Wong and ORS v Silkfield Pty Limited B54/1998 [1999] HCATrans 109 (16 April 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B54 of 1998

B e t w e e n -

JAMES WONG, JANICE WONG and JULIAN FLIGHT

Applicants

and

SILKFIELD PTY LTD

Respondent

Application for special leave to appeal

GUMMOW J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 APRIL 1999, AT 10.09 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR D.A. SAVAGE, for the applicants. (instructed by Attwood Marshall)

MR H.B. FRASER, QC: If the Court pleases, I appear with my learned friend, MR C.J. CARRIGAN, for the respondents. (instructed by Clayton Utz)

GUMMOW J: Thank you. Yes, Mr Jackson.

MR JACKSON: Your Honours, this application is concerned with Part IVA of the Federal Court of Australia Act 1976 and, in particular, with section 33C, the provision which states the requirements for commencing a proceeding, that is a "representative proceeding" to use the term of the Act, but more particularly, again, the application is concerned with the meaning of the phrase, "substantial common issue of law or fact" used in section 33C(1)(c). The view taken by the majority of the Full Court - and I shall seek to demonstrate this in a moment and indicate to your Honours where the crucial passages are - was that such a common issue first was an issue - is one method of description of it - "was an issue with some special significance for the resolution of the claims of all the group members", on the one hand, and, secondly, another method of description of it, "is likely to have a major impact on the conduct and outcome of the litigation".

Now, may I indicate to your Honour where those two passages are to be seen. The first is at page 51, about line 28. That is at the bottom of page 51 and their Honours say:

Parliament showed that it intended that a common issue would be a justification for the use of the new procedure only where it was an issue with some special significance for the resolution of the claims of all the group members.

Your Honours, the second reference I gave is at the end of the same paragraph, about line 5 on page 52, where their Honours say it must be something, to put it shortly:

common to the claims of all group members is likely to have a major impact on the conduct and outcome of the litigation.

Your Honours, the majority view, that of Justice Foster, may be seen in two passages, first at page 33, lines 4 to 16, the first new paragraph on that page, and, secondly, at page 36, at the top of the page, the first paragraph on that page.

KIRBY J: Could you encapsulate what you say is the difference of view, the streams in the Federal Court ?

MR JACKSON: Yes, your Honour. The difference of view seems to be this - if I could say the minority view, first - it is that the issue which is the substantial common issue is one, which is, if I could adopt the words of Justice Foster, "one which arises in the proceedings and is one which is of some weight and some significance. It need not be one which by itself is decisive of the proceedings or one which takes away, for example, more than half or two-thirds or something like that of the proceedings". On the other hand, the view of the majority, and it is put in a number of different ways, appears to involve, quantification of the issue, that is the major impact, but allied to that is the other feature that it involves a comparison of the relatives - of the significance of that with the significance of the other issues in the proceedings.

GUMMOW J: This all seems to assume that there are pleadings. These criteria seem to assume there are pleadings from which one can derive the issues.

MR JACKSON: That is so, your Honour.

GUMMOW J: Were there pleadings in this case?

MR JACKSON: In a statement of claim, your Honour, yes - application and statement of claim. Could I say in relation to it that section 33 is a provision which deals with the institution of the proceedings.

GUMMOW J: Yes, that is right.

MR JACKSON: That was going to lead me on to the next thing I was about to say, your Honours, that the respondent's argument seeks to treat the Full Court in declaring that the proceedings had not been properly constituted as really exercising a discretion. Your Honours will see the respondent's argument at page 79, paragraph 14.

KIRBY J: The monitor says that it has become mute in Brisbane. I think they are entitled to have your words - - -

GUMMOW J: We are back on track, now.

MR JACKSON: Yes. Your Honour, many questions I have been asked here have made me stand mute, I am afraid.

HAYNE J: Not even a dock statement, Mr Jackson?

MR JACKSON: Your Honour, sometimes I felt the Court might prefer if it I had stood mute. Your Honours, I was referring to page 79, paragraph 14, to say that the respondent's argument seeks to treat the Full Court as exercising a discretion. What we would seek to say in relation to that is, first, that there is no discretion involved under section 33C(1).

