Fejo and ANOR v Northern Territory of Australia and ANOR D7/1998 [1998] HCATrans 221 (17 June 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D7 of 1998

B e t w e e n -

JIM FEJO and DAVID MILLS on behalf of the LARRAKIA PEOPLE

Appellants

and

NORTHERN TERRITORY OF AUSTRALIA

First Respondent

OILNET (NT) PTY LTD

Second Respondent

Application for Rescission of Order

GAUDRON J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 17 JUNE 1998, AT

Copyright in the High Court of Australia

MR J. BASTEN, QC: May it please the Court, I appear with my learned friend, MR R.W. BLOWES, for the appellants. (instructed by the Northern Land Council)

MR T.I. PAULING, QC, Solicitor-General for the Northern Territory: May it please the Court, I appear for the first respondent. (instructed by the Solicitor for the Northern Territory)

MR H.C. BURMESTER, Acting Solicitor-General for the Commonwealth: If it please the Court, I appear with MR G.J. LOUGHTON for the Commonwealth Special Minister of State seeking leave to intervene in the proceedings. (instructed by the Australian Government Solicitor)

GAUDRON J: Mr Basten, I think if you would commence again.

MR BASTEN: I see. Yes, your Honour. I was going to say I can now be heard and recorded, your Honour. Your Honours, I was answering a question, I think, but perhaps if I come back - - -

KIRBY J: Would you put on the record, perhaps the three points that you wanted to - - -

MR BASTEN: Yes. The first point that we raised was a concern that the removal, despite what the Territory now says, will preclude the appellants from pursuing a preliminary point, which no one suggests is unarguable.

GAUDRON J: Well, I might.

MR BASTEN: May I come to that, your Honour. I merely meant it had not been put against us in those terms. The second point was a related jurisdictional point which relates to the jurisdiction of the court below.

KIRBY J: That is the jurisdiction you invoked.

MR BASTEN: It is the jurisdiction we invoked but now - - -

KIRBY J: You are having second thoughts about.

MR BASTEN: - - - we resile from it, your Honour, and the fact that we invoked it cannot grant the court jurisdiction if, in fact, it did not have any. So, that is not an issue that we would think is to be determined against us on that.

GUMMOW J: I cannot understand how you resile from them?

MR BASTEN: We resile from - - -

GUMMOW J: How do you do that?

MR BASTEN: Well, we say that the principal relief - - -

GUMMOW J: Just by saying something.

MR BASTEN: Well, we would now concede that the principal relief sought in the application was not available and was not appropriate, but that does not mean that the interlocutory relief formulated as interim relief to preserve the property during the consideration of the application for a native title determination by the tribunal, would not have been available from the Federal Court and that was what we sought in the - - -

GUMMOW J: In aid of what primary relief?

MR BASTEN: In aid of no primary relief then before the Federal Court and if that means that our relief could not have been granted, then we concede that the consequence follows, but that suggests this is not an appropriate vehicle to test the issue which is now before the Court and we would take the consequences of that result.

GUMMOW J: That is the second point, is it?

MR BASTEN: That is the second point. The third point was the concern which I adverted to, that the issues and the number of interveners suggested that the Court would not be able to obtain the appropriate assistance on the oral argument on the 22nd, given that - - -

KIRBY J: That can easily be solved by the Court sitting on to the 23rd.

MR BASTEN: That may be so, your Honour.

KIRBY J: That is just a practical matter. I think that that is a matter that should be put out of account because the Court will just do what the Court always does, and that is hear the matter to conclusion.

MR BASTEN: I understand that, your Honour. The final aspect of that which I was putting - in fact, the one that I was answering your Honour's question in relation to - was that the matters which are now clearly intended to be agitated were not dealt with by the primary judge so that - and I understand the answer your Honour Justice Gummow gave - these are matters on which the Court has had no assistance in relation to judgments from courts below.

KIRBY J: Unfortunately, we are embarked on a journey where, in native title cases, there are quite complex matters of legal history and of statutory law going back to colonial times which have to be mastered, and mastered quickly.

MR BASTEN: Yes.

KIRBY J: The Court has had to do that on a number of occasions. There is nothing peculiar about this case, in that respect.

MR BASTEN: There is in the sense that the Court has had the assistance of judgments below except where it has arisen as a constitutional issue in the original jurisdiction of this Court. That is not to say that this Court cannot deal with it. I merely note it as an issue which has arisen since the last hearing. Might I come to the preliminary - - -

GAUDRON J: Yes, you could but if you would come to it in this context.

