR PAPAS: It might not. It might have to go back to the Full Court subject to which ground gets out, your Honour. If the ground that relates to - - -

HIS HONOUR: If it went back to the Full Court the conviction would still be on foot.

MR PAPAS: It would, subject to what the Full Court did. Yes, your Honour, that is so. The best he could achieve would be a retrial.

HIS HONOUR: Yes. Well, that means that whatever happens there is not going to be any resolution of the New South Wales proceedings before the date set for the Victorian trial.

MR PAPAS: That is so, your Honour, because the Victorian trial will proceed in March.

HIS HONOUR: Yes. If that is so, if he is convicted in the Victorian trial, the prospect of doing very much in relation to these proceedings is fairly limited, I should have thought. If, on the other hand, he is acquitted in the Victorian trial it may be that there will be issues that will be very much alive in these proceedings.

MR PAPAS: I hope your Honour's confidence as to how little he will do is shared by whoever sentences him in Victoria. There would have to be a significant totality-type assessment of any sentence he was to receive in Victoria, bearing in mind the age of the matters and the fact that Mills Case is still the law in Victoria, notwithstanding some recent changes in the Sentencing Act.

HIS HONOUR: But no doubt the judge, in sentencing in Victoria, would be bound to take into account both his conviction and his sentence that has been served in New South Wales.

MR PAPAS: Yes, your Honour, that must be the case. The substantial justice of seeking the matter to proceed now is very much, I suspect, based on, as my client himself puts in his affidavit, the window of opportunity before the Victorian case starts.

HIS HONOUR: What he seems to think is that - if I have read the affidavit correctly - first, that if he can get the application allowed now, he can get a hearing in the High Court almost immediately. That is a prospect which is just not available.

MR PAPAS: He must understand that even if he were to be given a grant of special leave to proceed, the appeal itself might take a year or longer to get on.

HIS HONOUR: Yes, so it is a very long drawn-out proceeding and this Court is not here, of course, as a general court of appeal.

MR PAPAS: I understand that, your Honour.

HIS HONOUR: So that prospect and the thought that somehow a favourable decision from this Court at the end of the line would result in some benefit for the Victorian trial seems to be misplaced.

MR PAPAS: Yes, I accept that, your Honour. It would not be an appropriate means of proceeding in this Court to try and get a benefit in another proceeding albeit how relevant the proceedings in this Court are to the other proceeding. The question of justice, in the applicant's mind, is still foremost - and I hope it comes out in his affidavit - - -

HIS HONOUR: I understand that.

MR PAPAS: He seeks redress and one concern he has is to explain why he has not done what was required for the proceedings to continue. I would think that the application for expedited hearing probably has little hope of success before your Honour.

HIS HONOUR: I think that is right so far as I can see on the material.

MR PAPAS: Yes, and I would not press that, your Honour. I understand that I would need to be able to show - I do not know if the word "exceptional" is too strong but very significant reasons to jump the queue, so to speak, notwithstanding the age of the matter because the delay has, of course, been as a result of the applicant himself not taking certain steps.

HIS HONOUR: You had better take me through - so we can deal with it logically now that I understand it a little more - the chronology, not only in terms of the chronology that has been produced by your opponent but also the events that took place that account for that chronology.

MR PAPAS: May it please, your Honour. Of course, as all good counsel do, I have now misplaced the chronology that was directly in front of me.

HIS HONOUR: I think I have done the same.

MR PAPAS: If it would be convenient to your Honour to start on the second page of the chronology, leaving aside when he was arrested and going to his appeal. On 21 June 1996 the Court of Criminal Appeal of New South Wales dismissed his appeal against conviction and sentence. On that day, he filed his application for special leave to this Court. He filed a statement in support of the application for special leave and a draft notice of appeal on 14 August 1996 and, of course, as your Honour will recall, that was the procedure prior to the change in the Rules.

HIS HONOUR: Yes.

MR PAPAS: In November 1996, the Registrar settled the draft index for the application books. There was a direction that they be filed by 16 December 1996. Now, turning over the page, there was an application seeking bail from the Supreme Court which was refused. The application books were not filed on 16 December and on 19 December, before her Honour Justice Gaudron, there was an application for an expedited hearing and for bail, as I understand those proceedings, and her Honour refused both of those applications. I have had the benefit of looking at a transcript of her Honour's discussion with counsel and her Honour's reasons and I think it would be fair to say that she found it a bit difficult to exercise any discretion in favour of an applicant seeking any sort of expedited hearing when the books were not even filed in accordance with the time frame of the Rules as they then were. In any event, the New Year came and the Registrar wrote, as I understand it, early in the New Year.

HIS HONOUR: He is in gaol at this time, is he?

MR PAPAS: He is in gaol, your Honour. I am sorry, I should have made that clear. He had bail for a period of time pending the Court of Criminal Appeal's decision but the learned Chief - - -

HIS HONOUR: He was taken back into custody when that - - -

MR PAPAS: The learned Chief Justice took him back into custody, I believe, on 1 May. I can check that for your Honour but, in any event, he was in custody in May 1996, having only served approximately three months of his original sentence which was imposed in December - well, effective from December 1994 but, in fact, imposed on 27 January 1995. Your Honour will see that he was granted bail pending appeal on 23 March 1995.