GUMMOW J: Yes. What is the actual text?

MR JACKSON: The text, your Honour, is this, that:

Subject to this Part, where -

and then there are three criteria stated. The first is that:

7 or more persons have claims against the same person -

the second, your Honours, is that:

the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances -

and both of those tests were satisfied in this case. The third then, is that:

the claims of all those persons give rise to a substantial common issue of law or fact -

Now, your Honours, those are all tests and they are tests which relate to the commencement of it. Under the terms of section 33C(1) "a proceeding may be commenced" if those requirements are satisfied.

KIRBY J: If there is any discretion it seems to be the discretion of the plaintiffs as to whether they commence proceedings or not, once they have the pre-conditions.

MR JACKSON: Quite, your Honour, yes.

HAYNE J: But the discretion intrudes, does it not, under 33N?

MR JACKSON: Your Honour, that is what I am about to say, that at present the potentially relevant discretions are not section 33C but can be seen, for example, in 33Q and 33N.

GUMMOW J: Yes.

HAYNE J: Therefore, is the question which you seek to agitate a question that will become obscured by the discretionary considerations presented by 33N?

MR JACKSON: Well, your Honour, the present position is, of course, that the issue, so far as we are concerned, is one where the order of the Full Court has declared that the proceedings are not properly commenced, therefore we, in effect, cannot go ahead with them as proceedings under the Act, unless this Court decides otherwise.

GUMMOW J: But what was it that triggered the decision-making process in the Federal Court to decide it was not properly commenced?

MR JACKSON: An application, your Honour, that was made for such a declaration.

GUMMOW J: But under one of these later sections?

MR JACKSON: No, your Honour. Your Honours, will see that dealt with at page 1 in the primary judge's reasons at the - it refers to the notice of motion filed on behalf of the respondents, the first paragraph of the primary judge's reasons.

GUMMOW J: Yes, I just wondered if that did not disguise the fact that it was brought under one of these later sections. That seems not so.

MR JACKSON: No, it is not so, your Honour, and your Honour will see that at the bottom of that page there is a reference to "the alternative" an order being sought under 33N. The primary refused to make the order that was sought but the Full Court, by majority, did that, your Honour.

GUMMOW J: Yes, but did it explain on what footing it was doing it, that is what I am mystified about?

MR JACKSON: No, your Honour, what the court did - - -

KIRBY J: Does the form of the order indicate that?

MR JACKSON: Your Honour, it is page 57, the last paragraph, and the formal order is page 59, but it simply is - - -

GUMMOW J: They made a declaration.

MR JACKSON: It simply seems to be a declaration.

GUMMOW J: Yes. I suppose one might say that it is something that might have been done, in effect, on the way to striking proceedings out but that is, of course, perhaps inapposite because the three applicants can continue the proceedings as theirs.

HAYNE J: But the fact that the Full Court did not strike out the proceedings raised in my mind the question whether in truth they were making orders under N. They framed this declaration. Leave that aside for the moment.

MR JACKSON: Yes. Your Honour, the answer to that, with respect, is no, because your Honours will see in the Full Court's reasons that what they go out of their way to say - I will give your Honours a reference in just a moment - is that the presence of section 33N does not bear on the question of whether the proceedings have been properly commenced.

KIRBY J: If it is the discretion under N, at least it indicates a certain obscurity in their attention to the matters that inform the exercise of that discretion.

MR JACKSON: Indeed, your Honour.

GUMMOW J: Well, they certainly do not seem to have said that they were satisfied of the various matters mentioned in N. The Full Court certainly does not seem to have gone through 33N and said, "Well, we are satisfied of this, and, therefore" - - -

MR JACKSON: No, your Honour. Your Honours will see at page55 at about line 24 their Honours refer to the fact that:

Although he did not refer specifically to s 33N, it is clear enough that -

the primary judge -

also declined to make an order under that provision - - -

KIRBY J: Could the respondents come up and by notice of contention seek to support the order on the basis of N and then we get to the to the result that it has all been futile?

MR JACKSON: It would be a little difficult for them to do so and I say that because it would raise a serious question whether such an issue, albeit it by a respondent, might be taken in this Court for the first time because that is - - -

HAYNE J: But the application - the notice of motion sought relief under N, did it not?

