Conca and ANOR v Permanent Trustee Company Ltd and ORS S46/1997 [1998] HCATrans 214 (12 June 1998)

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

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 JUNE 1998, AT 9.31 AM

Copyright in the High Court of Australia

______________________

MR J. BASTEN, QC: If it please the Court, I appear with MS S WINTERS for the applicants in all matters. (instructed by the Public Interest Advocacy Centre)

MR I.M. JACKMAN: If the Court pleases, I appear for the second respondent, Fanmac Limited. (instructed by Mallesons Stephen)

MR C.J. BIRCH: If it please the Court, I appear for the first and fourth respondents, Permanent Trustee and Permanent Custodians, in all matters. (instructed by Church & Grace)

MR A.J.L. BANNON, SC: May it please the Court, I appear for the third respondent, the State of New South Wales. (instructed by the Crown Solicitor for New South Wales)

MR A LEVIN: If it please the Court, I appear with MS A. ROSE, for the Co-operative Housing Societies Association and the other Societies named in the proceedings, that is the fifth and the seventh respondents in Bass; for the fifth, sixth and seventh respondents in Conca and the fifth and sixth respondents in Woodlands. (of Church & Grace)

Your Honour, in relation to Bass, we do not appear for the solicitors and I understand they make no appearance today. that is Markham, Geikie and Rumore.

HIS HONOUR: Yes, I will come back to that. The Registrar has been informed by the sixth and eighth respondents in the Bass matter, which is No S45 of 1997, and the eighth respondent in the Conca matter, which is S46 of 1997, that they will not take any part in the hearing of the appeals and will submit to any order of the Court save as to costs.

Now, gentlemen, the Court is anxious if at all possible to get this matter in the list for the September sittings but that involves getting it in order. Several matters arise and they are interrelated. The first one is that, as Justice Dawson emphasised when leave was granted, the Court is really granting leave to get involved in issues of construction and the particular question that arises at the threshold is the application for leave to reopen Bradken.

The second factor is that, in this Court, we cannot receive further material in the nature of evidence, not just as a matter of inclination, but as a matter of constitutional imperative flowing from the nature of the jurisdiction under section 73 of the Constitution and what was said in Mickelberg [1989] HCA 35; 167 CLR 259.

The next matter that arises is that the Full Federal Court was exercising, as I understand, original jurisdiction in respect of questions referred for separate decision and was doing so on an interlocutory footing. The orders produced would have been interlocutory orders.

The next factor that arises is that they seem to have had an agreed bundle of documents. It is not immediately clear on the face of things whether that was an agreement for the purposes of that separate decision, as I would have thought, or for some wider purpose. There seems to have been some anxiety by some parties that they are somehow locked into what inferences might be drawn from that bundle - locked in in the sense of bound at a trial, if one were to take place.

The next factor that arises is that it seems to me, depending on which way the Bradken arguments went, it might then be necessary to go back to the Federal Court in any event to reformulate questions 2 and 3 or, indeed, to replead. The last thing that occurs to me is that the last question is a rather separate - that is a section 109 argument as to the costs.

Now, with that in mind, I have prepared for your consideration some draft orders to try and get the matter in order. My associate will hand them out to you. I will go through them now and then I will adjourn for a few minutes to enable you to consider it and make any submissions then that the parties wish to advance.

Draft order 1 is designed to isolate questions of construction out of this material that has come up from the Full Federal Court. The first question does seem to be whether Bradken should be reopened. The second, that questions of construction which really arise, it seems to me, on the pleading and in former times would have been demurrer points, I suppose.

Now, it has been assumed in the preparation of draft order 1(b) that those particular sections are the ones that are relied upon and that they are in common with the three sets of proceedings. I am not entirely confident about that, but that is the intention and counsel had better check that that is so. And (c) is the costs argument, the 109 question.

