South-West Forest Defence Foundation Inc v Executive Director of Department of Conservation and Land Management and ANOR P31/1997 [1998] HCATrans 90 (1 April 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth Nos P31 and P32 of 1997

B e t w e e n -

SOUTH-WEST FOREST DEFENCE FOUNDATION INC

Applicant

and

EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT

First Respondent

THE STATE OF WESTERN AUSTRALIA

Second Respondent

Office of the Registry

Perth No P33 of 1997

B e t w e e n -

BRIDGETOWN-GREENBUSHES FRIENDS OF THE FOREST INC.

Applicant

and

EXECUTIVE DIRECTOR OF THE DEPARTMENT OF CONSERVATION AND LAND MANAGEMENT

First Respondent

THE MINISTER FOR THE ENVIRONMENT

Second Respondent

THE STATE OF WESTERN AUSTRALIA

Third Respondent

Applications for special leave to appeal

GAUDRON J

McHUGH J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON WEDNESDAY, 1 APRIL 1998, AT 2.21 PM

Copyright in the High Court of Australia

MR J.T. SCHOOMBEE: May it please the Court, your Honours, I appear with my learned friend, MR G.M.G. McINTYRE, for the two applicants in all three matters. (instructed by M. Bennett, Solicitor for Environmental Defender's Office of Western Australia)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia: May it please the Court, I appear with my learned friend, MR R.M. MITCHELL, on behalf of the respondents in each of the matters. (instructed by the Crown Solicitor for the State of Western Australia)

GAUDRON J: Yes, Mr Schoombee.

MR SCHOOMBEE: Your Honour, these matters come before you on special leave applications but also to deal with the substantive argument in terms of the orders made when the matter came first before three Judges of this Court. After the first appearance we have in terms of the directions there made filed a document entitled "The Applicants' Submissions as to why leave to amend was not availed of", which explains why, although we had leave to amend on one point after the Full Court's judgment, we did not go ahead and amend. Very shortly, we could only plead new facts and the licences under the Export Control Act had changed conditions and the main condition we relied on, that you could not log without special permission in national heritage areas, that condition had been changed in the then current licences. So we have filed a document. As a result of the fact that we did not avail ourselves of the leave, as it were, on that one point, judgment has been entered into against my clients in all three matters.

I envisage dealing with all the matters except the specific facts in the Kerr-Hester Forest matter and the question of the fauna provisions of the Wildlife Conservation Act and the natural justice point. The latter only arises in the Kerr-Hester case, and my learned friend, Mr McIntyre, will deal with those. Further by way of introduction, your Honours, the issues before you really fall into two categories in terms of the question stated by his Honour Justice Toohey, namely, firstly, in the category of questions of law, where we have agreed before this Court that those questions of law are to be answered on a demurrer approach.

GAUDRON J: When you come to deal with them specifically, I would be assisted if you could relate them to the pleadings.

MR SCHOOMBEE: Yes.

GAUDRON J: Yes. Thank you.

MR SCHOOMBEE: I may say that we have drafted our outline of submissions in a way where we have actually set out the questions, so when I come to that I will refer you to - - -

KIRBY J: There are so many questions. I feel I am back in a practice list. I have never seen the High Court deal with so many practice questions.

MR SCHOOMBEE: Your Honour, I do not know whether I can plead mea culpa to that, but it was the other side's draft that went forward.

KIRBY J: It seems to be some fetish of Western Australian practice to have all these separated questions and then to answer them instead of dealing with it in another way.

MR SCHOOMBEE: There was some debate about that.

KIRBY J: I hope in some way - and it will be the skill of counsel to make it simple and tender some high questions of principle, because otherwise I do not see why this Court should be involved in practice matters.

MR SCHOOMBEE: Yes. We certainly say, your Honour, that the case does raise very important substantive issues and that that is the way into the case rather than simply looking at the pleadings and trying to deal with matters of pleading points. There are some matters that are perhaps in the category of approaching the trivial, such as the ministerial consent as a pleading point.

KIRBY J: I mean, I have read the material that has been sent but I have swimming in my mind so many tiny facts. There are some large questions that seems to emerge from them, but I do hope that you can help me at least to - - -

MR SCHOOMBEE: I am certainly willing to undertake that task and hopefully I will be able to do so too. So the questions of law that have been put up are put up on a demurrer basis, unlike the matters that were before the Full Court, where we were arguing on a strike out. So it was simply a case, we say, on questions of law as well, whether the matters were arguable or not.

GAUDRON J: Why has that position changed?

MR SCHOOMBEE: I will explain briefly. The reason for that was, with respect, the suggestion or the point raised by his Honour Justice Kirby in this Court, so if you came before the - on special leave the issue was raised, "Well, what will the High Court be looking at?" We said that if we get special leave to go the High Court then we are willing, as I put it, to fight it on a demurrer basis; in other words, for the Court to determine the questions. It was on that basis that the hearing of the special leave and, as it were, the full substantive hearing were rolled in together. The suggestion was also put up at that hearing by the learned Chief Justice that we should concentrate on the substantive issues and that is why your Honours would have noticed that the questions dealing with what the Full Court did and did not do in their treatment of the material has been shifted to the end, perhaps as a small recognition of the point raised by - - -

KIRBY J: It may have been shifted to the end but it is still there.

MR SCHOOMBEE: Yes. I will give an undertaking I will deal with it very briefly, if necessary. The situation is that we have been struck out, we have had judgment entered against us and we say it is not simply a case dealing on pleadings, although certainly from our perspective we say that the other side is trying very much to do that. We say, then, that there are, apart from the questions of law there are also, on the questions stated, issues of pleading arising in the way of whether a court could at trial grant the relief on the pleadings. So that really asks the question whether it is open for, or would be open for a trial court, and of course there the test would be whether it is arguable. We would say, in general, to those points that they are not pleaded in an arguable way at all and it is not for, with respect, this Court or any court to pre-empt what a trial judge may do, for instance, in relation to the relief granted. These are points that have been raised in the strike out by the other side and that is why they are before this Court.

One of the matters that raises a legal issue that is still on the basis of an arguable case - and I just flag that, because that is, in a sense, the exceptional point on the legal issues is the question of the respondent as appellant, that is their cross-appeal seeking to raise the question of standing. There, they need leave from this Court to do that, and that has been raised as a matter of whether standing is arguable. I intend to say, at the close of my submissions, something very briefly about them.

Before turning to elucidate aspects of our argument as set out in our written submissions, can I perhaps just signal to the Court what are the areas of concern before the Court. The first concerns the interpretation of the Conservation and Land Management Act, the CALM Act, and whether that imposes a duty upon the relevant department, CALM, Conservation and Land Management, to comply with the management plan that has been promulgated - made under that Act. That is the first main issue. A related issue to that is, what we argue really, in essence, as a fall back position, we say if it does not create duties per se, then that management plan at least creates in public law mandatory relevant considerations.

The third area concerns another Act, the Environmental Protection Act. In terms of that Act CALM, for their logging, had to put up a proposal that had to be vetted in an environmental context. When they received the ministerial permission to go ahead with this logging proposal, conditions were imposed under that Act. So the third substantive area raises the question of breach of those conditions.

The fourth and fifth areas deal with the construction and application of the Wildlife Conservation Act. That is the Act in Western Australia that protects rare and endangered flora and fauna. The question is whether that Act binds the Crown and, specifically, the Crown-related parties before Court. Why that is put as two questions is because the Act says explicitly that it binds the Crown in relation to flora but there is no such explicit provision in relation to fauna.

If I may just pause there for a moment before moving on to the last point, the position is that the respondents have consistently denied that they are bound by any of these provisions or, in any event, bound in any way that it could be possibly enforceable against, even where the Wildlife Conservation Act binds the Crown in respect of flora. I said in one of the earlier hearings that they are like the Stuart kings of old, they say, "We are not bound by anything." Mr Robert Cock, who appeared then for the other side, did not demur to that.

KIRBY J: I think that is a little unfair to the Stuart kings. Once Charles II came along he was quite happy to conform to the law of the land, his father having lost his head for that reason.

MR SCHOOMBEE: Yes. Maybe if some heads were to roll here, in a metaphorical sense, then the analogy would be more complete.

KIRBY J: They may indeed.

MR SCHOOMBEE: The final point which arises in the Kerr-Hester Case concerns the application of natural justice. CALM has given undertakings that before they will log areas they will consult the community. In Kerr-Hester the local environmental organisation, the Bridgetown-Greenbushes Friends of the Forest, say that they were not consulted. The issue that arises there is whether, when you are talking about community consultation and undertakings given in that regard, whether that can extend to a community organisation or whether you are only looking at individuals.

KIRBY J: Are there any, as it were, issues which are central to the holdings of the Full Court that could be isolated under these headings, apart from all the questions that have been reserved to us, which would tender for decision issues which we could resolve as matters of principle so that the Full Court could then, as it were, deal with the remaining matters for themselves? I cannot imagine the Supreme Court of Canada or the Supreme Court of the United States sitting in a matter of this kind. I cannot imagine it.

MR SCHOOMBEE: Your Honour, certainly we would say that there arise, dealing with the special leave aspect of it, it does raise very fundamental issues affecting the administration of a very important natural resource in Western Australia, and there are similar regimes in the rest of Australia. That is a point we have set out in our special leave application, the heads which are before you in the book - - -

KIRBY J: Are there some - I mean, clearly the standing issue is a knock out point for the respondents.

MR SCHOOMBEE: Yes, yes.