MR JACKSON: Yes, your Honour.

HAYNE J: How is it taken for the first time here then?

MR JACKSON: Your Honour, I am sorry. Your Honour is right. I think the point I made may not be correct. It would require looking at the material that is not here and that is what material there was on the application so far as it might concern section 33N. Now, I am not debating that the motion sought that but whether the proceeding, so far as the Full Court was concerned, dealt with that is another question.

KIRBY J: What is the importance of this case? Have there been earlier cases in this Court on the representative proceedings part of the Federal Court Act or not?

MR JACKSON: No, your Honour, no.

KIRBY J: Has this Court ever looked at the issue?

MR JACKSON: No.

GUMMOW J: What is the present status of this motion at page 84 and 85? May not the appropriate course be to, so far as this Court is concerned, not deal with this present application until that motion has been dealt with below? The problem may completely go away if that motion is successful.

MR JACKSON: Yes. Your Honour, the motion is not going ahead, pending the determination by this Court.

GUMMOW J: It seems the wrong way around.

MR JACKSON: Well, your Honour, it is a possible way of dealing with the matter to, in effect, give notice that this is the course that may be taken if the application to this Court is unsuccessful, rather than to leave the matter in - not in limbo but leave the issue completely untouched.

GUMMOW J: Yes.

MR JACKSON: Could I just say a couple of other things about the matter and that is that the Full Court itself did appear to regard the present issue as one of some importance. That is a germane matter. Your Honours will see that in the last paragraph of their reasons at page 57.

GUMMOW J: Yes. I do not think there is any doubt of the importance of these provisions.

MR JACKSON: Could I also say this, that the present case is one where the common issue was one which was clearly identified and it was one which if decided in favour of the applicants would have founded a cause of action. What I mean by that is that your Honours will see the relevant part of the pleading extracted at page 40, at the bottom of the page, and the part that the Full Court held was, on any view, a common issue, is that which is referred to as paragraph (a)(ix) halfway down page 41 and the Full Court's reference in that regard may be seen at page 45, about line 20.

GUMMOW J: Now, this question, the stood over notice of motion, what does that fix upon? Does that fix upon a different common issue?

MR JACKSON: The amended application would deal principally with the document which your Honour will see at page 91 which is the investment pack and goes beyond, I think, what was held by the Full Court to be the common issue.

GUMMOW J: But was the investment pack before the Full Court in the earlier pleading.

MR JACKSON: Yes, your Honour, it was common to all the 18 identified group members but the Full Court said it was not common to other people who might become members of the group who may choose to remain in the group.

HAYNE J: If a court were properly satisfied that 33C had not been met, what orders could the Federal Court make in those circumstances and what orders should it make if satisfied that 33C was not met?

MR JACKSON: What it could do would be a number of things. One might be to stay the proceedings in so far as they were sought to be continued as proceedings under Part IVA. Another would be to make one of the possible orders under one of the provisions of that Part which deals with particular cases, and, your Honour will see, for example, that section 33P refers to a number of sections, 33L, M and N, which have potential operation. Now, section 33L refers to the number of people. That is one class of case. Section 33M refers to cases where it would be inappropriate, and that perhaps does not directly answer what your Honour has put to me, but, perhaps, in some cases 33N(1)(b) would be an appropriate course, but otherwise, the proper order one would suspect be an order staying the proceedings - - -

HAYNE J: Or striking it out.

MR JACKSON: Yes, your Honour. As a matter of discretion that might be a possibility, your Honour. It would seem, however, with respect, if the persons who were the parties did themselves have causes of action then, subject to any question of the joinder of those individuals in the one action, it would seem inapt to strike the whole proceedings out, so far as - - -

GUMMOW J: What was really being said was that 33C is a jurisdictional constraint, really, for this new creature and that would found a stay, I suppose.

MR JACKSON: Yes. Your Honours, could I just say two more things? One is that the approach taken by the Full Court, in our submission, is likely to reduce substantially the potential utility of the procedure. The second thing is that we accept the issue is, in one form of categorisation, a question of practice and procedure, of course, but it is an important one, potentially.