Then there is the question of the appeal book and as has been indicated by the previous Chief Justice in directions hearings, the Court is greatly disinclined to get involved in these massive volumes. On the other hand, it may be that the judgment of the Full Court can only really be understood with the documents set out in the schedule, which are the trust deeds which are, in any way, particularised in the pleadings. So notionally they are part of it. What I take to be those trust deed documents are itemised in the schedule.

Then there is a separate question, in a way, which is this statement of agreed facts which seems to be vexing people. Now, you cannot, it seems to me, in the light of Mickelberg, for no other reason, bring an appeal here on the basis that these are the facts we would like you to assume here. What may be able to be done is what is put in 2A on the separate sheet. Now, unless the parties could agree in that formula, it seems to me there would be a difficulty in the Full Court taking on board an agreed statement of facts that had some other character to it.

It may also appear to the Full Court - and nothing I am saying is tending to bind the Full Court, obviously I could not do so if I wanted to - that really what I have set out in the draft order 1 are really the grounds that should be decided anyway and that it would be then for the Full Court to decide what should happen next with the litigation, whether further grounds of appeal which could involve looking at this statement of agreed facts as an essential factor, namely, for example, questions of estoppel and the so-called second limb of Bradken - the Full Court might decide to embark on that or it might decide not to. But the object of this is to ensure that the matter does get on in September and that at least - and there may be more to it - but at least the essential questions of construction and the preliminary threshold question of the status of Bradken are agitated.

So is there anything anyone wants to say about it now, because I will adjourn for a few minutes. All right. I will come back at 10 o'clock.

AT 9.42 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.01 AM:

HIS HONOUR: Yes, Mr Basten.

MR BASTEN: Your Honour, I think the short answer from the applicants' perspective is that we have no disagreement with the way that your Honour has put it. I note, in that respect, your Honour, that the schedule of documents which is included is actually somewhat shorter than the draft index that we have prepared.

HIS HONOUR: It is, yes.

MR BASTEN: But we are content with the approach that your Honour has adopted, but we are also content if there were to be certain other documents in which were in the draft.

HIS HONOUR: One question that does arise is the formulation of written submissions. Now, certainly the written submissions should deal with the construction issues that really turn on questions 1 and 5, I think. As to what would happen to the balance, that may only appear in the course, as you know, of argument. But I would imagine you would want to be ready with your written submissions dealing with the whole - - -

MR BASTEN: I could just about assume from the way that your Honour put it that we would need to do written submissions on each ground.

HIS HONOUR: Yes, I think that would be prudent.

Yes, Mr Jackman.

MR JACKMAN: Your Honour, we certainly agree that these are threshold questions which have to be decided before the High Court were to embark upon the hearing of the appeal itself.

HIS HONOUR: I do not know about the appeal itself; this is part of the appeal itself.

MR JACKMAN: Yes, the balance of the appeal. We are a little confused as to what the impact is of different answers to question 1(a), namely whether leave should be granted to reopen Bradken. On the one hand, if leave to reopen Bradken is refused, we assume that Mr Basten accepts that that is the end of the appeal against the non-State respondents. He might confirm that is his understanding. But if Bradken is reopened, then it will lead to a position where the High Court is answering questions which are different from the questions posed for the Full Federal Court.

HIS HONOUR: No, no; which are narrower than the questions, but within the question posed for the Full Federal Court.

MR JACKMAN: The Full Federal Court's questions are framed by reference to the agreed bundle of documents.

HIS HONOUR: I realise that. But is not the real vice of this litigation that question 1 would have been happier, in retrospect, if it had just said, "having regard to the matters pleaded in the amended statement of claim"?

MR JACKMAN: It may have been, except - - -

HIS HONOUR: Look, the State is either bound or it is not bound. What does that mean by the Trade Practices Act? It means can you get this relief for these alleged breaches?

MR JACKMAN: The problem, with respect, with that is that Crown immunity arises as a matter of defence, so it is not something which is obviously pleaded by the plaintiff or applicant. The material which goes to make up a claim for Crown immunity is that the government is acting in pursuance of governmental matters. One needs some evidence to establish that such as the Commonwealth/State Housing Agreement, the Executive Minutes which link that to the deeds, and the deeds themselves which constitute the Home Fund scheme. So one needs evidence of those matters in order to decide whether the Crown immunity can apply.