MR BASTEN: Yes, your Honour.

GAUDRON J: Once you seek relief, once you put your claim on the basis of relief in aid of what you say are your statutory rights, you are seeking discretionary relief.

MR BASTEN: Yes.

GAUDRON J: Prima facie, one would have thought that there would be no basis on which the discretion which would be exercised in your favour if it were the case that there was no native title.

MR BASTEN: Yes.

GAUDRON J: That is why I say the first point really is - it is a subsidiary issue. The two are not totally disjoined.

MR BASTEN: Yes. Might I answer that in two ways, your Honour.

GUMMOW J: You are seeking an interlocutory injunction in aid of some rights - and you say they are statutory rights - but an essential integer in the statutory right, because of the way the Act is drafted, is native title.

MR BASTEN: Your Honour, we do not accept that proposition. I accept that what I am putting to your Honour is not the terms in which the relief was originally formulated, but it is not technically, I think, interlocutory relief in the context that it is final relief in the sense that it is the relief sought in the proceedings, albeit it is relief for a limited period, namely, until the application before the tribunal has been determined.

GAUDRON J: But again, it is not - - -

GUMMOW J: In any event, it is injunctive relief, so there is a discretionary element.

MR BASTEN: It is injunctive. That is - I accept - - -

GAUDRON J: It is not relief to which you are entitled under the Act.

MR BASTEN: No.

GAUDRON J: Well, there is no express statutory entitlement to this relief.

MR BASTEN: Your Honour, there is no express reference to this relief. What we say is that the Federal Court has jurisdiction under the Act to deal with issues arising. One issue is whether, in the terms adopted by this Court in North Ganalanja, the Act itself preserves the status quo pending the determination of the native title application. What we say in answer to your Honour's - - -

GAUDRON J: Let it be assumed that it does. You are still asking for discretionary relief.

MR BASTEN: The question would be: what are the relevant matters which can be considered in relation to that discretion?

GAUDRON J: And the fact that you cannot obtain a declaration of native title at any stage, if that be the case, is surely relevant, as is also the fact that, if you are right, then there are various statutory consequences.

MR BASTEN: No doubt that is so, your Honour.

GUMMOW J: If you are right on your substantive argument on native title, I guess you should have your injunction. That would follow.

GAUDRON J: Yes, and the other side of the coin is that, if you are right, you would almost certainly get your injunction.

MR BASTEN: Yes, but it does not follow that if we are wrong that matter should be determined at this stage or that it is relevant to the question of whether or not we get the injunction because - - -

GAUDRON J: I would have thought it was highly relevant to a question of discretionary relief, unless the practice of equity has been turned on its head in the last 10 years.

MR BASTEN: Your Honour, the practice in equity, in our submission, is not relevant where it is not an application to the Court to preserve the status quo, but it is an application to the Court to give effect to a statute which preserves the status quo.

GUMMOW J: No, the legal right you claim is a statutory right.

MR BASTEN: Yes.

GUMMOW J: You are still invoking the inherent equitable jurisdiction. It cannot be anything else. A definition is not in the statute. An equity picked up some statutory rights and gives them protection. That is all it is. You are still in equity but you have to get an injunction.

MR BASTEN: I do not doubt that. I am really saying it is not a relevant consideration, I think, not that we are not invoking a discretion.

GUMMOW J: That is standing things on their head.

MR BASTEN: What I wanted to put to your Honours in relation to what was said in North Ganalanja is the discussion - and your Honour Justice Gaudron is accepting, as I understand it, the first part of the proposition, namely that one has a statutory right to preserve the status quo. What we seek to do is to enforce that right. Now, what the Court said in North Ganalanja at page 617 - - -

GAUDRON J: There may be a question whether that accurately describes the statutory right. The statutory right may be that if native title exists, then the status quo is preserved.

MR BASTEN: That is an arguable point which we would say we are entitled to argue, and we would be precluded from arguing were this matter to go ahead on the other ground, because if this Court is correct in saying that to submit a claim for determination of native title to judicial determination before the stage of negotiation is reached - and we would add for these purposes, of course, and complete - is to invert the statutory order of disposing of such claims.

GAUDRON J: Even if you are right in that, you have still got to face the question of the discretionary nature of the relief that you seek, to which it would be relevant - it would be decidedly relevant to know whether, at the end of the day, there was any prospect of success in your claim; any prospect of your claim being upheld.