HIS HONOUR: Yes. He was in gaol from 30 April 1996.

MR PAPAS: Yes, your Honour.

HIS HONOUR: Until when?

MR PAPAS: Until he was released in 20 July 1997. Your Honour will see that towards the top of the page. So, the Registrar deemed 10 March 1997 to be the notional filing date for the application for special leave because of the changes in the Rules. There is correspondence which I have sighted where the Registrar gives clear assistance to the applicant on what has to be done and gives the applicant six months, in accordance with rule 13, he having the discretion to do so.

Your Honour will then see the further procedural steps that took place in this Court including, on 16 June, a filing of that summary of argument and draft notice of appeal but there was no service on the Crown, and I have no explanation for that. The affidavit, I do not think, touches on it, your Honour, and it simply was not served.

HIS HONOUR: How was the summary of argument filed? I mean, the applicant was then in gaol. Did his wife attend to that?

MR PAPAS: Yes, Mrs Frugtniet. In fact, if your Honour has that - - -

HIS HONOUR: The summary of argument?

MR PAPAS: Yes. Your Honour will see her signature on it, I believe, for him.

HIS HONOUR: Yes.

MR PAPAS: Yes, the one I have here, "S.M. Frugtniet, For & On Behalf of the Applicant". I might add, he was transferred from a New South Wales prison to a Victorian prison in May 1997. It does not appear on this. There was interstate transfer of prisoner proceedings instituted between New South Wales and Victoria. The Victorian authorities, in the guise of the Commonwealth DPP, were keen to bring him back because his trial had in fact commenced whilst he was on bail.

HIS HONOUR: In Victoria?

MR PAPAS: Yes, in 1996. When he went into custody in New South Wales in May 1996 that, of course, put paid to the Victorian proceedings. The Victorian proceedings then went their separate ways; separate trial applications, various things. All of that was rejected. The Victorian case was put on hold pending his return. Upon the Court of Criminal Appeal in New South Wales rejecting his appeal, the Victorian authorities then sought to bring him back to Victoria. He resisted that and that came to this Court finally in April/May 1997, and that was before - - -

HIS HONOUR: Anyhow, he was taken to Victoria.

MR PAPAS: He was taken to Victoria.

HIS HONOUR: And he served the rest of his sentence in Victoria, did he?

MR PAPAS: In Victoria.

HIS HONOUR: And when he was released on 20 July 1997, he was released in Victoria?

MR PAPAS: Correct, and his trial had commenced. I, by then, had been appointed his counsel and the case was proceeding but subject to arguments regarding legal aid, and the affidavit deposes as to some of those matters and I will take your Honour to those matters in a moment. Now, the Registrar wrote a letter advising that time was running.

HIS HONOUR: Can I just interrupt you. Why did not his trial in Victoria restart on his release?

MR PAPAS: It had in fact restarted prior to his release. Once he was returned he was in custody and the Victorian Legal Aid Commission then, at a point shortly after his return to Victoria, withdrew funding.

HIS HONOUR: What happened to his trial?

MR PAPAS: It then was put on hold pending the various procedural reviews that are capable of being undertaken, and court hearings. Eventually - and this is shorthand - in September, finally the trial was fully funded and ready to commence. When I was originally briefed I was briefed to complete a voir dire proceeding that had been going for some time. That was in July. So, the voir dire continued in July and August. So, the trial was proceeding - - -

HIS HONOUR: Was that before a jury was empanelled?

MR PAPAS: Before a jury was empanelled and it proceeded whilst he was in custody and after he was released. So, his attendance was required in Victoria certainly during July and for some part of August. But during August he did get a chance to come back to New South Wales. I am not quite sure how that is deposed to in the material but he had the Victorian matters continuing and they are still continuing.

HIS HONOUR: Has a jury been empanelled at any time?

MR PAPAS: We have had three juries, your Honour.

HIS HONOUR: That is right, I have read that, yes.

MR PAPAS: As an aside, this is one of those cases, if I can suggest that, your Honour, which is - - -

HIS HONOUR: Yes, you will remember it for a time, Mr Papas?

MR PAPAS: Yes. I am sure the system will, your Honour, if I can put it that way. It is bound to go all over the place. In any event, your Honour, that date came and went and interestingly, it is not that there was no summary of argument or draft notice of appeal but that there was no service of it. My instructions are, as I understand it, and it is deposed to that there was no funding for legal aid here in New South Wales, it was all being done with solicitor on record being MacElbings for purposes of delivering documents and other such things but otherwise all the work was being done by the applicant and his wife.

HIS HONOUR: Why was it not served?

MR PAPAS: I do not know, your Honour. I think the affidavit suggests in paragraph 38 that it was simply something that Mr Frugtniet was simply unable to concentrate on.