HIS HONOUR: That is apply in this case. It may never apply because of the construction of the Act, may it not? That is what they were doing in Bradken. If you look at the report in Bradken, that is what they were doing.

MR JACKMAN: Yes. That takes - - -

HIS HONOUR: What was before the Court in Bradken was some questions which were extracted.

MR JACKMAN: That takes into account the position of the State. Whether a non-State respondent which is an instrumentality or agent of the State - - -

HIS HONOUR: That is a different question.

MR JACKMAN: Yes. Looking at it from Fanmac's point of view, we need to establish that we are agents of the State and the State is acting in the context of governmental matters.

HIS HONOUR: That may simply not be susceptible of determination.

MR JACKMAN: That has been our point all along.

HIS HONOUR: You may ultimately win, but I cannot foreclose it. The question really is should this schedule be supplemented?

MR JACKMAN: We would wish it to be supplemented in two ways: first, we would want it to include the Executive Minutes of the State Government which draw the connection between its Commonwealth/State housing agreement and these deeds. They are minutes which authorise the entry into the deeds.

HIS HONOUR: Where is the reference to them?

MR JACKMAN: They are in the index to the appeal book. Item 30 is the starting point. Does your Honour have a copy of the draft index?

HIS HONOUR: Perhaps you could give me another one. You are holding on to it.

MR JACKMAN: I am sorry. The draft index at item 31 includes one, but it is incomplete and my instructing solicitors wrote a letter which set out - - -

HIS HONOUR: I am not getting into what Miss Ward wrote to somebody.

MR JACKMAN: No, but as a matter of principle we would want the Executive Minutes of the State Government to be in. We would also want to have included opinions, including an opinion of Sir Maurice Byers - - -

HIS HONOUR: What has Sir Maurice Byers' opinion got to do with anything?

MR JACKMAN: It is an opinion on which the State Government relied to the effect that this is a - - -

HIS HONOUR: You say they relied on it. How are we going to find that fact? That has never been found as a fact.

MR JACKMAN: No, it was not found as a fact by the Full Court.

HIS HONOUR: Well?

MR JACKMAN: They say nothing one way or the other about it, but it is one of - - -

HIS HONOUR: I assure you we are not going to get into that question.

MR JACKMAN: If that is so, it shows the inappropriateness of these questions going to the High Court at this stage.

HIS HONOUR: You may want to move, first off, to revoke special leave. I do not know. You may want to do that, but that is up to you.

MR JACKMAN: We will take that on board.

HIS HONOUR: The question is what documents, other than argumentative material like counsels' opinions, do you want to add to the schedule?

MR JACKMAN: The Executive Minutes to the State Government.

HIS HONOUR: Anything else?

MR JACKMAN: There are some other constituent documents as part of the scheme. There is a management agreement, for example, which has some relevance.

HIS HONOUR: Are they itemised in any place?

MR JACKMAN: In a letter - some of them are in the draft index to the appeal book and others are in a letter by my instructing solicitors to the solicitors for the appellants.

HIS HONOUR: How many are there?

MR JACKMAN: Three agreements and then the Executive Minutes.

HIS HONOUR: All right. They can be added. Do you dissent from that course, Mr Basten?

MR BASTEN: No, your Honour.

HIS HONOUR: Do any of your allies or those on the same side as you dissent from that course?

MR BANNON: We do not dissent, but I am not sure what the purpose of adding those additional documents are.

HIS HONOUR: I am not at the moment, either.

MR JACKMAN: It just depends how far the appeal goes, just what issues are really going to be before the High Court in the appeal. At the moment we just do not know. There has to be a point where the High Court has to stop and say, it is just not an appropriate vehicle to test these questions at this stage.

HIS HONOUR: You might be right about that.