KIRBY J: Are there some knock out points for you that can be isolated as matters of principle that would be - and I hope I do not sound pretentious in saying this - appropriate to a decision of the highest Court of this country?

MR SCHOOMBEE: Certainly one of the issues that has been raised by the respondents in their attack is the question of whether it is appropriate at all to seek declaratory and injunctive relief in this context, and that extends across the whole gamut of the relief, certainly in relation to the Environmental Protection Act and the Conservation and Land Management Act. We would say, similarly, in relation to the fauna provisions of the Wildlife Conservation Act, it raises a very important and large question, whether the Crown is bound by that.

Generally, as I have said before, we have a position where the respondents say - and I will not say again "like the Stuart kings" - but the respondents say, "We are not bound by any of these provisions; we have a regime where the entity responsible for the management of natural resources -" Two of the forests on the national heritage list say, "We are not bound by any of these statutory controls, at least in a way that you could not possibly enforce them against us. We operate outside the sphere of legal control." I would respectfully suggest that that raises a very large question, and would be a very large question for any court of the standing, including the ones mentioned by his Honour Justice Kirby.

I should say that how the questions were phrased is two rival versions were put up, the other side's version came in first and that was used as the basis by his Honour Justice Toohey in referring to the pleadings. The questions we had formulated were directed more at the substantive issues as - - -

KIRBY J: There is a theory that in the future counsels' task for a Court like this will be to be told, "You have got so much time and you have got to so present it." In a sense, the special leave procedure is designed for that, and in that way to encourage the tender of issues of principle which are appropriate to a Court of this kind.

MR SCHOOMBEE: Yes.

KIRBY J: And as I plough through all of those questions and sub-questions and sub-sub-questions I could see the standing question, I could see the Crown question, I could see a few other questions, but most of them are knock out points for the respondents. I am just struggling - and I will not say any more about this, because I have spoken too much - but I am struggling to see the great issues of principle that you present, in a sense, as a knock out point.

MR SCHOOMBEE: With respect, we have been knocked out; we need a Lazarus; we are dead; we need to be revived, that is why we are here. I am only here in a Lazarus guise. We need to be revived. I cannot knock out anything; I have been knocked out. I say my client is dead but should be revived because it raises fundamental issues. If you have a State body that carries the name Conservation and Land Management and says "We are not bound by anything" and it raises the largest issues, the approach of the Full Court, because a very important point that we raised in the standing was that it was argued on a - the questions were phrased as a matter of, is there an arguable case?

The Full Court went away, over our protest, as I have said in the outline of submissions twice, and said, "Well, we can decide questions of law as final as we can." We say that is wrong. We say we say that with Sir Owen Dixon and Sir Francis Burt for two, and that there is no justification for a Full Court to go away, depart from that, and shut us out, kill us, because this is a case where there are not reverse sides of the coin; there are not exact reverse sides. If we fail, we are dead. If the other side fails, they live to fight another day, and that is why we are here. GAUDRON J: Perhaps you could then go to your first point and if you could relate it to the pleadings, just to give us an indication of where it fits into the pleadings, because ultimately the question is one as to the status of those pleadings.

MR SCHOOMBEE: Yes, as it pleases the Court. The first question - I think it is perhaps most appropriate that I will take you to the first question and then invite your attention briefly to the statutory provisions and then take you to the relevant pleadings. We set out the question for your convenience on page 5 of our outline of submissions. This really deals with what we say is an important and fundamental issue in the administration of the Act, namely whether section 33 of the Act relevantly creates a justiciable duty or whether it is simply some statement of functions that is not enforceable in a court of law. The relevant section - and for this purpose I will refer to the respondents' book of legislation, where they have set out the relevant Acts, and I will invite your attention briefly to pages 53 - first to page 53 of that book.

McHUGH J: Why are you taking us to this provision? You have got a finding in your favour on this issue, have you not?

MR SCHOOMBEE: Yes, I have, your Honour, but this is the question before and I want to contextualise what the question is.

McHUGH J: It just seems to me to show the difficulty about this question procedure. The question here is whether your statement of claim is good or bad. The judges have found - the Full Court has found that section 33 does create legal duties and that they are justiciable in a court of law. Why should you be getting special - why should we be dealing with that on a special leave application? Speaking for myself, the special leave questions set out at 518 of the appeal book, I will need some convincing that they raise any special leave questions at all. They just seem to me to be concerned with the construction of a State statute or whether a particular pleading is within the statute. As far as I am concerned, you should not take it for granted that this is a case in which I would be in favour of granting special leave. I would want to hear argument as to whether this was a special case to begin with. It is a matter for you when you want to deal with that issue.

MR SCHOOMBEE: Yes.

McHUGH J: Do not take it for granted for my part.

MR SCHOOMBEE: Yes. The effect of judgment of the Full Court that went against us on this point, that is on the reading of the three related issues: is there a duty; what is the extent of the duty; and has a breach been raised; the Full Court decision went against us on this point, on an interpretation of what that duty entails. Essentially, they said it was a duty only to perform it in honesty and bona fides. Coupled to that finding, there was a finding that there was no - one could not read into the management plan, which we say have quite specific instructions and orders and, in fact, casts specific duties upon the respondent, the Full Court said that could not stand because, as a matter of law, the mangement plan could not be interpreted to have any such direction in that.

We say that that is a matter going fundamentally to the duty of the State body and we say that that is wrong because that is not the test; it is not a case of whether it is to be performed bona fide. If one just pauses for a moment, how would you - it really has very little content, if at all, to say that a duty to locate, seek and conserve rare and endangered flora and fauna is something that has to be performed to a standard of honesty or bona fides. We say that is really a vacuous duty and, in a sense, although the finding ostensibly talks about justiciable duties, it is really an empty or hollow duty and we say that that does raise an important point; it is a point that has never been decided in Australia, what is the nature of such management duties, and ought - - -

GAUDRON J: What do you assert it is? Can you be more precise in your specification of the duty?

MR SCHOOMBEE: Yes, we say that have to be performed to a proper and adequate standard and that - - -

GAUDRON J: What does that mean?

McHUGH J: Judged by what criteria? Who do you measure the standard against or what do you measure the standard against?

MR SCHOOMBEE: We would say that if you look at the management plan, it says quite clearly that it is a document that is based on forest ecology and management and we would say that the approach to be followed as the approach that is being followed, for instance, by the American courts in relation to environmental impact assessment, would be to assess whether it is a proper document or whether there are proper practices in the light of expert evidence to be led at the trial.

HAYNE J: I do not understand what those words are intended to convey. They are simply a group of words that sounds suspiciously like a slogan. What is the content of the duty that you say is imposed by the adoption of the Forest Management Plan?

MR SCHOOMBEE: The content of that duty is pleaded, if I may refer you to the pleadings, perhaps the easiest is to go to the pleadings in the Jane Case at page 342 of the application books.

KIRBY J: Can I just ask for a footnote here? Can we take it that these management plans have analogies in other States of Australia? This is relevant to Justice McHugh's question.

MR SCHOOMBEE: Yes. In fact, in our outline of submissions, and I may take you back to that at an apposite point to really deal with the special leave point, we have explicated where we say there are analogous systems.

GAUDRON J: You say there was a duty to locate threatened or endangered flora, fauna and communities.

MR SCHOOMBEE: Yes. That echoes the very words - we could have put that in quotation marks - that echoes the very words of the management plan which is set out right at the beginning of your application books and I think I was about to take you there where some points that were raised by the Court intervened.

McHUGH J: Your paragraph 33 alleges breach of the duties in paragraph (a) and paragraph (b), you set out the words of the plan, you say that is breached and then what follows is simply the particulars. That is the way you put your case, is it not?

MR SCHOOMBEE: Yes, but we do plead the specific what has to be done and as we have said, that is in a result, we give it content both at a - - -

McHUGH J: I think you may have got yourself into some trouble by saying, "That is what has to be done". It rather puts a burden on you to show that there were these specific duties. There is a more general duty, as I understood your pleading, the way you have put it is, you say, "Well, the fact that they have failed to do these shows that they are in breach of the more general duty".

MR SCHOOMBEE: Yes. I would confess to overpleading there or certainly the danger of overpleading because that is essentially what the plea is. It is a denial. The pleading came as a result of a request for particulars, saying, "Well, what do you say we should have done?" Because one could have pleaded it as a bare - because you are pleading a negative, are you not, you are saying, "Well, you did not do it". We then said, "Well, this is the basis and we would foreshadow what evidence that we would lead a trial to show that has not been done". But, with great respect, I accept that. As the pleading originally stood, it was in exactly that form.

GAUDRON J: What is the duty that you assert? For my part, I cannot begin to understand this case unless I know the duty that you claim has been breached.

MR SCHOOMBEE: Yes. Can I just invite your attention to the management plan? I think if you just look at the document, it may assist the argument. May I do that?

GAUDRON J: Yes, but can you not formulate a duty? Do you say it failed to manage the land in accordance with the management plan, for example?

MR SCHOOMBEE: The duty, yes. The duty is to identify, locate and seek to protect.

McHUGH J: That comes from a combination of section 33 of the CALM Act 1969 , which is the duty to manage, and, what is it, is it section 55 that says if there is a plan, it has to be carried out in accordance with the plan?

MR SCHOOMBEE: It is all in 33. It comes from 33(3). Section 33(3) really contains it all. The other is the surrounding material. So you go to 33(3) of the Act, which I was about to take you to and - - -

KIRBY J: I am looking at three things at the moment, the Act, the management plan and the pleadings. Now, where should I be?