When I returned to Sydney from Melbourne after the trial was adjourned I received a letter on 15th December 1997.....enclosing all the documentation concerning the deemed abandonment of this application. Whilst I was in the dock attending at Court daily it was impossible for me to also concentrate on what was going on in this application and my wife who usually assists me with these matters was facing trial unrepresented and could not provide me with any assistance at all. I would not have let this lapse if not for my incarceration and the other court proceedings. It was an onerous task and I have had great difficulty coping with so many matters concerning the one set of facts in the same time period only involving separate financial instruments. I also have great difficulty due to my current poor financial position.

So, really, all he says is, "Look, I apologise. I was unrepresented. I had other matters that were pressing and I simply let it lapse through an inability to do all things."

So, your Honour, the excuse is based on that and those other paragraphs numbers I was going to take your Honour to, the simultaneous proceedings. Paragraph 25, which relates to his interstate transfer proceedings; paragraph 26 - and this is not a matter of small moment, your Honour. In Victoria there have been - and I apologise for this being from the Bar table because I did not ask this to be put in affidavit form. I did not have a chance to do so. But at least three, if not four, proceedings, both in the County Court and in the Supreme Court, pursuant to section 360A of the Victorian Crimes Act which is that section which purports to deal with the Deitrich discretion, in other words, our judges in Victoria have the discretion under statute to direct aid.

So, it has been before the Chief Judge. Chief Judge Waldron has dealt with it. The trial judge has dealt with a separate application; Justice Hedigan, Justice Tim Smith and least one other judge, just since I have been in the matter.

HIS HONOUR: So there has been battle joined on a number of fronts.

MR PAPAS: Very much so, your Honour. Paragraph 29, I suppose, also raises the question:

I had to let the deadlines lapse as things out of hand and I was unable to cope.

So, that is really the gist of what he puts in affidavit form explaining his delay, your Honour.

HIS HONOUR: Yes. Now, when was the certificate of deemed abandonment sought?

MR PAPAS: Sought on 18 September 1997.

HIS HONOUR: Was your client given any notice of that?

MR PAPAS: I do not know, your Honour. What I have is a copy of a letter from Mr Millar, the Court's Deputy Registrar, addressed to the Solicitor for Public Prosecutions dated 26 September 1997. Does your Honour has that?

HIS HONOUR: Yes.

MR PAPAS: In that he refers to a letter from the Solicitor for Public Prosecutions dated 18 September 1997. I have also a copy of the certificate and that is dated that same date, 26 September. My understanding of the Rules are that there is no requirement for service of the request for a certificate. I suspect that follows from the terms of - - -

HIS HONOUR: I think it follows clearly from the terms of rule 13.

MR PAPAS: Rule 13, "Where the applicant fails" it is "deemed to be abandoned" and the certificate is simply proof for the civil side of things, I suspect, rather than for these sorts of proceedings.

Your Honour, I am not saying categorically there was notice because it might well be that something was served on the solicitors on the record but they have assiduously done the right thing and forwarded all correspondence on. I do not know, your Honour.

Your Honour, I had access very quickly - I will not use the term "resources of the Crown" because I am sure your Honour hears it every time defence counsel stand up but I had access to Bourke's Criminal Law, which is the Victorian text on criminal proceedings, last night and I have extracted a particular page and if I could hand up, your Honour, two copies of that extract. These are those parts of the text that relate to appeal sections in the Victorian Crimes Act and at page 5922, now referring to Bourke's Criminal Law of Victoria published by Butterworths, a loose-leaf service, in notes dealing with section 567 of the Victorian Crimes Act, there is a paragraph section 567.45, "Reinstating abandoned appeal", there is reference to:

no statutory provision in Victoria giving the court power to permit withdrawal -

but there is reference to "an inherent power", and then there is reference, in the second full paragraph, to Brandy:

The NSW Court of Criminal Appeal has held that it has inherent jurisdiction to go behind r 27 of the Criminal Appeal Rules -

that are all dealing with the filing of notice of abandonment -

to ensure that a miscarriage of justice does not go unremedied.

The reference there is to Reg v Brandy, Court of Criminal Appeal (NSW), 28 October 1996, unreported. The quotation reads as follows:

"Even if the explanation proffered for the abandonment is weak, that circumstance will not necessarily stand in the way of the grant of leave to withdraw the abandonment, if it be seen that there would be a miscarriagement -

I assume that is the words used -

of justice if leave were refused. In determining whether there would be a miscarriage of justice in such a case, regard is had to the applicant's prospects of success if his appeal were permitted to proceed": per Hunt CJ at CL at 2.

Your Honour, that is something that has to be tackled, at least briefly, before your Honour. Even if there is no application now being strenuously sought for an expedited hearing, the application to at least reinstate the appeal is pursued even if it is to then be left until after the Victorian proceedings.

Your Honour, there is another judgment that my learned friend has been good enough to draw my attention to which I concede is directly relevant and it is something I should have looked at as part of my researches, and that is Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, a decision of his Honour Justice McHugh. My learned friend, again, has been good enough to provide me with a copy of that and if I could hand up those relevant copies to your Honour. I will just go from the headnote, if it please your Honour, just for these purposes because it would appear to be not exceptional. This is a case dealing with time being sought in which to file a notice of appeal being extended. It is not an automatic function for time to be granted. These are civil proceedings, I might say, your Honour, as I understand it.