MR BASTEN: Your Honour, we say that that is not the statutory scheme. My first point was that it is recognised in North Ganalanja that that is not a matter which should properly be open to judicial determination before the negotiations have been completed. That is why we would say the Court should not have entered upon that proposition - - -

GAUDRON J: But you asked the Court for injunctive relief.

MR BASTEN: At the stage when all we are seeking to do is to assert that the Northern Territory lacks power because of the operation of the Native Title Act to make the grants which it is seeking to make, and we seek to injunct it on that basis.

The other part of the answer is that the Native Title Act itself gives the function of determining whether or not a claim is arguable, not in those terms but substantially to that effect, to the Registrar and President of the tribunal, when they have to consider under section 63(1) whether to accept it. The test is that the Registrar must accept it unless he or she is of opinion that the application is frivolous or vexatious, or that prima facie, the claim cannot be made out.

KIRBY J: Why does not the second head give rise to the question which would be ventilated on Monday?

MR BASTEN: It does not because that decision has been made within the statutory framework and no appeal or review has been taken of that decision. It is not suggested that that decision to accept the claim made by the Registrar was wrong as a matter of law, or on any other ground available under the Judicial Review Act.

GAUDRON J: But your invocation of the jurisdiction of the Federal Court for discretionary relief, in a sense, brings that issue with it.

MR BASTEN: With respect, we say it does not, your Honour, because that ignores the fact that the donee of the power to determine that issue is the Registrar, and if the Registrar has exercised the power and made a determination which is not challenged in this Court - - -

GAUDRON J: If you say that, there may be a more fundamental question as to whether there was any right to any relief in the Federal Court.

MR BASTEN: That may be so, your Honour. I accept that.

GAUDRON J: But you invoked it and did not - - -

MR BASTEN: We relied upon the determination of the Registrar to accept our claim on the basis that the statutory test had been satisfied. There was no challenge to that in the Federal Court, and on that basis we say it is not open to my friends to seek to raise by a back door for determination something which the Federal Court cannot determine. The determination which I might say would be made in this Court is a different determination. As your Honours may be conscious, section 13 of the Act differentiates between approved determinations of native title and other determinations. An approved determination of native title could not have been made by the Federal Court in these proceedings because an approved determination of native title could only be made by the Federal Court upon a referral by the Registrar under section 74 of the Act. But this Court is now being asked to determine whether or not native title exists in relation to this land - - -

GUMMOW J: No, we have removed ground 1 of your supplementary notice of appeal, Mr Basten.

MR BASTEN: I accept that, your Honour. If this Court holds that the primary judge was correct, then that constitutes a determination that there is no native title existing in relation to this block of land, and that determination is an approved determination pursuant to section 13(7), something which the Federal Court simply could not have made. So that the very fact of removal is giving this Court a power to make a binding judgment in rem which the court below could not have made.

KIRBY J: Would you be precluded in your submission from advancing this argument before the Court on the return of the matter that has been brought up to the Court?

MR BASTEN: Well, that is the matter which concerns us, your Honour. That is why I indicated at the beginning that we thought we should bring it back to this Court in this form because we - - -

KIRBY J: It is proper of you to raise it if you have concern about it, but what I am asking is: is it your submission that, when the matter is returned next Monday, you would be precluded from raising the arguments that you are now advancing to us?

MR BASTEN: Well, if the matter is to go ahead on next Monday, our secondary position is that we would be granted leave to raise these matters and, apart from the time constraints, we would be happy to approach it on that basis.

KIRBY J: The position is, according to Mr Burmester's submission, there is no record that the Commonwealth can find of the Court taking the course it has of revoking or rescinding that. Now, that does not mean that it cannot be done for the first time but, having gone to the trouble of doing that we have done and for a very obvious reason, prima facie the matter should sail ahead next Monday unless in some way the Court or you are prejudiced. Now, as to the Court's prejudice, we can simply accommodate our list. As to your prejudice, I cannot see a prejudice to you in advancing these arguments and perhaps in urging on the Full Court what you are now urging upon us, unless you can suggest that in some way the Full Court would be precluded from providing you with relief against the submissions that you are now putting to us.