MR SCHOOMBEE: I could suggest that we could go to page 55 of the respondent's book of legislation, which sets out section 33(3). Page 55, that is in a section dealing with the functions of a department and the relevant subsection at the top of page 55 of the respondent's book of legislation, which is the one we are relying on because we did not duplicate it as the practice direction says, says that:

The management of land referred to in subsection (1)(a)(i) -

and that is the forest we are talking about, that is common cause -

and the associated forest produce, flora and fauna shall be carried out -

(a) where there is a management plan for the land, in accordance with that plan;

So that is the origin of the duty, essentially, section 33.

KIRBY J: Is it your point that the court below erred in treating that as other than it appears on its face to be, a command by the Parliament to the executive government, to manage the land in accordance with the plan which is a legislative instrument?

MR SCHOOMBEE: The problem with the Full Court's judgment, with respect, going back to a point raised by his Honour Mr Justice McHugh, is this, that it is like a standard contract - what the large print giveth the small print taketh away, because they said, there is this justiciable duty but, with respect, in terminology that was used commonly by judges, say, before 1950, they say, "Oh, it is reviewable but you must prove mala fides". So, although, with respect, his Honour Justice McHugh is quite right to say, "We won the point", it is a victory that is very much in inverted commas, because when they had to give it content, and the three things are related. Is there a duty? What is the content? Have you raised breach? When they came to the second and third, they said, it is a duty in honesty only - - -

McHUGH J: And good faith.

MR SCHOOMBEE: And good faith, and honesty, I wish to mention, with respect, both. And then related to that they said, "Where do you get all this from, essentially?". I think that goes back to the point again raised by his Honour Justice McHugh, he said, "Well, you have pleaded, you have told us too much", in a sense. But that is to lay the basis of what is the evidence we would lead at the trial. Now, we then go, we have to shift books and we go to the application book- - -

GAUDRON J: Why do we not go to the Forest Management Plan?

MR SCHOOMBEE: That is where the Forest Management Plan is contained. It is also reproduced in our book, but the relevant page, that is the small printed page in the plan itself is contained on page 1 of the plan.

KIRBY J: What page in the application book, just for record?

MR SCHOOMBEE: Page 15, it starts there. This plan sets out that the forests are to be managed for multiple purposes and that importantly, we say, at the bottom of page 1 in the actual plan, page 15 of the application book, it says the conservation objective is:

To maintain biological diversity at the genetic, species and ecosystem level in the forest, with special emphasis on the protection and conservation of threatened, rare and uncommon taxa and communities.

Then it goes on to say:

To achieve this objective CALM will: -

Then turn the page. The important point where we emphasise the issues are at bullet points two and four. At bullet point two it refers to the preparation of wildlife management programs for selected taxa, we specifically rely on the words:

and identify, locate and seek to conserve threatened or endangered flora, fauna and communities in the forest.

And then at the fourth bullet point, which we accept is, perhaps, of a more general nature is to:

Sustain biological diversity in forests managed for multiple purposes.

HAYNE J: As to the first point, does the pleading then, or is the pleading intended to convey anymore than this: section 33 provides: the Forest Management Plan provides that CALM will identify, locate and seek to conserve et cetera. Next paragraph: CALM has not identified or located or sought to conserve.

MR SCHOOMBEE: That is absolutely what the pleading is meant to convey. That was the form it was pleaded in originally, if I may say so.

HAYNE J: We have a lot of pages there.

MR SCHOOMBEE: Yes. Well, I think I have confessed, with a very slight conditionality, to overpleading then, in that sense, because it may be confusing.

McHUGH J: So, you allege these are breaches of the duty and if the defendant wants to say, "Well, it has cost money and we are likely to do this", that is all a matter for the trial, that it does not affect - - -

MR SCHOOMBEE: Absolutely. But the directional matter is very important, even assuming that there is a lot of matter there that should not have been there, there is still a very fundamental issue, because, if we accept, as the Full Court did, that you can characterise that, and I must say the majority of the Full Court, two judges, that is, his Honour Justice Templeman, with whom his Honour Justice Scott agreed, characterise that this is a duty in honesty and bona fides. The senior judge, his Honour Justice Murray, accepted that the normal range of grounds of review would be available.

GAUDRON J: You say that is an absolute duty, do you?

MR SCHOOMBEE: No, we do not say that it is an absolute duty in the sense that there may be some absolute standard. We say that before you can identify, locate, seek - - -

GAUDRON J: Well, no, you do not have to say anything other than that. You say there was a duty to identify, locate and seek to conserve?

MR SCHOOMBEE: Yes.

HAYNE J: You say they have not, and that is it. What more is there?

MR SCHOOMBEE: Well, there is no more, but if I am forced to say they did it mala fides, then I cannot sign the pleading. That is what it is. I cannot say that they acted mala fides. Whatever that may mean to conserve, whether you have to kick a ..... or what you must do to execute a duty of identifying, locating and seeking to conserve, and we say this raises fundamental issues. We are dealing with pristine areas, not only for Western Australia, otherwise it would not have gone in to the heritage list under the Australian Heritage List.

GAUDRON J: It may be a question of whether, when they do identify, they have to act reasonably or bona fide. But if you allege a complete failure to identify, then presumably it does not come into it at all.

MR SCHOOMBEE: Yes.

McHUGH J: Do you accept that the duty may be limited to take reasonable steps to identify?

MR SCHOOMBEE: Well, we certainly say that, because it would be difficult to try and construct sensibly some - and that is, I think, how I understood the reference by the learned presiding Judge, to absolute in the first - to construct some absolute duty. We say that it would not be sensible and, in fact, we have used the word "adequate" - one could use the word "reasonable" or "proper", and that it must be performed to a standard and we have said there had been a failure of that standard. And that again - - -

GAUDRON J: Well, you do not. You say there has been a failure to do it, do you not? Can we get this clear? Do you say there has been a failure to identify, locate and seek to conserve?

MR SCHOOMBEE: Yes, we do.

GAUDRON J: A complete failure?

MR SCHOOMBEE: Yes.

GAUDRON J: You say, in effect, they have taken no steps to - - -

MR SCHOOMBEE: No, we do not make that allegation.

GAUDRON J: You do not. Well, your pleadings are not entirely clear. Could we have it clearly what you would plead if you were starting again?

HAYNE J: It is buried, is it not, at page 342 in the application book in words like, "having an adequate and explicit basis". Value laden words, and so on throughout the pleading. Page 343, "failed to carry out an adequate regional survey". What is the fundamental contention? They have done nothing. They have done something but it is not reasonable. What is the fundamental contention that is sought to be made?

MR SCHOOMBEE: Can I just say in answering just give a simple example? Say that we have a duty, as we say, to locate threatened and endangered wildlife - fauna. The Crown comes along and says, "We have somebody with a broadbrimmed hat and a waterbottle that walks the area before it is logged, they are not doing nothing." But we say that is not a proper performance of that duty.

McHUGH J: But do not you really have to address it in terms of reasonable steps in terms of "identify"? For example, you could hardly contend that the failure to identify endangered flora the day after the plan was promulgated was a breach.

MR SCHOOMBEE: Yes.

McHUGH J: But they had done nothing in three months or they just send somebody along with a waterbottle to have a look around and you would say, well, they have not taken reasonable steps.

MR SCHOOMBEE: We say that it is exactly, with respect, that is what we are saying. We say that the end result of that, though, is that you put a tick or a cross and say there has been a failure of that duty. Just as you say that if somebody were to take a, perhaps, simple analogy in the law of negligence, you say somebody has not taken due care in a duty of care, the consequence is that person breached that duty.

GAUDRON J: Do you now say that the duty is to take reasonable steps?

MR SCHOOMBEE: Yes, or adequate or proper are the words we use, but it would amount to reasonable steps.

GAUDRON J: You say they have failed to take any steps or any reasonable steps.

MR SCHOOMBEE: Any reasonable steps. Because, as I have said before in argument and response to a question by Justice McHugh, I do not think one can on any analysis say that there is some absolute duty for the very reason that the learned judge raised in his example, that you are dealing with a control of an area, there may be a phasing of - - -

GAUDRON J: Do you then seek to prove, just to take it one step further to clear my mind, I suppose, by getting discovery of their documents to show what in fact they have done and by calling an expert to say, well, that would not reveal anything other than the existence of red cockatoos, or something like that.

MR SCHOOMBEE: We know what they have done. They have pleaded to it, and we say we would say at trial that is inadequate. And they have pleaded the reason. They have said what they have done. We will say, at trial that is inadequate. One of the points that I was about to make in relation to the Forest Management Plan, and perhaps I - - -

HAYNE J: Sorry, just before you go on, did I understand you to say they had put on defences? They had pleaded to it.

MR SCHOOMBEE: Yes.

KIRBY J: Where is that pleading?

MR SCHOOMBEE: I take it it would be in my solicitor's file?

KIRBY J: They are not to the current pleading.

MR SCHOOMBEE: Well, it is not to the current pleading, but it is to the basic - those pleadings set out what they say they have done and what they say why it is not a breach.

GAUDRON J: That pleading has not been filed in Court?

MR SCHOOMBEE: No. It did not feature in the strike out.

GAUDRON J: No, well it could not.

MR SCHOOMBEE: It could not, exactly.

KIRBY J: So we can strike out what you just said that they have pleaded what they have done and we say it is not adequate?