(ii) To determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.

With respect, your Honour, that would appear to be directly relevant to these proceedings and an incontrovertible and appropriate summary of what the law is.

HIS HONOUR: I think I understand the basis on which you have put the application but you might care to address the subject that is referred to in paragraph (iii) of that headnote.

MR PAPAS: Yes.

HIS HONOUR: I do not need to be satisfied that the prospect of the grant of special leave is watertight but I need to understand what the issues are that are said to arise in the case.

MR PAPAS: Yes. Your Honour, one needs to be careful not to go into the full special leave argument. It will take longer than what a special leave argument would take. So, I will go to the good points - if I can use that phrase - first.

HIS HONOUR: The points that are likely to attract a grant of special leave.

MR PAPAS: Yes, your Honour. In my submission, there are at least two points that would appear from the judgment of the Court of Criminal Appeal. I can provide your Honour a copy of that judgment in the context of a proposed application book if it would assist your Honour but if I can put them in shorthand. His Honour Mr Justice James issued a warrant pursuant to the Listening Devices Act of New South Wales. He did so, exercising what has now been clearly determined, in my submission - certainly with New South Wales Listening Devices Act cases, in any event - to be administrative action. His Honour did so, based on what material has now been discovered in other proceedings to have been on an affidavit, sworn by a solicitor for the police, as well as material provided by Mr Vickery, the police officer in these proceedings, that is the New South Wales matters, and the police officer who had something to do with the Victorian matters, even though he was a New South Wales Chatswood Police Station detective at the time.

So, in other words, his Honour Mr Justice James of the New South Wales Supreme Court exercising an undoubted power - "personae designatae", I think is the phrase that is used in the cases - exercised it by granting the warrant to attach a listening device to Mr Brent Dallimore and he did so based on material that has now been discovered since the date of the Court of Criminal Appeal hearing - - -

HIS HONOUR: How does that material get before this Court?

MR PAPAS: That is a question of judgment, your Honour, whether that needs to come before the Court.

HIS HONOUR: It cannot, under the Mickelberg rule, because this Court's function is that of an appeal court to determine whether the order made by the court below ought to be maintained.

MR PAPAS: There are two steps to that, your Honour. If the applicant can persuade a special leave Bench that on the face of what happened in the Court of Appeal there is a potential miscarriage of substance and it is based on an assessment of important questions of law, then that might attract the grant of special leave. The grant of special leave will be looking at the question of a judge's duties when having exercised administrative functions then faced with judicial proceedings. That is the nub of it, your Honour.

HIS HONOUR: It cannot be quite the nub of it. The question must be what effect this has on the order made by the Court of Criminal Appeal.

MR PAPAS: If the applicant could persuade a special leave Bench or, obviously, later on, a Court of Appeal, that Justice James had an obligation to, at the very least, advise the parties of his previous administrative function on relevant or associated material, then it might well operate to quash the judgment of the Court of Appeal and require a rehearing.

HIS HONOUR: Should that not be an application made to the Court of Criminal Appeal to vacate its judgment?

MR PAPAS: That is not being considered by me, your Honour. It has been put in the material as suggesting it is a separation of powers argument. My view, as counsel, it is probably not. It is more likely to be an apprehended bias argument based on the separation of powers concept. Separation of powers does not just relate to Chapter III of the Constitution. It clearly relates to the judicial function, and there is some authority for that in Love v The Attorney-General. I can take your Honour to that, if necessary.

HIS HONOUR: I can understand two propositions. One is the judge exercised his power under the State Act to authorise a listening device to be attached to somebody.

MR PAPAS: Yes.

HIS HONOUR: The same judge then sits on an appeal when there is an appeal against a conviction based, I take it, upon the product of the listening device?

MR PAPAS: No. No, your Honour, it cannot be said that that is the case. The judge sits on appeal where the person who had the listening device attached comes to the court and purports to give fresh evidence in the Court of Appeal and a judgment is made by that judge of the veracity of that person.

HIS HONOUR: Of the person who was authorised to exercise the listening device?

MR PAPAS: Yes, that is the nub of it. I am sorry I took so long to get there, your Honour. Mr Brent Dallimore was the man who the listening device was directed at carrying. He was the man who was identified in the material before the judge who issued the listening device.

HIS HONOUR: I understand the situation now.

MR PAPAS: And he is the man who gave evidence in the Court of Appeal and Justice James was the judge who delivered the main judgment. So that is the effect of that argument.

HIS HONOUR: The evidence that has been discovered since relates to the material that was placed before Justice James when he issued the warrant?

MR PAPAS: Yes, and that material has been extracted in the course of proceedings under the Listening Devices Act taken by another party, by Mr Seyfarth. However it has come to light, it has come to light after the Court of Appeal hearing. The affidavit avers that Mr Wendler of counsel, who appeared for the applicant in the Court of Appeal and the applicant did not know who issued the listening device when they were before the Court of Appeal.