MR BASTEN: We would obviously be putting a submission that the Full Court having considered the preliminary points should not go on and deal with the other point, but that is a matter which the Court could obviously take on board. The only other prejudice that would occur would be that the submissions that are prepared for the Full Court do not expressly address these issues because they are not contained in ground 1. If we had leave to have the written submission which is now before this Court referred to the Full Court and, perhaps, leave to file a supplementary submission in relation to the jurisdictional argument, I think the short answer is we would not be prejudiced, your Honour.

KIRBY J: Speaking for myself, I think you should have the entitlement to advance whatever arguments you wish to advance and if it turns out that this is not an appropriate case in which to resolve the fundamental question which it appeared when the matter was last before us, then the Full Court can quite easily deal with that problem.

MR BASTEN: I accept that, your Honour. It was the fact that this Court had made the distinction.

GUMMOW J: Look, we made an order, Mr Basten. If you want to move the Full Court to remove something else, you do so.

MR BASTEN: Yes. That was the - - -

GUMMOW J: At the moment, you are trying to change this order.

MR BASTEN: I appreciate that, your Honour.

GUMMOW J: Right.

MR BASTEN: If I sought in the alternative to have questions 2 and 3 removed then that would have the same consequence.

GUMMOW J: No, it would not. The Full Court might just decide ground 1, but send 2 and 3 back.

MR BASTEN: No, no, no. I mean if that were granted it would have the consequence to which Justice Kirby is adverting, your Honour.

KIRBY J: May that not be a matter which you should be ready on notice to the other parties or any interveners that you are aware of to move the Full Court along these lines.

MR BASTEN: Yes.

KIRBY J: In a sense we have done our task. We have dealt with the matter on the basis on which it was argued. We heard your submission and I think two of the three matters that you are urging upon us today, you did not submit to the Court at the time.

MR BASTEN: I probably did so, but inadequately, your Honour. I think my friends would say that the matters were raised before but not in detail.

KIRBY J: I do not remember issue number one and I certainly do not remember issue number three being raised.

MR BASTEN: Well, I do not think, perhaps, in the present terms, they were, your Honour, I accept that. But, it was in the context - - -

KIRBY J: Well, the list is fixed; the issue is great and important; the question, in a sense, is fundamental to your case on one view of the matter. It strikes at the very heart of your case. It is a sort of knockout point and if it is good, then it knocks you out. It is an entitlement of the other parties to have that matter determined on the face of things. You might well be able to establish some reason why it is not but at the moment, I think, that is a matter for the Full Court into which this matter has been referred.

MR BASTEN: Yes. Well, I do not wish to dissent from that approach if it is open to us to raise these matters before the Full Court, either by way of preliminary matters or by way of removal of the other grounds, but as I said, I thought it appropriate - - -

GUMMOW J: The only matter at the moment before the Full Court is ground 1.

MR BASTEN: I appreciate that, your Honour.

GUMMOW J: If you want something else to be before the Full Court, you have to take some steps. It is up to you.

MR BASTEN: Well, we can file a notice of motion to remove other matters but we thought that the way to do it was to see if we were entitled to argue those matters and we brought it back here for that purpose.

KIRBY J: Can I just understand your point about the Waanyi Case: is your point, it may often be and indeed, will usually be, that the determination of whether in law there is native title is a very complex matter and that the whole point of the Waanyi Case was that that matter, (a) is a matter for the Native Title Tribunal and (b) is not a matter, always, readily susceptible to a knockout; it is a matter that should be determined a bit further down the track. Am I understanding correctly what you are putting?

MR BASTEN: In substance, your Honour, yes, and indeed, Justice McHugh in one, you said that even if the claim were without merit, it should nevertheless go through the statutory process and not be subjected to judicial determination before that stage were reached.

GAUDRON J: Yes, but what is being subject to judicial determination is your application for an injunction, which is a different matter.

MR BASTEN: Yes.

GAUDRON J: That aside, however, as I read the ground that has been removed, your ground 2 in the supplementary notice of appeal, I do not see why it does not encompass the point that no holding should have been made at all.

MR BASTEN: But it is not ground 2, your Honour, it is ground 1.

GAUDRON J: I am sorry, I am looking at ground 2 of the order.

MR BASTEN: I am so sorry.

GAUDRON J: No, it is my mistake. The ground that has been removed is this: the learned trial judge in holding and so forth and so on. Now why does not a ground expressed in "erred in holding" include the point that he should not have made that holding at all, which is really the point you are making?