MR SCHOOMBEE: I was asked the question, what will the trial - - -

KIRBY J: Do we strike that out, or not? If they have not pleaded, how can you assert that they have pleaded what they have done and that is not adequate?

MR SCHOOMBEE: We made the basic allegation, not fully particularised as that, but we made the basic allegations of a failure, they denied that and pleaded what they have done.

KIRBY J: By pleaded, you mean they moved on the basis that there was no case on the face of your pleading?

MR SCHOOMBEE: Yes, that is right.

KIRBY J: But they have never filed a defence or any other pleading of their own. They have merely said, well, look at this document; on the face of it, it does not show a cause of action known to law.

MR SCHOOMBEE: No, with respect, they followed the practice that is followed in Western Australia, that you may plead to a pleading and then bring a strike-out application.

KIRBY J: This may be something I am not understanding. What is the practice in Western Australia? What is the plea that a party contesting the adequacy of law, a demurrer type objection, what do they file? Is it here in our appeal pages?

MR SCHOOMBEE: No. There are one of two practices you can follow. You either get a court order that you do not have to file a defence and you simply argue on the documents, that is, on the statement of claim, or you do what happened in this case, you file a defence, they got leave not to give discovery and then they brought a strike-out application against our statement saying, in any event, a statement of claim, it does not disclose a cause of action.

KIRBY J: So they did get leave to file a defence?

MR SCHOOMBEE: They would have to get the opposite. They actually filed a defence in the normal course of events.

KIRBY J: Therefore, what you said earlier was right, that they filed a defence and that it does not reveal an answer which you say is adequate to your pleading. Now, where is this defence that they filed, because I have not seen it? This should not be a difficult question to answer. Is it in our appeal papers, or not?

MR SCHOOMBEE: No, it is not in the appeal papers.

KIRBY J: Was it a document before the Full Court?

MR SCHOOMBEE: No, it was not a document before the Full Court, because the Full Court on a strike-out application, like on a demurrer - - -

KIRBY J: It ignores the pleading of the other parties. It simply deals with the face of your document.

MR SCHOOMBEE: Yes.

KIRBY J: I suppose if that is the way it is done in Western Australia, if that is the way the Full Court did it, that is the way we should do it. You do not dispute that.

MR SCHOOMBEE: No, I do not dispute it, but I make the point that if the matter goes - - -

KIRBY J: You cannot make a point by reference to a document that is not before us, that was not before the Full Court, and that is not before the practice list in Western Australia dealing with these matters.

MR SCHOOMBEE: Well, I will not refer to it any further then. I was asked a question of whether they have said anything to it and I think it was in response to that. Just on the question of the duty, we say, arise to identify, locate and seek to conserve threatened or endangered flora, fauna communities in the forest, as it is stated on page 2 of the management plan itself, or page 6 of the application books, earlier in the management plan on page iii, page 13 of the application book, it sets out that the basis for the management plan is within the scientific field of forest ecology.

KIRBY J: I notice that under the Act, this is made by somebody and then the Minister approves it?

MR SCHOOMBEE: Yes

KIRBY J: That is under section 60 of the CALM Act. It does not look like the sort of subordinate legislation we are familiar with, paragraphs and specificity, and tightness and precision. No doubt, this is behind the thought in the Full Court. This is very general and it has, no doubt, been drafted in what is called "user friendly" plain English, something like that, but it does not look like a subordinate law.

MR SCHOOMBEE: We accept that it is certainly not - does not fall within what one may term "traditional mould" of delegated legislation. The case has never been really argued on that basis by ourselves, but we say, nevertheless, that where you have a duty in a statute, that you shall manage land in accordance with a document, it sets out what you have to do, that that creates a duty and whether that duty is directed at a government department - it has a direct focus on a government department, it is not addressed at citizens because your Honour would appreciate that there is actually a proponent for the management plan. It is a bit like if you have managed somebody's farm and you say, "Look, I am going to manage in this way", and they say, "Yes, but you must do the following things". So it is directed at CALM as manager of the state forests.

It goes through a public scrutiny process, public comment and then it is formally approved by the Minister. It is not gazetted in a way the delegated legislation would be but any member of the public can get a copy of that.

On page iii, that is page 13 of the application book, it sets out reference to the literature on forest ecology in general and then refers to the basis of the detailed scientific data which are the basis for the forest management strategies outlined here. Now, I refer you to that point because I think it is of some importance in expressing our accord with the issue raised by her Honour - - -

KIRBY J: Is your point that the Parliament has made this command. It is in the hands of the executive government, at least in making the recommendation to the Minister how they frame their management plan, but whatever they frame and once it is authorised or approved by the Minister under the Act by command of the Parliament the executive government must conform to it and if they want to put in a lot of generalities and exhortations, then that is their business, but once they put it in by the command of the Parliament they have to conform to it.

MR SCHOOMBEE: Yes, and with respect, as her Honour made the point, that if you go to trial, the proposition was put, you will lead expert evidence on this point and that is exactly the point. It is a duty. It is not some very general social duty that one may think of. It is a duty that is founded in forest ecology. It has been pleaded in that way where we say that the reasonable steps were not taken and the very terminology "communities in the forest" is a forest ecological term or a community of interactive species. So it is on that basis that we say there is a duty that has to be performed to a standard which we say you can characterise as reasonable, adequate, proper.

McHUGH J: What about directions of the Minister? Do you say they would only go to showing whether or not there had been a breach so that if the Minister, for example, said, "Well, I direct you to put your resources to do this and that and identifying endangered fauna as to be low on your list of priorities or number 10," that would go to breach, but that is its relevance?

MR SCHOOMBEE: Yes. That is also expressly stated in section 33(1) but not in 33(3) where it deals with the functions; there is an explication of the ministerial directive and it is made subject to that.

McHUGH J: Is it your argument that 33(3) overrides - the Minister has no power to give a direction contrary to the terms of a plea?

MR SCHOOMBEE: Well, certainly not in a way that would undermine those duties, no.

McHUGH J: Yes.

GAUDRON J: You say he can give directions as to how, when and where perhaps, but not to disregard them?

MR SCHOOMBEE: Yes, that is certainly what we would say.

GAUDRON J: Providing the when and where are not in substance - or how, when and where are not in substance directions to disregard the duty?

MR SCHOOMBEE: Yes.

GAUDRON J: Yes.

MR SCHOOMBEE: With the greatest of respect, that is exactly what we say and, again, we are not seeking to make out some case coming to the absolute standard point saying that there is not a decisional element involved. With the greatest of respect, I think the examples given by his Honour Justice McHugh - we would accept that there is obviously some latitude, but that is why the pleading is directed to show really that there has been a fundamental breach, to use that term, that the way that it has been done - it is not just a question of general - we do refer certainly to the system that is in place but we say that when they go and log they have to do adequate pre-logging surveys, that is what is in that area, and we say those have not been done properly. So that is at a very, very specific level of their forest operations.

Certainly we say, with respect, that the correct analysis on this point was that of his Honour Justice Murray in the Supreme Court. He said quite explicitly - at the application book 393 over on 394 - he took the trouble to list a whole range of attacks, possible attacks, that could be made, including Wednesbury unreasonableness, but he then went on to say we have not pleaded a case and we say, with respect, in that matter that is - he agrees with the pleadings, that is at the bottom of page 393 of the application books, then he goes on to say - and this is where he departs from the other two members of the Full Court - he accepts that those other grounds are available.

KIRBY J: I have lost you. Where is this exactly? What line, what page?

MR SCHOOMBEE: It is on page 393 of the application book. It may be appropriate to start reading at line 20, that is the last paragraph on that page.

KIRBY J: Yes. Do you agree that your case was not mounted on such a basis?

MR SCHOOMBEE: No, we do not say that. I mean, there is one aspect that stands out absolutely clearly that the Full Court never dealt with. We specifically pleaded Wednesbury unreasonableness in relation to a policy we say they are following of regarding clear felling as an acceleration of natural process.

KIRBY J: But where do you plead Wednesbury unreasonableness, if you do?

MR SCHOOMBEE: If your Honours go to the Jane pleading.

KIRBY J: Just give us the page and line.

MR SCHOOMBEE: It starts at page 349 under paragraph 33(b)(2), the last two lines of the page and then over the page.

KIRBY J: I am sorry which page and which line?

MR SCHOOMBEE: 349 starting at line 20, which is the head part of the paragraph, that they:

failed to seek to conserve threatened or endangered flora, fauna.....by:

and we refer back and we also say they adopted and followed:

the policy and practice of regarding - - -

GAUDRON J: Can I interrupt you there? You have now moved to question 2, have you, rather than question 1?

MR SCHOOMBEE: Yes, but the matters, the three matters are interrelated, whether there is a duty - - -

GAUDRON J: I know that. In fact, so interrelated that I am having difficulty dealing with them as separate questions, but I am taking it that you have moved to question 2 and I want to ask you this question so that I can be clear: that is a question that is to be answered as if on a demurrer? Is that correct?

MR SCHOOMBEE: Can I just say this? I took the Court to that passage in response to a question by his Honour Justice Kirby which asked me, "Where did you plead this?" That is where we pleaded Wednesbury unreasonableness.

KIRBY J: You took us to Justice Murray. You say you did not plead it. I said, "Did you accept that?" You said, no, you do not and I then asked you to show me where you did.

MR SCHOOMBEE: Yes, and that is exactly where it is.