MR JACKMAN: We just do not know how far things are going to get before that point is reached. So we want the appeal books to contain material which the High Court, on one view no doubt to be advanced by Mr Basten, would want the Court to get into.

HIS HONOUR: You had better, at some stage, like immediately, formulate the description of these documents so they can be added to the schedule.

MR BASTEN: Did your Honour indicate you did not have a copy of the draft index.

HIS HONOUR: Yes.

MR BASTEN: Perhaps I could hand up a copy of the draft index which the parties have been considering.

HIS HONOUR: But Mr Jackman said there were other things as well. That is what agitated me.

MR JACKMAN: That is right. They are set out in a letter dated 3 April 1998. Perhaps if I could hand that up. They are the documents we would wish to have included.

HIS HONOUR: Now, none of these in Mallesons' letter appear to be in the draft which Mr Basten handed up.

MR JACKMAN: That is right. The letter is directed to deficiencies in the draft index.

HIS HONOUR: Yes. What I will do - how soon can you get the draft orders retyped to expand the schedule to include these matters, Mr Jackman?

MR JACKMAN: Half an hour, I am told.

HIS HONOUR: I have heard that sort of thing before. What is the convenience of other counsel this morning. Have you got to be somewhere else?

MR JACKMAN: No.

HIS HONOUR: You have, Mr Bannon?

MR BANNON: Nothing that cannot be avoided. Can I just say this. I am not sure what the purpose of adding to the schedule is in this sense, that in so far as - leaving aside the additional order 2A - nothing additional in the schedule is needed for the purpose of the questions which are construction questions.

HIS HONOUR: That is what I would have thought, too. But I am reluctant at this stage, because I cannot bind the Full Court, to foreclose anything that might in truth eventually be open.

MR BANNON: I understand that, your Honour, but what concerns me a little is that in so far as there is an attempt to add any documents at all to the schedule, it should be a concerted attempt with a view - because it is irrelevant to the first limb questions, it should be a concerted attempt which looks wholly at all documents which may be necessary for the second limb and I am not sure that we should attack additions simply for the first limb. Now, maybe Mr - - -

HIS HONOUR: I cannot really see how one can get into the second limb on an hypothetical basis.

MR BANNON: No. It is a half demurrer case - - -

HIS HONOUR: That is the problem.

MR BANNON: And the reason Mr Jackman said it cannot be a pure demurrer case, but it cannot be anything other than a demurrer case in part because, as your Honour earlier was referring to, you have to know what it is, the conduct they are complaining about, to fit that into the particular formulation of the second limb, if it exists.

HIS HONOUR: Yes.

MR BANNON: So I was perhaps trying to shortcut the exercise of adding to the documents because if my friend is seeking to add them for the purposes of the second limb, I would say because it is not - - -

HIS HONOUR: He does not want the second limb agitated. He thinks Mr Basten may get a foot in and agitate the second limb and then he will be left short. That is what his concern is about.

MR BANNON: Yes. But as we see it, it may be a somewhat open question as to whether we go into the second limb at all and, if so, on what basis, which adding to some documents here may qualify the parties and the court's options, if those documents have only been added for the second limb.

HIS HONOUR: Yes, I understand that, Mr Bannon, which is very helpful, if I may say so.

MR JACKMAN: With respect, we see the force of that, that there is a danger in going into some of the evidence relating to the second limb, but only the tip of a large iceberg which, because of the way in which the case has proceeded to date, one cannot look at in totality.

HIS HONOUR: No.

MR JACKMAN: It would have the practical consequence that the Court would be limited to construction matters, but that may be all that can be achieved. It is certainly our submission that nothing further than that could be achieved in this appeal.

HIS HONOUR: Mr Basten's position is he cannot really get off the ground in his trial unless he knows what the standing of Bradken is. It is crucial to his clients' case. Only this Court can really solve that question, so every step should be taken that tries to facilitate that answer, without falling off the track into these other issues which may be more difficult and unsuitable at this stage.

MR JACKMAN: Yes.

HIS HONOUR: Do you still wish to add these matters?

MR JACKMAN: No, your Honour.