MR BASTEN: I accept that on one view that is so. My concern was that this Court in removing that ground had expressly declined to remove two other grounds which formed the basis for that challenge, and therefore obviously we did not assume that we were entitled to argue the other points. If we have leave to argue those points in relation to this - - -

GAUDRON J: Well, I do not know whether you have leave or not. It is a matter for the Full Court but it seems to be at least arguable on that view, although you keep skating away from the fact in all of your arguments that what was being determined was your application for injunctive relief and it was being determined on the basis of a particular finding.

MR BASTEN: Technically, your Honour, it was a strike-out motion of the respondents.

GAUDRON J: Yes, you are quite right. On one view it may be that the matter should not have been struck out, but the matter should go back to be determined whether on discretionary grounds your application should be refused. That is certainly a matter left open.

MR BASTEN: Yes. Well, your Honour, if those matters are available to be argued then - - -

GAUDRON J: It is a matter for the Full Bench.

MR BASTEN: It may be, your Honour. The question at this stage is - - -

GAUDRON J: I think you have to think the matter through on the basis of your application.

MR BASTEN: Yes.

GAUDRON J: Whereas you keep putting it in terms of the application to the Native Title Tribunal. It is your application to the Court.

MR BASTEN: Your Honour, the matter proceeded on the basis that there was no amendment to the application to the court when it came before the primary judge, but the relief sought before his Honour was formulated in specific terms and his Honour addressed that formulation. Strictly speaking, the application should have been and perhaps should now be amended, but that is a matter which - - -

GAUDRON J: Is it clear that at first instance the trial judge was proceeding, not on the basis of relief pending final determination of your claim for principal relief, but on the basis of your claim for relief in support of your statutory rights.

MR BASTEN: We would say yes, your Honour, because at page 86 of the appeal book his Honour made it clear that he was not determining the question in relation to the relief - I think it is a discussion at page 86 where the Territory submitted at line 5:

that this court did not have jurisdiction to grant the substantive relief -

his Honour then considers that at lines 10 to 15, notes that there was:

filed ancillary proceedings in this Court seeking injunctive relief to preserve the interests that were the subject of the claims in the native title application. In each case the Court heard and adjudicated upon the application for injunctive relief upon the premise that no issue of jurisdiction was raised.

And it is that, as we understand his Honour's judgment, which he then proceeded to do.

GUMMOW J: But what his Honour was dealing with, on the one hand, was your motion, was it not, set out at page 78, line 20?

MR BASTEN: Yes, I think that is right, your Honour.

GUMMOW J: On the other side of the coin, there is the strike-out motion.

MR BASTEN: Yes.

GUMMOW J: A strike-out motion saying in effect that the principal proceeding had no prospect of success because there is a great legal defect.

MR BASTEN: But on two bases. One was that there was no jurisdiction in the Court to entertain it in the original form of the declaration sought. That we accept. The second was that the injunctive relief, presumably, as formulated in the notice of motion of 13 February should not have been granted because there was extinguishment, and that could be established on the material before the Federal Court. So, there were the two issues before the primary judge.

KIRBY J: Can you tell me - I regret I have not seen the written submissions - are there interventions by Attorneys-General other than the Commonwealth?

MR BASTEN: For every mainland State, and two interventions for the - - -

KIRBY J: How long do you estimate that your submissions will take?

MR BASTEN: Well, your Honour, we will comply with the direction of the Court. The initial direction of this Court is that everybody's submissions be accommodated within the day and Mr Pauling and I have been having discussions to come to some agreement about how to allocate that time.

KIRBY J: Those discussions have included the interveners as well?

MR BASTEN: Yes, your Honour.

GAUDRON J: Is anybody intervening - - -

MR BASTEN: I am sorry, the interveners may or may not have been included in the discussions. I have spoken with Mr Pauling, but we understand that the allocations - - -

KIRBY J: Mr Pauling is a member of that club, so he is probably speaking to the other interveners, one hopes.

MR BASTEN: Workshopping, he says.

KIRBY J: A very exclusive club.

MR BASTEN: Yes. I have not spoken to the other interveners who support our position, but as I understand the proposition he is putting forward, the time is allocated according to the sides of the issue rather than the numbers of parties involved. So, we will have the morning and a period for - - -

KIRBY J: It would be a pity, in a sense, the major issue being what was expected to be argued, if a lot of time were spent on this preliminary matter as happened in the Waanyi Case.