KIRBY J: I do not see a reference there to who conducted itself in a way that was so unreasonable that no reasonable authority fulfilling its duty - - -

MR SCHOOMBEE: We specifically said - we say why it is without scientific foundation and then over the page at page 351 just after line 15 we explicate and we say that that policy:

Is on the basis of the matters pleaded in (aa) grossly unreasonable and a denial of any conservation duty or objective.

KIRBY J: Yes.

MR SCHOOMBEE: So to what extent one must label your grounds of review in a pleading is another matter but we have actually labelled that one because we think that perhaps with gross unreasonable one must. If I may then just turn to deal with the specific query, issue going to question 2, I would like to deal with that now and, but for one observation on the question of mandatory relevant considerations. It is not simply a duplication alternative. It is either a duty or mandatory relevant considerations because one can have a situation where a court finds that there was no duty to do something, the court may well say, "But you have to properly consider the circumstances".

GAUDRON J: Where does that duty come from again, 33(3)?

MR SCHOOMBEE: Yes.

GAUDRON J: And anything in particular in the Forest Management Plan?

MR SCHOOMBEE: The passages to which I have taken you.

GAUDRON J: And you formulate this duty as, what, to what?

MR SCHOOMBEE: To consider those objectives and the specific tasks under that before logging is undertaken and we say that you can only do so - you can only properly consider them if you have a proper information basis to do that.

GAUDRON J: Before undertaking any sort of logging or clear felling?

MR SCHOOMBEE: We have directed here a clear felling in the specific forests because certainly looking at Jane and Sharpe, and there are other factors in Herr-Hester which my learned friend, Mr McIntyre, will take you, but we are looking at specifically environmentally sensitive areas and that is recognised in the management plan itself.

KIRBY J: Do we really have to struggle through the jungles of these separate forests or can there not be some agreement between the parties that if you win on a certain point that that would have consequences for like questions in other forests? It seems outrageous that this Court has to struggle through different forests to deal with questions of principle. I do not want to keep harping on that, but I have never heard of anything like this.

MR SCHOOMBEE: No, your Honour. I apologise. It is not a case that there are different considerations. I only refer to one aspect and that is the status of Jane and Sharpe as listed under the national Heritage Act. We do not say that that is - that is certainly a crucial fact. We say that the management plan constitutes in all the forests before you duties and/or mandatory relevant considerations.

GAUDRON J: I just do not understand the precise question as comprehended by the words "or relevant considerations which are justiciable by a court of law" in question 1 set out at page 5 of your submissions. I understand it if you say that there was a duty to consider the objectives and tasks before undertaking logging, but I understand that as an enforceable legal duty.

MR SCHOOMBEE: Yes.

GAUDRON J: Are you asserting an enforceable legal duty to take relevant considerations - - -

MR SCHOOMBEE: Yes, we are.

GAUDRON J: - - - to take matters into account?

MR SCHOOMBEE: Yes, and I think the formulation that may make a certain assumption is simply to distinguish that from matters which a decision maker may take into account are relevant, they are not irrelevant, but they are not obliged to take them into account. That is to make that distinction I think that was put in that sense but, yes, we say there was a duty to take these matters into consideration. That duty entailed that you must have a proper information basis for doing so. The Full Court said yes on the first but said no on the second because, in an important matter for the entire range of similar decision making, the Full Court said no. They read the cases to say that the relevant consideration ground can only be raised if there is readily available information.

We would say that that approach would really undermine, not only forest management plans or similar documents, but an entire range of administrative decision making where you are not sitting back and just waiting for an application; you are being told to seek to identify, and then to conserve, and it is really a negation to work with some notional term as used by the Full Court, with respect, that the information must be "readily available".

GAUDRON J: What exactly do you say they have to take into account as part of this duty?

MR SCHOOMBEE: They have to take into account before they log what is the state and presence of endangered and threatened flora and fauna in the areas they are going to log.

GAUDRON J: Is that not the same as saying there is a duty to ascertain?

MR SCHOOMBEE: Yes, it is. The only reason why it is advanced as an alternative, as I sought to explain, the courts sometimes say that you do not have a duty to do something specific but you at least have a duty to think properly about it.

GAUDRON J: But you say "take into account".

MR SCHOOMBEE: Yes.

GAUDRON J: Not "think about".

MR SCHOOMBEE: With respect, to take into account.

GAUDRON J: The state and existence, you said, of these endangered species.

MR SCHOOMBEE: Yes.

McHUGH J: I am beginning to think that one of the problems of this case is that what is being married here is what I would call the old administrative law and the new administrative law. By old administrative law I mean all those cases which dealt with the failure of public authorities to carry out a duty and the question was, "Did you breach your duty?" Much of the new administrative law is concerned with decision making and when you get into that area, it is a question of whether you took this into account or you failed to take that into account and so on, but is not this case really concerned with the old administrative law and at best what you talk about failing to take into account really goes to the question of whether there was a breach of duty.

MR SCHOOMBEE: Yes, I accept that. If I may, with respect, try and just elucidate my understanding of that, that is exactly - that is why in my heads I have said, first and foremostly, we come with a breach of the duty and that is, with the greatest of respect, absolutely to say the old administrative law or public law duties, to put it even broader than that. Then we say, but there are also decisional elements involved in executing this duty and we can at least - we can point a stick at one and probably two. The one we can point a stick is that you follow a policy that we say is absurd of regarding clear felling as an acceleration of natural process and that distorts that duty.

McHUGH J: I am not sure that you do not get yourself into trouble by doing that because it may be that the failure to do it is just evidence of a breach of the duty, but you seem to be aligning it with the cases on decision making where an immigration authority, for example, fails to make inquiries or fails to take steps to do this or that. That is why I raised this question of the old or the new.

MR SCHOOMBEE: Yes. I absolutely agree with that, with respect. I should say the way the pleading has been structured, it is not pleaded as separate - as a decisional attack. It is actually seen as an element of that breach. That is why the paragraph I took you to in response to the question by his Honour Justice Kirby saying, "Where have you pleaded this gross unreasonableness?" is actually part of the pleading of breach, but we would say that would be an identifiable ground but, yes, it is. So really it is first old administrative law and then we have pointed to two elements which we say, from the modern administrative law, go into the decisional element - maybe one can make a distinction between the action element and the decisional element on top of it, action being what you have to do on the ground and the decisional element is how you do it - and we have identified in the pleading the most obvious one is the distortion caused by the fixed policy and the second one, as we have said, it also follows - and that is really an explication of the breach, I suppose, going to cases such as Thameside, that you do not have a proper basis for your decision.

GAUDRON J: Where is the pleading relating to what you call the decisional matters?

MR SCHOOMBEE: I have just taken you to the main important one, namely - - -

GAUDRON J: It is all tied up in the one?

MR SCHOOMBEE: Yes.

GAUDRON J: There is no separate cause of action asserted?

MR SCHOOMBEE: No. One might say it is a different legal angle on the same issue.

GAUDRON J: Same cause of action.

MR SCHOOMBEE: But that is certainly - if you want to go to trial and say, "Look, you have not considered it; you have not performed the duty because you have this policy that absurdly equates" all you are doing - - -

GAUDRON J: Forget about the jury address at this stage. Let us try and deal with the pleadings.

MR SCHOOMBEE: We have to plead that. You would have to plead that - - -

GAUDRON J: Well, you have not pleaded this.

MR SCHOOMBEE: - - - simply on the surprise rule you would have to plead that. You would have to indicate that to the other side and that is why we have pleaded it.

GAUDRON J: And you have not pleaded it separately?

MR SCHOOMBEE: No, we have not.

GAUDRON J: All right. Well, why do we have to answer it, if it is not pleaded? Why does the question come up with respect to "or relevant legal considerations"? Do not forget we have got to write answers to these questions unless we say - - -

MR SCHOOMBEE: Yes, I appreciate that.

GAUDRON J: - - - the case not having been sufficiently well explained, it is not a suitable vehicle to grant special leave, which is a tempting course, I may say.

MR SCHOOMBEE: Yes. I apologise. I think I misled you with the answer. I thought you were referring to the element of the fixed policy they were following. There is a separate pleading of irrelevant considerations and that follows after the pleading in paragraph 33 and starts at page 353 and, as I have said, that is not our main plea, it is in fact a backup pleading to the straight breach of a duty because it goes, we say - it is on page 353, your Honour, starting at paragraph 34.

GAUDRON J: Yes, and again, you only rely, do you, on section 33(3) and the words of the conservation objective appearing against the second dot in the Forest Management Plan to support the existence of that duty?

MR SCHOOMBEE: Yes, of that duty and, as a matter of fact, we say flowing from that duty we also rely on the heritage value, the high heritage value of the matter, but that is a matter of fact, not the source of the duty.

GAUDRON J: Let me again get this clear. The duty you assert is a duty to take into account the existence/possible existence of threatened or endangered flora, fauna in the forest?

MR SCHOOMBEE: Yes.

GAUDRON J: Now, which is it, the existence or the possible existence?

MR SCHOOMBEE: With respect, I do not see a difference between the two.

GAUDRON J: Well, you may not, but we are dealing with what is essentially a pleading summons and it is up to you to formulate the duty that you say that is breached.

MR SCHOOMBEE: Before they log we say they must, to take it at its simplest level, consider the identity, that is what may be there, and the location where - - -

GAUDRON J: The possible existence then. You say the possible existence.

MR SCHOOMBEE: Yes, and they can only do so if they have adequately informed themselves.

McHUGH J: You see, again, you have introduced in paragraph 35 of the statement of claim the new administrative law, they failed to take into consideration this, but what you are really saying is that they misconceived their duty.