HIS HONOUR: All right.

MR LEVIN: Your Honour, if I may add something.

HIS HONOUR: Yes.

MR LEVIN: Perhaps a way to short-circuit the problems that have arisen is to really just have these questions decided as questions of law by reference to the pleadings and without even any of the documents in the schedule. That would - - -

HIS HONOUR: Yes, but you have not understood the pleading. The pleading particularises these documents. In the proper pleading system they would have been set out in full.

MR LEVIN: I see.

HIS HONOUR: Mercifully you do not have to do that any more. All one would have to say, the substance is reflected on the sample. That is why they are there, because they are particularised in the statement of claim and they are referred to in the Full Court judgment. One has to refer to the Full Court by knowing what they were saying.

MR LEVIN: That gives rise then to the other issue which I wanted to raise which was that one of the integral parts of the proceedings in so far as the Co-operative Housing Societies are concerned are their management and selling agreements, which is referred to at page 50 of the judgment at lines 14 to 21.

HIS HONOUR: Are they in the pleading?

MR LEVIN: I will have to check that. I believe that they are referred to in the pleading. They are the documents whereby the Societies - - -

HIS HONOUR: Just find it. I would not have thought they went to the Bradken construction question.

MR LEVIN: If the Court really is not going to consider the second limb, even if they are - - -

HIS HONOUR: You just see if they are in the statement of claim. Just take your time.

MR BASTEN: Page 10 of the application book, your Honour, in the Bass pleading, paragraph 18.

HIS HONOUR: Paragraph 18 of the statement of claim?

MR BASTEN: Yes, that is so.

MR LEVIN: It is in Bass.

HIS HONOUR: Yes. Why does one need that? It is not particularised.

MR LEVIN: There are equivalent paragraphs in the other pleadings as well: paragraph 19, for example, of the Conca proceedings - - -

HIS HONOUR: Yes, but they are not particularised.

MR LEVIN: Paragraph 19, page 35 of the appeal book. They are in Woodlands as well, I believe, your Honour. We would not seek to add any other - - -

HIS HONOUR: But there are no documents particularised.

MR LEVIN: I see. You are saying that it is just referred to.

HIS HONOUR: Yes. They are not real particulars. They may be, but they are not particulars of the calibre of paragraph 12, the particulars to paragraph 12, you see, which is very specific.

MR LEVIN: I accept that, your Honour.

HIS HONOUR: Mr Birch.

MR BIRCH: Your Honour, we do not have any problem with what is in the draft orders dealing with the construction question and I will not take up a lot of time because it might be that the Full Court does not proceed to the second limb issues, but your Honour's proposed order 2A obviously looks towards that possibility and the way that would be handled. We would still have a concern if some document of the sort contemplated by proposed order 2A were included, as to what its status would be in the event that there is a determination made using it and then there is a later trial in the light of that judgment. We originally had agitated - - -

HIS HONOUR: That is why I said when I came on the Bench this morning, these separate questions are interlocutory, are they not?

MR BIRCH: They were interlocutory but they were - - -

HIS HONOUR: Normally, when you make an order for this sort of activity, you would say these are the facts for the purposes of this particular interlocutory step and not otherwise. That is always the assumption. It was not done here.

MR BIRCH: No, it was not, but the parties spent a lot of time arguing about the approach they should take and in the end they chose to deal with it as a separate issue determination.

HIS HONOUR: Yes, I know they did.

MR BIRCH: And the result is that the determinations were made on evidence and they were final to the extent that they are capable of being final on those particular matters.

HIS HONOUR: They are not final.

MR BIRCH: What we do not want is to have, in effect, that finality to the extent that it exists - - -

HIS HONOUR: I know that, and that is why, if you are not happy with that last clause in 2A, you will not be agreeing any facts. That is all I can do.

MR BIRCH: Your Honour, if this is merely to contemplate a fresh possible agreement, then of course we do not have anything to say. We will just determine whether to agree or not.

HIS HONOUR: That is right.