GUMMOW J: Yes. Yes, Mr Fraser.

MR FRASER: May it please the Court. The respondent submits that special leave should be refused in this case for three reasons: firstly, that the judgment of the majority does not establish the dispositive test which has been suggested by the applicants but rather merely identifies in an unexceptional way a range of considerations which are relevant to the value judgment involved in deciding whether the identified common issue is substantial; secondly, that the proposed appeal would really be concerned with the form of the order rather than its substantial effect because it appears from the majority's reasons that their Honours would, in any event, have acceded to the respondent's application to terminate the proceedings as representative proceedings in the exercise of the discretion conferred by section 33N and, thirdly, because the appeal concerns issues which are or may become hypothetical as a result of the - - -

GUMMOW J: Do you say the Full Court acted under 33N, as well?

MR FRASER: No, your Honour. The third point was that the appeal concerns issues which are or may become hypothetical because the applicants' solicitors have recently been instructed to alter the definition of the group in a way which would significantly affect the proceedings. As to the first point, we would direct your Honours to page 50 of the record where, in the paragraph commencing at about line 4, the majority referred to the value judgments involved in the word "substantial" and explained that - - -

KIRBY J: May I interrupt you, Mr Fraser, to say that there seems to be no audio from the video monitor in front of the judges and we are getting audio out of the side video monitor. Somebody should be informed about this because if this is going to go on all day it will make our job even harder. Just press on but bear in mind that - - -

GUMMOW J: We will strain to hear you.

KIRBY J: Yes.

MR FRASER: I will see if I can improve my audio quality, your Honour.

GUMMOW J: I do not think it is your fault at all, Mr Fraser. Now, you have taken us to page 50.

MR FRASER: Yes, your Honours, in the paragraph starting at about line 4, after referring to the imprecision involved in the word "substantial", their Honours explain, in my respectful submission, what they set out to do which is to provide guidance as to the range of considerations which are relevant in making the evaluation. Now, their Honours then do that and your Honours will see that at page 52 of the record at about line 7 their Honours deal with a previous decision in Connell's Case which had, on one view, suggested that the only way for determining whether the common question was substantial was by comparing the impact of it on the litigation with the impact of the non common issues.

Their Honours, in effect, overruled that view and make the point, at about line 14, that:

In view of the objectives of the legislation to which we have referred, that imprecise word is well capable of making such a comparison a consideration relevant to whether s 33C(1)(c) is satisfied in the particular case -

So, in my respectful submission, if there is any question of principle involved at all it is only the question whether it is open to a court in determining whether the issues are substantial to look at the other issues and as to that, in my respectful submission, one only need look at section 33C(1) to see that it must be relevant. That provision does not simply, in my respectful submission, ask the Court to look at this question as a matter of theory or divorced from the case but it requires that the claims - - -

KIRBY J: But that provision is not addressed, at least in the first instance, to the Court at all, it is addressed to litigant and the rights of the litigant, if they can reach the preconditions of (a), (b) and (c).

MR FRASER: Yes, your Honour, quite.

KIRBY J: I mean, obviously, once they do, the Court has to make sure that that is so but it is not a discretionary matter, it is a matter of right once the litigant has the preconditions.

MR FRASER: I accept that, your Honour, and our submissions use the word "discretion" in the sense of the word "substantial" raising discretionary judgments in itself because of its nature.

GUMMOW J: It is not a discretionary judgment. It may be a difficult judgment.

MR FRASER: Yes.

KIRBY J: It is evaluative.

GUMMOW J: Yes.

MR FRASER: Quite, your Honour.

GUMMOW J: This word "discretion" is worked to death, it seems to me.

KIRBY J: It is thrown around, especially on special leave days.

MR FRASER: Yes, your Honour. But, the point I was seeking to make was that the claims themselves are what must give rise to the substantial common issues so that just as one must look at all of the issues to determine which of those are common, in my respectful submission, it is clear that one may at least look at all of the issues to determine which ones are substantial common issues.