MR SCHOOMBEE: Yes.

McHUGH J: So you get mandamus under the old public law to reconsider the matter on this particular paragraph.

MR SCHOOMBEE: Yes, and if we win on the straight duty, we do not need this. I mean, if at the end of the trial you say - if we win on the duty, paragraph 34 would simply fall away because, as I have said, it is a backup.

HAYNE J: If you lose on the straight duty, can paragraph 34 survive?

MR SCHOOMBEE: We say it can because - - -

HAYNE J: That is that if you have reached the conclusion that the second dot point on page 2 of the Forest Management Plan imposes no duty on CALM to get out there and identify and locate and seek to conserve. Is that not the hypothesis?

MR SCHOOMBEE: Yes. If one accepts that hypothesis, then I accept we would be dead on the second point as well because that would exclude the existence of any duty?

HAYNE J: Is there any hypothesis that is open that would see you losing on the first manner of putting it and succeeding on the second?

MR SCHOOMBEE: The hypothesis we have in mind, and we would advance on that as an alternative, would be to go to cases such as Gray's Case I can take you to where they have said there is not a duty to implement a policy document but you have to consider the content of that policy document as a mandatory relevant consideration.

McHUGH J: I am sorry, I may be misunderstanding your pleading and maybe I am concentrating on paragraph 35 more than I should, but is not the way that you put it in the alternative, you say there was a duty and there was a breach of this duty, but even if we are wrong about the breach of the duty as such, nevertheless the extent of the duty has been misconceived in the sense that they have not considered a particular matter that they should have, but maybe that would be a breach in any event.

MR SCHOOMBEE: Yes, that I accept, particularly the last aspect, yes. I am afraid I do not think I can put it better, with the greatest of respect. That is exactly the point. That is why I said that one would not use - if you would not use it at trial, if you get up on the essential what is the main pleading, that is the duty under section 33(3) and the management plan.

McHUGH J: Well, all this seems a long way removed from a special leave case though.

MR SCHOOMBEE: I think I have referred the Court to the implications to say that duties of a government body charged to implement a management plan sounds only in honesty and bona fides.

McHUGH J: I suppose the best way you can put it is that this is a developing area of law and if this type of duty is being imposed more and more on bodies such as CALM and therefore- - -

MR SCHOOMBEE: And the problem is, as the Full Court judgment stands, the majority of the Full Court, it says it is a curious animal in modern administrative law, because it is a duty that sounds only in honesty and bona fides, and that would certainly stultify any, what we would say, sensible content to that duty. It is not a case that the Full Court left it open. The majority of the Full Court, his Honour Justice Templeman and Scott, said it sounds in honesty and bona fides and applied it, we say, in saying - - -

McHUGH J: Your big trouble, it may be, that even if you prove that various things did not happen, nevertheless it does not amount to a breach by reason of competing demands, lack of resources, matters of that nature.

MR SCHOOMBEE: Exactly, but with the greatest respect, I mean, Mr Brett Walker, SC, the head of the Law Council of Australia, recently observed that people who want to litigate should not be stigmatised. We say that that major premise would include a minor premise: those who want to litigate and actually go to trial should not be stigmatised, and again, I can only say I stand here as Lazarus, because that is what happened to us. We accept that in fact - - -

KIRBY J: The other side of that coin is that people who do not plead correctly or who do not have standing should not trouble other people, because it is expensive, it is painful, it takes time, it takes up the other time of the court that could be occupied with other disputes.

MR SCHOOMBEE: But we accept that, but we are not coming here with a special pleading point; it is the very opposite - I use special pleading in the general sense of the word. We say that if it were a commercial case, and there was a dispute of duty of that nature - - -

GAUDRON J: It would be better pleaded, that is for sure.

MR SCHOOMBEE: That may be so, it may be a more tested ground for one, because we are dealing here with an issue that to our knowledge, as we have pointed out in the outline of submissions there is an analogous area in environmental impact assessment, but we accept there are distinctions, but this is not an area that is well-trodden ground.

KIRBY J: What I do not understand is, what rules of pleading or practice in Western Australia are there that do not permit you to put forward your contention in a much more succinct way. It may be that like most of the members of the Bench, I was brought up in the common law pleading tradition, which is a different sought of system, but it does not just say, Parliament has said you have got to do that, the plan was made, you did not conform to the duty under the plan.

MR SCHOOMBEE: Yes.

KIRBY J: Instead of that it has got into all of these rather haranguing-looking contentious material, and that is what has invited the problems I think.

HAYNE J: A very simple idea has been over-elaborated.

KIRBY J: The essence of your complaint is really fundamentally very simple; Parliament has provided the plans, a plan was made, the Executive Government by command of the Parliament must conform to the plan as it has been expressed, it could have expressed in a different way, but it expressed it in this way and it did not conform to it, it did not make a reasonable attempt to conform to it, and you want to litigate that in court and you are being held out from doing so.

MR SCHOOMBEE: Yes. And it is not simply, we say, accepting that there may be problems with the pleading, it is not simply a case of some pleading point; it goes fundamentally to the interpretation of what that duty entails.

McHUGH J: You were not given leave to re-plead, except in that minor way.

MR SCHOOMBEE: Exactly, we were not.

KIRBY J: But that was, I think, because of the history of this matter and various earlier - - -

MR SCHOOMBEE: No, with respect not. The question of the re-pleading was considered, as we pointed out in the document we filed in court, in the context of Kerr-Hester, but it dealt with all the cases, and the court found there is no way we can re-plead it on the case argued that would put a case that can go to trial, because we were certainly not in a position to say that they had been mala fide.

KIRBY J: So you say that within the perimeters of what you are permitted to re-plead, confining yourself to honesty and bona fides, you cannot win, and therefore that was pointless to re-plead on that footing. You have got to challenge the fundamental premise - - -

MR SCHOOMBEE: Absolutely.

KIRBY J: - - - and say that this is just a misconstruction of administrative law and you are entitled to have all the administrative law around you. If Parliament says this, maybe Parliament should not do it, maybe the Executive Government should have a different form of plan; if they do it this way then they have just got to conform to what Parliament has commanded.

MR SCHOOMBEE: Yes. With respect, if the judgment of his Honour Justice Murray had stood, it would have been a fairly - we would even have been denied it the way the judgment was handed down, we would have brought an application and say, with respect, you have said in your judgment we can have all these grounds, you say we have not raised them, but allow us then to re-plead the matter. That is a very different back-drop, but that is not the majority judgment of the court. The majority judgment of the court is, with respect, as his Honour Justice Kirby said, if you are going to fight it at all you have to fight it at the level of honesty and bona fides.

GAUDRON J: Now does that exhaust what you have got to say on question 1, as set out in your submissions?

MR SCHOOMBEE: Yes, your Honour.

GAUDRON J: Are you coming now to question 2?

MR SCHOOMBEE: Yes, your Honour.

GAUDRON J: Is this said to be - - -

MR SCHOOMBEE: And really by reason of the discussion we have had, I have really dealt with question 2.

GAUDRON J: Not to my satisfaction, I am afraid. Is question 2 said to be a question of law purely?

MR SCHOOMBEE: No - well it is a question of law, does the pleadings disclose a cause of action, that is a question of law.

GAUDRON J: I do not understand it, I have to confess. This is where you have come to all these detailed particulars and is the question posed by question 2 anything more than, is there a court, do what has been set out in the pleadings constitute allegations of a failure to identify, et cetera, flora and fauna, or a failure to have regard to the possible existence of endangered species? Is this question directed to the construction of your pleadings?

MR SCHOOMBEE: Well, in a sense yes; it is not the way that the issue may be approached, but yes, on the reading.

GAUDRON J: How do you say it may be approached, because I do not understand this question.

MR SCHOOMBEE: Well, if the Court finds that there are justiciable duties, and I think inevitably, given the approach of the Full Court, one would have to look at what the content of that duty is, and that would then follow, what is a pleading that can be pursued. If the Court were to find with the majority of the Full Court that it is only a duty in honesty and bona fides, well then the answer must certainly be no. It does not disclose that - - -

GAUDRON J: Let us get away from this gloss that appears to have developed, this duty of honesty and bona fides. I thought you had asserted specific duties by reference to question 1.

MR SCHOOMBEE: Yes.

GAUDRON J: Question 2, in the alternative. In the context of the duties you have asserted, and for myself I do not propose to go looking to see if the Act will support any duties other than those which you assert - it is not for this Court to redraft your pleadings for you - does question 2 mean anything more than, do those paragraphs assert - can they be read as asserting a breach of those duties?

MR SCHOOMBEE: And we say they clearly do, they may contain surplusage, but they certainly clearly do so.

GAUDRON J: Well that is a short question...... It is no question of law; it is a question of meaning of your pleadings.

MR SCHOOMBEE: Question 1 is a substantive legal question and then question 2 really flows from that, and we would say, yes, on the reading of the pleadings as they stand.

GAUDRON J: And you would say, I suppose, would you, that if question 1 is answered in your favour, one or other of them, but question 2 is answered against you, you should have leave to re-plead?

MR SCHOOMBEE: That is so. I think, with respect, the discussion we have had, or the points I have made, has really dealt with the issues under question 2 dealing with the nature of the duty, and I have referred you to the, we say, analogy of the environmental impact assessment procedure where, for instance, the New Zealand Court of Appeal said that you can have a purported performance of the document, something amounting to such a report, but it may be deficient in a way that you can say it is not true, it does not measure up, and that is what we say about the performance of Crown's duties.