It is not said, your Honour - I must make it clear, it is not suggested that it was a listening device in these proceedings. It was a listening device involved on all the same players, the same time - - -

HIS HONOUR: Yes, but the proposition is that the credibility of the person who used the listening device was in issue on the fresh evidence ground before the Court of Criminal Appeal.

MR PAPAS: Correct, your Honour, and I can take your Honour to the passage where his Honour makes a finding that he finds he has got no credibility. That is one issue.

HIS HONOUR: I understand the proposition.

MR PAPAS: Yes. Now, the other argument that might be a special leave point is the question of why an accomplice warning is given to a jury. His Honour Mr Justice James spent some pages looking at the various authorities. The proposition that was advanced to the Court of Appeal on behalf of the applicant, Brian Frugtniet, was that the accomplice warning should be couched in such terms that a jury, on a fact-finding exercise, has to be satisfied beyond reasonable doubt of the witness being an accomplice before there needs to be a warning or corroboration. The Full Court determined that that is not the case, that the practice in the States is that it is simply on the balance of probabilities. Various authorities were discussed and at the end of his Honour's judgment his Honour said, "And in any event in New South Wales the new Evidence Act now effectively resolves that problem." Now, your Honour, that is not conceded. When one looks at section 165 of the new Evidence Act, that - - -

HIS HONOUR: I understand that proposition.

MR PAPAS: So, that is the other main point.

HIS HONOUR: One of the points made, if I remember, reading the judgment of Justice James, correctly, is that there was no application for a redirection.

MR PAPAS: Yes, your Honour, and that is a hurdle. As I follow the argument that was raised down below, it is the sort of point that is so fundamental that notwithstanding a failure to seek a redirection on that particular point, it still requires correction on appeal. I accept that the hurdle is particular high on that type of argument, your Honour.

The other grounds that are raised, I concede immediately, have less chance of being seen as special leave points: a combination of a couple of the other grounds. The judge, when directing the jury, used the word "Tamil Tigers" instead of "Tamil". That is said to have prejudice. There was an argument that a non-responsive answer from one of the witnesses suggesting bad character and one other point as well which, for the moment, escapes me.

HIS HONOUR: They do not seem very attractive points.

MR PAPAS: No. You get up in the Court of Appeal on those matters rather than the High Court, I accept that, your Honour. They are the two - if I can put it - main merit arguments that, in my submission, might be seen to attract special leave.

What I would submit to your Honour finally is that at this stage your Honour would be inclined to err on the side of allowing at least a special leave application to be taken rather than requiring the applicant to show real prospects of success. It is a difficult balancing act, I accept that, and in the end it is an administrative function that your Honour is exercising.

HIS HONOUR: It seems to me that the one ground which might attract some consideration in the application for special leave, if one were made, is the question of the constitution of a Court of Criminal Appeal when that court is dealing with questions of credibility arising on the producing of fresh evidence. That raises problems of whether evidence is receivable in this Court for the purpose of dealing with such an application and it may be that that requires some further consideration of what has been laid down in Mickelberg's Case but I do not see much force in the other applications at the moment, at least not such as to lead me to think that there would be great utility in exercising whatever power there is to overcome the difficulties here. But I think what I need to discover is what the attitude of the Crown is in relation to this.

MR BERMAN: May it please the Court. Your Honour, the respondent opposes the application. If I can deal, firstly, of the principles to be applied. They are to be found, in my submission, in Gallo v Dawson to which my learned friend has referred. The passage which sets out in detail the principles appears at page 480 of the judgment. At about two-thirds of the way down the page his Honour says:

The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties -

I will omit the citations.

This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.

Your Honour, I will deal shortly with the history of the proceedings and the conduct of the applicant but can I first submit that the respondent and the community has a vested interest in having these matters dealt with expeditiously; a significant interest in seeing that criminal proceedings are determined to finality with undue delay. Secondly, that both the respondent and the community have an interest in having what appears to be a final decision, a final resolution, in fact be a final resolution, that there should not be, lightly, reopening of things that have been apparently finally determined. One manifestation of that is the caution that courts apply in allowing accused persons to change their pleas from "guilty" to "not guilty". There appears to be finality upon a guilty plea and the court exercises caution bordering on circumspection before that will be allowed and a similar principle, in my submission, should apply here, that where there has been what appears to be a final resolution of the matter, that the respondent and the community have an interest in seeing that that is in fact the final resolution.

Your Honour, my learned friend has dealt with the chronology and I do not wish to go through it again but may I simply point out that the delay is extraordinary, that well over a year has elapsed between when the application books were first due and this hearing, and that the applicant has breached at least four time limits set by the Court. He failed to have the application books filed by 16 December 1996; he failed to file a summary of argument by 7 April; he again failed to file the summary of argument by 28 April and on 10 September his fourth failure was a failure to serve the summary of argument but, perhaps more importantly, to file and serve the application book.