MR BIRCH: It is not, as I read it, intended to affect the status of the document that is now being filed which will, in effect - - -

HIS HONOUR: That will not be before the Full Court.

MR BIRCH: Yes. Then we have no trouble with 2A.

HIS HONOUR: How long would it take to argue, a day and a half? I know that depends on what is argued. It would be more than a day, I think.

MR BASTEN: Yes, it would be, your Honour.

HIS HONOUR: Does everyone agree with that?

MR BIRCH: Your Honour, I think it depends entirely upon how far the Court goes into it. If it steps into the second limb - - -

HIS HONOUR: Yes, but I think even Mr Basten's point on section 64 of the Judiciary Act and the Crown Proceedings Act, they are not easy points necessarily.

MR BASTEN: We have had, I think, at this stage only one response to the 78B notice, your Honour.

HIS HONOUR: Yes, that is another factor.

MR BASTEN: One Attorney will be here, and I would have thought there might be others. New South Wales probably will not be, but - - -

HIS HONOUR: Which is the respondent - - -

MR BASTEN: South Australia, I understand.

HIS HONOUR: Yes. I think we had better say a day and a half. So in listing the matter for the September sittings the Registry will bear in mind an estimate of a day and a half.

MR BASTEN: Can I ask: there were two sittings in September, I think, one at the beginning and one at the end.

HIS HONOUR: The Court had in mind the first of those sittings.

I will renumber 2A as 3, 3 as 4, 4 as 5. The other thing I wanted to - are counsel confident that ground 2.1 is the same throughout the appeals? I think it is. Those are the sections in the Trade Practices Act we are talking about, are they not? As I understand it, the old 52A was repealed but it may have related to some events that occurred before its repeal so it is still in the ring, as it were?

MR BASTEN: That is so, yes.

HIS HONOUR: Section 163A is the section dealing with declaratory relief. I think that is probably involved. The warranties under section 74 stand outside the relief available in Part 6. I think for breach of the warranty in that division you just have your common law remedy, as I understand it.

MR BASTEN: Yes, I think that is so.

HIS HONOUR: So (ii), the remedies, et cetera, are really linked to - that is right, 51AB, 52 and 52A. Just before you sit down, Mr Basten, what will happen if the Court decides not to reopen Bradken?

MR BASTEN: There would be an argument, your Honour, in relation to - - -

HIS HONOUR: This is one of the things that agitates Mr Jackman.

MR BASTEN: Yes. There would be an argument that it was not necessary to reopen Bradken to determine whether or not the non-State respondents might be liable. Bradken looked at one aspect of that, I suppose, but we would say in a restrictive situation where there was a contractual an arrangement which was in dispute as between a State and a third party.

HIS HONOUR: You would have to go back and replead though, would you not, probably, I would have thought?

MR BASTEN: I think we intended not, your Honour.

HIS HONOUR: Bits would have to be struck out.

MR BASTEN: I see.

HIS HONOUR: Because Mr Bannon would depart the scene.

MR BASTEN: Yes. I would need to take that on notice, I think.

HIS HONOUR: Is one of your arguments that you do not need leave to reopen Bradken because there is another foundation?

MR BASTEN: Yes.

HIS HONOUR: What is the significance of your points about section 64 and the Crown Proceedings Act in relation to the status of Bradken?

MR BASTEN: If the operation of those provisions is as we say, then that aspect of the matter was not considered in Bradken but it would give rise to a different result. Whether, technically, that requires - - -

HIS HONOUR: There is a debate about whether you would need leave in that situation, I suppose. I do not know what the answer is.

MR BASTEN: Yes.

HIS HONOUR: All right. I think those points have all better be highlighted in the written submissions.

I have renumbered 2A as 3. I have renumbered 3 as 4 and 4 as 5. I make orders in accordance with the draft which I have initialled, dated and placed with the papers. Those orders have been made in each of the three appeals, S45, S46 and S47 of 1997.

I will now adjourn.

AT 10.30 AM THE MATTER WAS CONCLUDED