KIRBY J: Is the author, Murray, in the reference there, is that Justice Murray?

MR SCHOOMBEE: Yes, I apologise. No, it is not Justice Murray. We have named the author unfortunately by his first name; his surname is Raff actually, and we have supplied a copy of that in our materials. I apologise for the misnomer of taking him by his first name. On that point, we also make the point that this would fit in an approach of substantial performance that the courts have held in relation to management plans, for instance, in the District Council of Kingscote Case.

KIRBY J: Now, those cases in South Australia and New South Wales, do they present similar sorts of issues of exhortatory generalities of a somewhat semi-political kind in a management plan?

MR SCHOOMBEE: Yes, I think though, in fairness, the District Council, Case, the Kangaroo Island Case, dealt with fairly specific prescriptions dealing with the clearing of vegetation, but there was an issue as to what extent that has been infringed in the actual work undertaken, and it was in that context, with respect, that the court said you could not simply say because they had used a bulldozer rather than a chain saw and had removed the vegetation that far, that you could really say that it had been infringed, and they said that it had to be a measurement of substantial performance and given the fact that they were also maintaining the road, the conviction which had actually been obtained at first instance was overturned on appeal. So we would say it would raise certainly similar issues.

KIRBY J: There was one point in one of the judgments in the Full Court that said something to the effect that it ought not be in the power of Executive Government by its control over funding to prevent a party from being able to come to a court and that was said in connection with standing, but by the same token, one might say that it should not be within the power of the Executive Government by exhortatory or quasi-political management plans to put people out from the command that Parliament has given to conform to the management plan as approved by the Minister.

MR SCHOOMBEE: Yes, but we would certainly say that these are not simply operating at the level of exhortation.

KIRBY J: They are not usual subordinate legislation in the Australian manner.

MR SCHOOMBEE: We accept that, but management plans is an area that has developed and is developing outside the context of strict - - -

KIRBY J: This is what led the majority of the Full Court into the view that in seeing what Parliament has commanded you comply with, you have then got to go to what the management plan says, and if it is in exhortatory-type language you can only expect the civil servants to do the best they honestly can with the language of such generality.

MR SCHOOMBEE: Yes, that is so, and that is the fundamental point where we part company with the Full Court and say that you are looking at matters that are concrete. "The location, the identification and seeking to conserve the management plan itself" refers to the fact that you are looking it at it within an area of forest ecology, you have to apply a reasonable standard to that and we have pleaded a failure of that.

KIRBY J: Is the New Zealand case the only case you have found on this sort of problems? Has it arisen in England or in South Africa or any other country?

MR SCHOOMBEE: No, if I can just take you briefly. The article by, if I can just take you to that, Mr Raff, which is set out on page 129 of our book of documents, really deals with the developments of environmental impact assessment in the context where there are not technical prescriptions. We have also handed to your Honours a copy of the relevant legislation which is discussed, which is the American National Environmental Policy Act , because the major premise of this article and the way we refer to this is that this is not a detailed prescription in the American legislation and that what the courts have done in America, as the author puts it, is to develop principles of how do you judge the sufficiency of environmental impact assessments in a context where there are not detailed provisions, and the relevant section of NEPA, the American legislation, is section 102, which deals - - -

KIRBY J: Which section, 102, is it?

MR SCHOOMBEE: Yes, section 102, particularly (c).

KIRBY J: Has this question gone to the Supreme Court of the United States?

MR SCHOOMBEE: Certainly in the interpretation, yes.

KIRBY J: The interpretation of the section and of plans under the section?

MR SCHOOMBEE: Yes.

KIRBY J: We had better have a look at those cases, if you have got those; not today.

MR SCHOOMBEE: Yes. The legislation deals with what is to be included in the statement in general terms.

KIRBY J: It is not entirely analogous to our problem. Here we have got a statute that says, you shall do something in accordance with a management plan and a scheme for the management plan to be approved, but it cannot just mean nothing; it just cannot be allowed to be interpreted, because this is the Parliament to the Executive Government. Otherwise you are just saying, well the Executive Government, by writing funny old plans, can just ignore Parliament. That must not be allowed to happen.

GAUDRON J: You do not say that the plan is a sham or a hollow plan; you say it has actually got content and you want that content given effect to.

MR SCHOOMBEE: Yes, but we would agree, with respect, with the issue raised by his Honour Justice Kirby, because we say that goes to how you interpret that, that what is couched in - - -

GAUDRON J: Yes.

KIRBY J: If the approach is to say, all you have to do is make an honest bona fide attempt to carry out these exhortations, that really undermines the command- - -

MR SCHOOMBEE: Well that means nothing really, with respect.

KIRBY J: Whereas if you say you have got to go beyond that and you have got to take into account all relevant matters, not take into account irrelevant matters, and proceed with a faithful attempt to fulfil, it does open up the inquiry, but maybe that is under control of a court, but it then is fulfilling the command of Parliament and conforming to the ordinary principles of administrative law.

MR SCHOOMBEE: Yes, and certainly part of our reasoning there is one is not looking at some very broad decisional power that may be given to a body like the Governor-General or whatever, to take some decision as he or she may think fit; it is a duty to do things on the ground essentially, "to identify, locate and seek to conserve". So any exhortatory element within that should be read in that specific context and it is really, in this area, very important that we are not stuck in this very important area of forests having a national importance by a majority judgment of the Full Court that says, that is all you are doing - you only have to do it honestly and bona fide. As the learned author refers to the joint judgment - - -

KIRBY J: Why did not Justice Murray, conformable to his opinion, say, and I would grant the plaintiffs leave to re-plead in conformity with my view?

MR SCHOOMBEE: Unfortunately I cannot answer that question. When we sought - we have explained in the document we sought a deferment for further consideration, although the Full Court had given its answer, but that deferment was refused on the day; we had less than 24 hour notice to look at the judgment. The Full Court said no, we have considered it, you can get that leave, and the orders were then made which effectively put us in a grave.

KIRBY J: You did go back to his Honour, did you not, to - - -

MR SCHOOMBEE: Well, on the morning, we got the judgment the previous day, in terms of the Western Australian practice, you get advance notice, the legal counsel, you get one hour to discuss it with your client, and then you front up to note judgment. So we made the point, as explained in the document we filed in the court, that we asked for the matter to be adjourned so we could further consider it, although we had seen that the court had adverted its mind to it and only given us leave on one point, but that was where the matter stayed.

KIRBY J: Did you specifically refer in the transcript to asking his Honour Justice Murray, in conformity with his view, to get leave.

MR SCHOOMBEE: No, we did not, I accept that. We said we needed more time to consider the various aspects.

KIRBY J: - - -But anyway, you say that that is what logically follows from his opinion.

MR SCHOOMBEE: I would, with respect, say so, yes. But even the minority judge - and there had been a split, for instance, on the standing matter and, in fact, even on the leave to amend matter - it was also a majority decision, but in a different configuration, because one of the judges said we should not get any leave to amend. That itself, the single leave to amend point, was in itself a majority judgment, so it was certainly a matter considered by the court and we were confronted with a fait accompli where the court said, well that is what you can have, but that is it. You first have to elevate, with respect, his Honour Justice Murray to the majority for his view to prevail or to get to that point.

KIRBY J: In answer to Justice Gaudron at the opening of this hearing, you identified what I took down as eight headings, there may be more, but I wonder if it would be possible to prepare a table on the one page which shows how each of the justices below dealt with each of these issues with the reference to the transcript on those eight points, such as standing, declaratory relief and so on. If a table could be - a ready reckoner, as a sense, that would be helpful to me to find my way through this forest, if I can coin a phrase.

MR SCHOOMBEE: I am tempted to say, to see the wood for the trees, but, yes, we will endeavour to assist your Honour in that way.

The point made about the development that we would say should take place, or the proper interpretation of those duties, is in line with the citation from a minority judgment, but as the learned author points out, the majority did not assent to that in the Kleppe v Sierra Club Case, which is cited on page 130 of our book of authorities and on page 209 in the first column of Mr Raff's article, referring to Justices Marshall and Brennan, referring to the abstract character of the text of NEPA, they said:

"In fact, this vaguely worded statute seems designed to serve as no more than a catalyst for the development of a `common law' of NEPA. To date, the courts have responded in just that manner and have created such a' common law'. ...Indeed, that development is the source of NEPA's success.

McHUGH J: In the United States there is a huge body of case law on judicial supervision of agencies, which I have never done more than glance at a few aspects of, but have you had a look at any of that law? The Federal Courts in the United States seems to spend a great deal of their time in effect monitoring the performance of bodies as diverse as the Atomic Energy Commission and welfare agencies.

MR SCHOOMBEE: Yes.

KIRBY J: There is a book by Professor Davis called Discretionary Decisions or some name like that.

MR SCHOOMBEE: Yes, I think there was also the seminal article written in 1977 by Professor Chayes, where he pointed that out, and said that it is in fact a new form of judicial decision-making; he characterised that. I think it was in either the Harvard or Yale Law Review. But that is why we say this is a similar process - we are not saying it is the same or it cannot be transposed and I certainly accept that - but we say that it is a justiciable matter for a court to say that this is not a duty. That is, as we say, vacuous, and that is a matter that will have to be determined, we say, at the trial of this matter, and we are not asking for any special favours; we are asking - with respect, we say we have a case which should go to trial on this matter. We accept that at the trial, as we have said in our outline of submissions explicitly, we will have to deal with the issues that, for instance, with respect, his Honour Justice McHugh has raised, in respect of what is the extent of the performance and the failings.