His justification or his explanation is in the affidavits he has filed. Your Honour, he says in paragraph 42 of the affidavit, the longer affidavit, that the application books are now ready to be filed but fails to provide any explanation as to what has changed recently which has enabled him to do the application books that prevented him from doing the application books earlier. He was released from custody, as has been referred, on 20 July and there is nothing appearing in the affidavit as to any change in circumstances which would explain why he can now do what he could not do by 10 September 1997. The inference I would ask your Honour to draw is the applicant was able to comply with at least the deadline of 10 September but, for reasons which are unexplained, did not do so.

Your Honour, I will turn now to the merits of the application, unless your Honour wishes to deal only with the - - -

HIS HONOUR: I would like you to deal with the merits of the application because I should tell you what troubles me at present. I would not entertain the application as having a prospect of success if it were not for the question of the constitution of the Court of Criminal Appeal.

MR BERMAN: I understand.

HIS HONOUR: In other words, if the Court of Criminal Appeal was erroneously constituted, then the question arises whether there has truly been an appeal which has resolved the appeal to that court, and that seems to me to raise an issue of considerable importance. If I could put it this way: if there is nothing in that argument so that special leave is refused, so be it; if, on the other hand, special leave should be granted to hear whether that argument has real legs in it, then it would seem to me to be wrong to hold a person out from raising such an argument. In other words, it goes to the constitution of the wheels of justice. That is the problem that I am having at the moment.

MR BERMAN: Yes, I understand, your Honour. Your Honour, of course there is the possibility of the applicant first approaching the Court of Criminal Appeal. Then there would be a judgment from the Court of Criminal Appeal which could be the subject of an application for special leave to this Court.

HIS HONOUR: That is right.

MR BERMAN: In my submission, that should be the first avenue of approach that the applicant seeks. The second thing is this - - -

HIS HONOUR: That may be so but that is, in itself, not a subject that I should address now.

MR BERMAN: No, your Honour, but it may be relevant on the special leave application.

HIS HONOUR: Of course.

MR BERMAN: Your Honour, the second thing is this, that my friend has put this on an apprehended bias basis. Mr Justice James dealt with the listening device application 41/2 years before the Court of Criminal Appeal hearing. He would not have seen Mr Dallimore. He may have seen the police officer but he would not have seen, physically, Mr Dallimore and so there was no reason that he would have recognised Mr Dallimore when he came before him.

The situation in New South Wales is that these matters are dealt with by the duty judge. The listening device applications are dealt with by the duty judge. So there would be nothing to make this matter stand out in Mr Justice James' mind when he dealt with the application. In my submission, it would be remarkable if his Honour recalled the matter.

HIS HONOUR: What were the terms of the warrant, do you know?

MR BERMAN: As I understand it, they allowed Mr Dallimore to wear a listening device upon his body.

HIS HONOUR: Did it name Mr Dallimore?

MR BERMAN: Yes, as I understand it. My learned friend will just check that. I understand that that is required. It does name Mr Dallimore, yes. But, as I said, he would not have seen Mr Dallimore, he would have seen the police officer.

It is significant that Mr Justice James himself does not raise the matter and, in my submission, one would have expected a justice of the Supreme Court, if he or she had a recollection, to have at least raised the matter with counsel.

HIS HONOUR: It may be the merest technicality in a sense.

MR BERMAN: Yes. If raised, it may well have been that both parties may have raised no objection to Justice James sitting on the matter. So, what I am getting to, your Honour, is that it is most improbable that Mr Justice James was aware of the matter when he sat on the appeal. How then, I rhetorically ask, could he have been affected by apprehended bias or any bias?

I see that in the applicant's summary it is suggested that Mr Justice James made determinations in the knowledge that he had previously dealt with Mr Dallimore. In my submission, there is no foundation for that, that Mr Justice James had that knowledge at the time he heard the appeal. It is further suggested that Mr Justice James could not have impartially acted. Well, of course, if he had forgotten about it, if it meant nothing to him, then there was no way in which he could have been biased or any impartiality could have arisen.

HIS HONOUR: Perhaps it is necessary to identify a little more closely what might be the possible ground of objection. Mr Papas has told me that it was not the product of the listening device that was used in evidence against the present applicant and, consequently, it must be simply that Mr Dallimore was the person named in the warrant. Now, there is nothing to show that Justice James ever saw Mr Dallimore.

MR BERMAN: No.

HIS HONOUR: And I would not be prepared to act on the assumption that he did, having regard to the nature of applications for the obtaining of a warrant. Dallimore was not a policeman, I take it, was he?

MR BERMAN: No, your Honour. He was one of the co-accused.

MR PAPAS: No, informer.

MR BERMAN: Informer, I am sorry.

HIS HONOUR: Now, the question then is if a judge issues a warrant authorising X to use a listening device, is that a ground for apprehending possible views by that judge as to the credibility of the person so named?