MR BASTEN: Yes, well we would be happy to prepare a written submission going to the other matter and file that as a matter of urgency which would, of course, assist us in limiting the time we would need to spend addressing it. Mr Pauling has put something of a response in already and the interveners may or may not be interested in that aspect of the matter.

GAUDRON J: That might be an appropriate course in the event that you are going to - if you are going to argue either that the grounds does include the argument that you wish to make or you are going to seek leave to raise that matter then you, of course, should file the written submissions to that effect and questions of time can then be further agitated, I imagine, before the Full Court.

MR BASTEN: If your Honour pleases.

KIRBY J: It does not seem likely that this is a matter that will proceed immediately to an extempore judgment.

MR BASTEN: I think not, your Honour.

KIRBY J: Therefore if the parties have put their written submissions in the alternative, the Court will just have to weigh those when resolving all of the issues before the Court.

MR BASTEN: If your Honour pleases, yes. We would be content to take that course if that is the course which the Court believes appropriate.

GAUDRON J: I think that might be the best you can reasonably hope for, Mr Basten.

MR BASTEN: If that is as good as it gets I will accept that, your Honour. Thank you.

GAUDRON J: Thank you. Do you need to address us at all, Mr Pauling?

MR PAULING: Only to say to your Honours that I have spoken to the other club members and, your Honour, we have reached what we think is an extremely generous arrangement so that Mr Basten gets as much time as he can. Can I hand up a schedule I have prepared in association with the Senior Registrar?

Can I just say two other very short things? The first is that if Mr Basten has not yet realised it, it is the position of the Northern Territory that the first proposition he puts is indeed unarguable, that is the mere acceptance by the Registrar of an application for the determination of native title has the effect that a government is disenabled from doing anything with that land until such time as a referred matter has been determined by the Federal Court. We say that is a nonsense and there is nothing to support it and we have said it in writing.

The second point is that, to the extent that it is said that the issues in this matter are complex and various, the matters to deal with the letters patent are all done in writing by the Solicitor-General for South Australia and, also, the New South Wales Solicitor-General and, really, they do not need any addressing orally. The other point is the issue of authority from other jurisdictions has all been dealt with in writing. It was dealt with in Wik in 15 minutes, as your Honours would recall - Mr Selway did it then - and that will not take up any time. So that, this is really a very simple, fundamental matter that can be addressed in accordance with that timetable.

KIRBY J: Well, it may be fundamental. I question whether it is simple, given that just the analysis of the Wik decisions, and the different foundations in the majority, may take a little time to find out the principle. This has got to be done carefully and properly. It is a very important issue for our country, and for the law.

MR PAULING: I am not suggesting otherwise, your Honour, but what I am saying is that on a proper analysis one finds that all nine justices of the court who have had to consider the question of freehold and its effect on native title have all been of one voice.

KIRBY J: But they are dicta. They were not required for the decision and in order to attack the issue you have to, as it were, find the holding that lies at the heart of the different principles that have been expressed and, sadly, they are expressed in separate judgments and, therefore, they have to be analysed very carefully, I think, but a lot can be done in writing, so we will just have to hope that we can stick to this timetable. You appear to have left a very short time for the welcome to the new Chief Justice.

MR PAULING: I am sure his Honour, if he wishes to extend the time, would - - -

GAUDRON J: Yes.

KIRBY J: It is not him, but the eloquence of the Bar and their enthusiasm and their welcome of him that I am concerned about.

GAUDRON J: As we have already indicated, there may perhaps be some flexibility. Counsel should strive to comply with it but, if it proves impossible, there may be some flexibility.

MR PAULING: I might say the only reason I mentioned the welcoming ceremony for the Chief Justice was so that persons would know to get their material into the Court before 10.00 rather than before 10.15.

KIRBY J: Good thinking.

GAUDRON J: Thank you, Mr Solicitor. You do not wish to say anything, Mr Burmester?

MR BURMESTER: I need to say nothing, your Honour.

GAUDRON J: Mr Basten, you have heard the discussion. I think the appropriate order is simply to dismiss your application and reserve the costs or make them costs in the cause. Does counsel wish to say anything on that?

MR PAULING: No.

MR BASTEN: No.

GAUDRON J: Well, we will make them costs in the cause. So the application will be dismissed and the costs of the application will be costs in the cause. The Court will now adjourn.

AT 10.15 AM THE MATTER WAS CONCLUDED