GAUDRON J: Now, that does raise the question, there is, I take it, no Administrative Decisions (Judicial Review) Act in the West?

MR SCHOOMBEE: No.

GAUDRON J: So in point of legal theory we are looking at this, are we, as an application for declaration or injunction in accordance with established public law principles, or should we treat it as an application for prohibition?

MR SCHOOMBEE: Your Honour, the reason why we did not bring this on prerogative writ proceedings were really twofold. The first one was that it was an action based case referring to the reference to the old law, it was breach of a duty, and related to that it raised very substantial factual matters.

GAUDRON J: Why would you not, if you are right about the duty, would you not be entitled to an order for mandamus under ordinary or traditional public law concepts, that the CALM people take reasonable steps to identify, locate, et cetera, the endangered species, and prohibition to stop them authorising logging or engaging in logging until they had done? Before you answer these questions, the reason why I ask about the traditional prerogative relief matters is that it may well be that the standing considerations on those would be very very different from what they might be for a declaration, or what they might have been in equity, which was the source of the jurisdiction or the authority to grant declaratory relief.

MR SCHOOMBEE: We accept that. The twin reasons were that we were dealing with actions and there is a problem to what extent mandamus or prohibition could extend to matters that do not involve a decision of that nature but simply actions. And the second and practical - - -

GAUDRON J: By actions, you do not mean an action in law, you mean the conduct?

MR SCHOOMBEE: Yes, the conduct. I apologise for the misleading terminology.

KIRBY J: Whatever you might have done or might in future do under the public law, you have not done it here. You have just got the pleading which does not raise public law in it.

MR SCHOOMBEE: I would, with respect, disagree with that. We raise public law remedy of a declaration which is probably one of the most important law remedies in law in this country and others.

KIRBY J: It does not raise prerogative in the old prerogative ways.

MR SCHOOMBEE: But I would respectfully say, in the other areas, simply the instruction that has gone out from the Supreme Court not to raise matters dealing with complex matters of fact on prerogative writ, because of the problem of fact finding, the matters go to the Full Court, there is no ready mechanism for dealing with disputes of fact. You have to really try and fashion a procedure and his Honour Justice Ipp has gone on record, certainly in a talk, and saying, on complex matters of fact, as far as prerogative relief is concerned, do not do it because it raises difficult matters, there is not the mechanism. It is not like the AD(JR) Act where you have streamlined procedures, where it is fairly easy to test these matters. Certainly, in my experience, although it is notionally accepted and I have argued notionally that you could get cross-examined, discovery, and that is certainly never followed. I have never heard - - -

HAYNE J: You cannot seek mandamus by an action, you must seek it only by order nisi procedure, is that so?

CALLINAN J: Is that right, under your rules of court? Because in some places you can do it by action, or you could do it by action before it was replaced by the new procedures. What do the Western Australian rules provide?

MR SCHOOMBEE: The one matter where there is a question that you could shift is prohibition. In a prohibition case they can order the matter to proceed on pleadings. But for some other, I have looked in here, I have never been able to understand why prohibition, but it does not apply to mandamus or certiorari.

CALLINAN J: Could you provide us with an extract of the rules that deal with that?

MR SCHOOMBEE: For the prerogative relief, sure, I will do that.

KIRBY J: Perhaps a refernce to Justice Ipp's decision which has moulded your practice.

MR SCHOOMBEE: It was not a decision, it was a talk that he gave to the Law Society.

KIRBY J: It was just an exhortation in court.

MR SCHOOMBEE: In very strong terms, yes, and it was done, and I have explained what the basis for that is, that there is not, and also - - -

HAYNE J: Could I add to the difficulty for you, in this respect. The availability of other remedies is a matter that, for the moment, excites my attention, because it is not immediately plain to me that the judgment that has been given and the judgment entered in the action stands as a bar to further action brought by you to raise the same issue. If that is so, that may be a very lively question in connection with the grant of special leave if, for example, a view were to form that a simple action has been extraordinarily overelaborated in pleadings, and the point which is sought to be agitated could be agitated on proper pleadings issued afresh.

You may find a assistance in the Tampion v Anderson litigation [1973] VicRp 82; 48 ALJR 11, culminating in the Privy Council, in which at least, as far as I understand it, suggests that the judgment entered in circumstances of this kind is interlocutory. It is an interlocutory order and does not finally determine rights. But there are, no doubt, many other cases that will bear on the subject and I simply draw it to your attention before we adjourn.

MR SCHOOMBEE: Yes. Can I just say this, in a short response to that, maybe I will make a fuller response, that the Full Court's judgment would stand in Western Australia on the substantive questions. No matter what case we bring, whether we bring a prerogative writ or whether we replead the action, we will be confronted with the same matter, not perhaps as a technical issue of res adjudicate, I accept that, but simply as a matter of precedent.

McHUGH J: I know, but I think what is being put to you is that a properly pleaded case might be a more suitable vehicle for the grant of special leave to appeal against what would be in effect the Full Court's judgment in this case, than the present case is.

KIRBY J: I suppose you could say, in response to that, that even with a properly pleaded case, if the Full Court - if nothing happened and this Court said nothing, it could be assumed that the Full Court would follow the approach, which it has, and it would be equally fatal to a well pleaded pleading. It would say, unless there is a lack of bona fides or a lack of honesty you cannot really challenge a management plan or pursuant to the management plan. Whilst that holding stands, and until it is removed by this Court, if it is incorrect in form, then you can plead until you are blue in the face and it will not make any difference in West Australia.

MR SCHOOMBEE: Absolutely, in whatever route I take, and I mean - - -

HAYNE J: In a well pleaded case, we might at least see what you say.

MR SCHOOMBEE: I hear what your Honour is saying. I would just respond to that, that the pleading may have over pleaded in the sense of added detail, but the essence of a pleading, as it stands, alleges a breach, a failure to perform those duties and then goes on to specify and - - -

GAUDRON J: We are to take the specification as the specification of matters inconsistent with the performance of the duty, I take it.

MR SCHOOMBEE: Yes.

KIRBY J: Have you got the pleading here on a diskette which you could do some radical surgery to show what - if Justice Murray's orders had been to grant you leave to replead, and if that is the proper order that ought to have been made by the Full Court, you would have been repleading without all of this exhortatory material or not, or is it a major enterprise? I am just trying to respond to the issues that have been raised with you by Justice McHugh and Justice Hayne.

MR SCHOOMBEE: I can certainly try my level best - diskette or no diskette - to produce the relevant paragraph of the pleading, which is paragraph - - -

McHUGH J: See, the problem that frequently arises is that, as the arguments go on and the case comes up to different layers, counsel refine their arguments, they get better insights, they try to justify and make some amendments to pleadings, when it would be much better if they started afresh now with all their new knowledge.

KIRBY J: The High Court of Australia alway seeks to be helpful in pleading matters.

MR SCHOOMBEE: I would certainly exhort the Court to do that and to say that if we had to start afresh in these matters, it would really not be worth it because we would have these findings against us which stand as the findings of the Supreme Court of Western Australia and these are not pleading matters.

McHUGH J: I know. You would lose. You would be struck out in a flash in Western Australia but at least you would come up here with a clean pure document.

MR SCHOOMBEE: With respect, the pleading is not that bad, that I have to say at this stage. No, I really have to dig in my heels. It is not that bad. Pleadings have to be read. In the old Roman law, if you made a plus petitio, if you said something demure you were out. But, really, we do not have a plus petitio rule in our pleading but, if you say something and you go with the formula and you say two words extra, you were out. Really, that is not the understanding of the pleading and then I would respectfully echo the observation his Honour Justice Kirby made. Because it is not a case that the pleading, in itself, is convoluted, I can take those allegations, they stand there, we then go on. But - - -

GAUDRON J: The problem may be that they do not marry up precisely with your argument.

McHUGH J: Or the duty, because you may have to give consideration as to whether these things identify and locate, et cetera, have to be done within a reasonable time or done reasonably or to take reasonable steps, all of which can affect the content of the duty. At the moment, they have pleaded in absolute terms so that if there was a failure to identify the day after the plan was promulgated, there was a breach. That cannot be the - - -

MR SCHOOMBEE: That is not consistent, with respect. That is not consistent with our pleadings. Our pleadings say that they must inform themselves, we put down the matter going to proper information for the forest system and then we go to pre-logging. It is no way that we are suggesting any way that it is a simple - that is why the pleading is in the form it is, we are avoiding a simplistic assertion, "Oh well, you have not done anything", which would, in fact, apply to the very day the management plan came. We are looking at specific management plans. We are not looking at the forest administration, we are looking at management plans that have been particularised. We say before you decided and they started logging and were about to go ahead when we brought the case and the original injunction was granted.

GAUDRON J: Well let us not go into the facts, if you do not mind. It is complicated enough without your elaborating them, but you might like to consider over the course of the adjournment whether you can formulate your case with pleading precision so that we can understand precisely the argument that we have to grapple with.

MR SCHOOMBEE: As it pleases the Court.

KIRBY J: Keep in mind that at least three of us were brought up in a very much tighter pleading environment, whilst we have to - - -

HAYNE J: I will not embark on the discussion.

McHUGH J: You might see that if they have got the third edition of Bullen and Leake here.

GAUDRON J: In the meantime, I think we can adjourn until 10.15 am tomorrow.

AT 4.17 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 2 APRIL 1998