MR BERMAN: In my submission, no. All the application is that a named person wear a listening device. That person could be a person of the highest standing in the community or it could be a person with a lengthy criminal record for dishonesty. There is no assessment of the credibility of the person who will wear the listening device. Perhaps there is some assessment of credibility of the person making the application but no assessment of the person who is simply the packhorse - if I can use that expression - to wear the listening device. My instructing solicitor further reminds me that the application for the listening device was not in the matter involving this applicant, it was in the matter involving this applicant's brother, Mr Seyfarth, so getting back to my earlier point, even the name "Frugtniet" would not have prompted Mr Justice James' recollection.

So, in my submission, your Honour, there can be no reason or apprehension there was any bias on the part of Mr Justice James, given the nature of the proceedings in which he granted a listening device warrant, the fact that he was not making an assessment of Mr Dallimore and the fact that it was 41/2 years earlier. Unless your Honour wishes me to deal with the other - there are six other matters dealt with in the applicant's summary of argument. Does your Honour wish me to deal with - - -

HIS HONOUR: That is the only point that I must confess at present I am minded to give some credence to. But is there anything further you wish to add about that because I have not concluded my view about it, I must say?

MR BERMAN: The other matters?

HIS HONOUR: No, no, only on this question.

MR BERMAN: No, your Honour, no, not on the listening device matter. Those are my submissions. If it please the Court.

HIS HONOUR: One thing I should ask you, perhaps, before you resume your seat. Assuming that there is a challenge to the constitution of the court by reason of possible apprehended bias so far as the credibility of Mr Dallimore is concerned, is that itself a matter which ought properly to be considered by a Bench hearing the application for special leave to appeal, seeing that it touches the constitution of the Court of Criminal Appeal?

MR BERMAN: In my submission, not in this case because, although as a matter of principle the composition of the Bench is a matter of some importance, in this case it is not because of the lack of any reasonable apprehension that affected the outcome. In another case where it did affect the outcome or there was a possibility it affected the outcome, that may be a more suitable vehicle. But in this case where the result would, in my submission, undoubtedly have been the same, had the application been made for Justice James to not sit on the matter, it is entirely possible it would have been refused, given what I was raising earlier. Those are my submissions.

HIS HONOUR: You can see the point that is concerning me.

MR PAPAS: Yes, your Honour, three points. Firstly, I was very careful to say "apprehended bias", your Honour, and "possible apprehended bias" and if your Honour will permit me to use the word "systemic" failure to the extent that the appearance - the way one dresses sometimes makes a big difference to the way one is presented and we all know how important appearances are in the system and the trite saying ,"Justice needs to be seen to be done". I have not got the precise passage available but in the main cases the emphasis, when one looks at the question of - - -

HIS HONOUR: It is the reasonable bystander test.

MR PAPAS: Correct.

HIS HONOUR: I understand that is the way you are putting it but what is the foundation for it, that is the point? If this application were successful, you would then have an application book being prepared. What would it contain in relation to this point?

MR PAPAS: It would contain - well, there is a need for material which was not before the Court of Criminal Appeal to be considered. Now, whether the proper forum is there or whether the proper forum is here is a matter that is not an easy - - -

HIS HONOUR: You can put that to one side for the moment because I can see that a Bench dealing with a special leave application could itself consider that question but at the end of the day the material must be directed to showing something. Now, what will it show?

MR PAPAS: The material would show that before his Honour in - it is an affidavit sworn in 1992 but I am presuming this happened - yes, November 1991, his Honour issued two warrants. He had an affidavit before him. He had a substantial statement before him which deals with Brent John Dallimore, a date, names of various police officers, the name "Frugtniet", because Mr Seyfarth also went by the name "Frugtniet", the five cheques that were subject of this conviction were listed in the material before his Honour, so whilst I made it very clear to your Honour that the product of the listening device is not the subject of the evidence - the evidence is not part of this proceeding. What went before his Honour was. References to - every page has a reference to "Seyfarth/Frugtniet" almost on the document that went before his Honour.

I do not know, and it might well be immaterial - because what I have now is a file that has been handed to me today which was the proposed material going before the Supreme Court for the review of the listening device warrant itself. Now, I am not sure whether Mr Vickery, who is a police officer who was the informant in New South Wales, actually gave evidence or whether he simply swore his statement. This document is a statement signed by Mr Vickery that I am referring to.

HIS HONOUR: What were the terms of the warrant? In what way could that material or the terms of the warrant affect a view that might be formed as to the credibility of Mr Dallimore?

MR PAPAS: All right. The material itself identifies history of Mr Dallimore's criminality. In a sense, that is not something that was not known to the Court of Appeal in any event but it clearly indicates the full history in some detail. The argument would go this way: a bystander would ask how a court could give an impartial assessment of a review point which involves assessment of credibility of a witness in circumstances where that court had formed the view that it was reasonable to accept a set of facts involving that same person. Now, that set of facts, earlier, involved prior convictions and criminality with Seyfarth, cashment of cheques, all sorts of various other things.

Now, the face of the warrant itself authorises a large number of named police - I will not go through them all, your Honour - "to listen to the product of a listening device being a tape recorder by which to record or listen to the private conversations of Brent John Dallimore, Edward Darrel Seyfarth, Jergon Hermann Schmalsteig and Monica Yasmen Seyfarth" at various locations "by attaching such device to the person of Brent John Dallimore".