KIRBY J: But is it not fair to say that if the criterion adopted by the majority is applied and the approach of the majority is applied then the representative proceedings legislation is going to have a much more circumscribed operation than if the view taken by the minority is applied and there seem to be two streams of view in the Federal Court?

MR FRASER: We would respectfully submit that their Honours do not set out to provide an exclusive code or criterion in substitution for the section but merely set out to indicate the range of considerations which are relevant and we would respectfully submit that therefore the answer to your Honour's question is "no", that it will still depend in each case on an evaluation of that inherently imprecise phrase in the provision. The second ground for our submission - - -

KIRBY J: If that were so then this very important piece of legislation which the Full Court held to be important would never come here because you would say in every case - or a person in your position would say, "It is purely evaluative".

MR FRASER: Except in situations in which their might be debate about whether it was appropriate to take particular matters into account. In all cases, of course, the Court can only take into account the matters which the legislation permit it to take into account but there is still room for appeals, your Honour.

GUMMOW J: What do you say is the significance of this pending motion that relies on the investment pack? When I say "significance" I mean significance for this morning.

MR FRASER: The significance is that it, in my respectful submission, means that the application or the appeal, if it were to proceed, would really or might really have no practical or enduring significance in the litigation. The motion seeks to do two things, or the proposed amendments do. Starting at page 103 of the record, they would redefine the class. The class is defined, or the proposed group is defined in paragraph 2 of the amended application and the addition is over the page in subparagraph (b).

GUMMOW J: Now, (a) was already there.

MR FRASER: Yes, your Honour, (a) is there.

GUMMOW J: That has been held not good enough by the Full Court?

MR FRASER: Well, it has been held that - - -

GUMMOW J: What is the present standing of (a) after the Full Court decision?

MR FRASER: The present position is that the proceedings cannot continue as representative proceedings, your Honour, but can continue as proceedings by named applicants.

GUMMOW J: No, but what is the present standing of (a) after the Full Court with respect to a representative proceeding?

MR FRASER: Well, the court has found that with the class defined only with reference to (a) that there is no substantial common issue.

GUMMOW J: Yes, that is what I thought.

MR FRASER: And, if one goes to (b), the class would narrowed by adding an additional requirement for members of the group. Then that ties in with the new allegation on page 105 of the record in (x) because that alleged misrepresentation is contained, or said to be contained, in the projections document. So, the effect of the amendments would be to redefine the group and then to add an issue which might, depending on how the matter was pleaded, be an additional common issue and, of course, would also raise other non common issues concerning reliance and so on.

GUMMOW J: Thank you.

MR FRASER: So, our submission is that the proposed appeal either is or might very shortly after the appeal become hypothetical and of no significance to the parties.

KIRBY J: Well, you say the applicants should go away and go ahead with their motion and see if that motion gets up. (a) might not on its own but in combination with (b) and the other matters pleaded, be sufficient, and if they are still discontented they can come back?

MR FRASER: Yes, your Honour, and that does seem to really tie in with the form of the order made by the Full Court at page 59 of the record because the declaration in paragraph numbered 1 of course concerned only the proceedings as then presently framed.

GUMMOW J: Yes. The motion does not contradict that order.

MR FRASER: No. No, of course not. So, that we would respectfully submit that the Court should not give special leave, at least as the matter is currently proceedings.

Your Honours, the other ground which was really our second ground for submitting that this is not an appropriate vehicle was that the appeal is really concerned with the form of the order rather than its substantial effect. I should point out that at page 38 of the record in the very first paragraph of the reasons for judgment of the majority it is made clear that the motion was brought both in terms of section 33C and for an order under section 33N of the Act and I accept that the Court in fact dealt with the matter on the basis of section 33C but the way in which the majority dealt with it, in my respectful submission, clearly demonstrate that the majority concluded that it was inappropriate for case management or discretionary reasons, as well, for the proceedings to continue as representative proceedings.

KIRBY J: But where Parliament has provided the regime and provided 33N would it not be desirable that the Full Court should, or the Federal Court should concentrate its attention on N with the criteria which Parliament had laid down?

MR FRASER: In my respectful submission, when the Full Court was faced with a proposition that the proceeding was not properly constituted, in the first place, under C, as well as the alternative application under N, it really had no alternative but to deal with both and I suppose as a matter of logic it might be said that it was logical to deal with 33C first. Having done that, there was no room for an order under section 33N.