One thing I have not raised, your Honour, and that is something that needs to be carefully considered before it gets taken much further but Mr Vickery gave evidence as well to the Court of Appeal. Now, I am not sure whether that was evidence that was of significance to the Court of Appeal but it might well have been something that was used when assessing the credibility of Mr Dallimore. I can certainly take your Honour to the passages in the Court of Appeal's judgment where his Honour Mr Justice James articulates why he is not satisfied with the fresh evidence of Brent John Dallimore. In other words, it is quite a complex interweaving of the function of a court of appeal when dealing with fresh evidence. The principles are clear enough and the principles, unfortunately, lead us to a conclusion that the credit issues are a vital one for a court of appeal.

HIS HONOUR: Is it the fact that the evidence of Mr Dallimore in the Court of Appeal all recanted evidence that he gave at the trial?

MR PAPAS: Yes.

HIS HONOUR: And the question was whether his recantation was to be accepted.

MR PAPAS: Correct, on the basis of the recantation.

HIS HONOUR: If it were accepted, would that have made a significant different to the trial?

MR PAPAS: Yes, your Honour. The applicant's contention was there was no case and I believe there might have even been some form of concession by the Crown but I do not necessarily hold the Crown to that. But, certainly, he was a vital witness, in my submission, to the - - -

HIS HONOUR: Mr Papas, I think what you need to do is to identify with some precision the material, if this application were successful, would go before this Court for the purpose of considering this question.

MR PAPAS: Yes, your Honour. It would be, of course, the judgment of the Court of Appeal certainly - - -

HIS HONOUR: I appreciate all of the usual materials but this is the additional material which impugns the constitution of the Court of Criminal Appeal.

MR PAPAS: Your Honour, it would be a copy of or an original of two listening device warrants issued by his Honour in November 1991. There would be the supporting material that was before his Honour which, as I apprehend it, is an affidavit of a Robyn Patricia Selby who is notated as "Sergeant" but I believe she is a legal practitioner now; what I describe as a statement of Mr Vickery which it is said was before his Honour.

HIS HONOUR: I understand that. Now, how would this material be identified by you in order to get before the Court? By your client or you?

MR PAPAS: As I understand it, there is written material producing these documents from the authorities, be it the Commissioner of Police or the Attorney-General's Department, I am not sure which, which identifies these documents as being the documents that were before his Honour. Now, the practice of the New South Wales Supreme Court is not familiar to me but many superior courts do not keep records of these sorts of proceedings.

HIS HONOUR: Is there a record of the evidence that was given before the Court of Criminal Appeal?

MR PAPAS: Yes, your Honour, there is.

HIS HONOUR: And to the cross-examination, I take it, of Mr Dallimore?

MR PAPAS: Yes. I cannot say I have seen it. I have only pages of the transcript from the appeal but I am told there was a full transcript and one presumes - - -

HIS HONOUR: It is obvious that even if this application were successful, the preparation of the relevant appeal book is a long way from being ready.

MR PAPAS: Yes, your Honour, I accept that. Bearing in mind this man is not funded - - -

HIS HONOUR: I appreciate that.

MR PAPAS: I have agreed to assist them to the best of my ability but one needs to run a practice as well.

HIS HONOUR: As at present advised, if the material were such as to justify a consideration by a Bench entertaining an application for special leave of the question whether the Court of Criminal Appeal was properly constituted to deal with the appeal to that court, I would be minded to grant your application but I would need to be satisfied of that.

MR PAPAS: That is the material itself?

HIS HONOUR: That is right. There is no purpose in granting an application, then having this languish for another six months and then again, once more, a certificate of deemed abandonment.

MR PAPAS: Would your Honour permit me to approach Mrs Frugtniet to determine - what I was going to suggest to your Honour is to adjourn this application for a short time to allow an application book to be prepared and if that can be done, to return by the appropriate date disclosing the material and then we will have to make a final decision.

HIS HONOUR: I am conscious of the fact that you are engaged in this matter and that legal aid is either limited or non-existent.

MR PAPAS: Non-existent, your Honour.

HIS HONOUR: But it is also necessary to use some expedition so far as the work of this Court is concerned. What I am presently minded to do is to adjourn the application for a week or a shorter time if appropriate in order that the material which might be considered by a Bench, if special leave were being applied for, could be identified and some indication given as to the prospect of its being produced in an appropriate application book form, together with an indication of the likelihood of the application book being prepared in the usual way in relation to the usual materials. I am prepared to relist the matter on a day next week if counsel can agree on a day. If not, I will adjourn it for a week.

MR PAPAS: Our respective families will complain about our missing from our holidays but we - - -

HIS HONOUR: I understand that too.

MR PAPAS: Would your Honour grant a week to today? If that is suitable to your Honour, we will return here next Friday.

HIS HONOUR: Very well, adjourn it until 9.30 on 16 January.

MR PAPAS: May it please the Court.

HIS HONOUR: Thank you for your assistance. We will adjourn now.

AT 10.49 AM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 16 JANUARY 1998