Your Honours, what happened was that before his Honour the primary judge, before Justice Spender, his Honour, at least inferentially, as appears from page16 of the record, rejected the current respondent's application under section 33N. At about line 17 his Honour referred to the motion filed by the present respondent, which included other relief, and at about line 20 his Honour mentioned that his Honour thought he court could consider the common issues which would go a long way to determining the claims by the respondent, on the one hand, and the applicants on the other. His Honour then dealt with some case management type issues. That is really where his Honour appears to have rejected the motion under section 33N. But, your Honours will see that his Honour does so with reference to his Honour's evaluation of what were the common issues.

His Honour had described those at page 14, at about line 10, as including a number of different issues, only one of which was the question concerning the representations about the section 49 statement. So, his Honour found quite a number of common issues. But, on appeal, all the members of the Full Court held that there was in fact only one issue common which was that issue concerning the accuracy of the section 49 statements. That appears from the judgment of his Honour Justice Foster at page 31 where, at the bottom of the page, his Honour adopted the majority's analysis of the issues and expressly found that there was only one issue of fact which was common and his Honour then set it out.

KIRBY J: It is a pretty important common fact, is it not? I mean, this seems, with every respect to the majority, to be a very negative approach to reformatory legislation. I mean, I do take your point about the suggested prematurity of this application. I think that is a valid point you make but with every respect to their Honours in the majority it seems a very negative approach which unfortunately is going to rob this legislation of its effectiveness, if it is upheld and followed.

MR FRASER: In my respectful submission, what the majority in fact did was to precisely evaluate what the issues were, as they did appear from the pleadings and the particulars and to find that his Honour, the primary judge, had been mistaken in considering there were a number of issues arising amongst the multitude of issues in the case, finding there was in fact only one issue. The majority dealt with that at page 45 of the record, in the last paragraph starting near the bottom, and then evaluated the question whether the common issue was substantial with reference to that decision that there was, as all judges in the Full Court found, only one issue. Then, from about page 54 - - -

KIRBY J: Their Honours' view of "substantial" reminds me of the view of some trial judges in my youth about the onus of proof that lay on plaintiffs. It is a very big "substantial" that their Honours seem to think the applicants carry, whereas the purpose of the legislation is quite the opposite, I think.

MR FRASER: Your Honour, what, in my respectful submission, the majority do from about page 54 is to really look at the case from the point of view of case management and - - -

GUMMOW J: What does that mean?

MR FRASER: Well, they look at the case - in order to determine whether the issue is substantial, they do have reference to the effect that that common issue would have in the litigation and therefore in evaluating its substantiality they also evaluate an issue which is the same as the discretionary issues the court would evaluate under section 33N.

KIRBY J: But this is case management with a difference. This is case management with a signal from the Parliament that it will be conducted in a representative manner if the appropriate degree of substantial connection of the facts can be demonstrated.

MR FRASER: Yes, your Honour, and in my respectful submission - - -

KIRBY J: The Court is not completely at large.

MR FRASER: I accept that, your Honour. In my respectful submission, their Honours were entitled to evaluate the question of substantiality with reference to the claims, which included all of the issues, as well as with reference to the inherent significance of the issue. Your Honours, I do not think there is anything further I can say, in addition to what I have said for submitting it is not an appropriate vehicle. May it please the Court.

GUMMOW J: Yes, thank you, Mr Fraser. Mr Jackson.

HAYNE J: Before you begin, Mr Jackson, can I ask you this question: where you have indicated an intention to amend, what injustice does your clients suffer by leave being refused to test an interlocutory ruling on what is, after all, a question of practice and procedure?

MR JACKSON: Your Honour, could I say two things about that? The first is, if one looks at the ambit of the proposed amendment, it may be seen, in our submission, that it does not really do a great deal. What I mean by that is, if I could take your Honour to page 103, you will see in paragraph 2 it identified the members of the class as being - - -

KIRBY J: Be careful of what you say here, Mr Jackson, you might be saying something different to the Federal Court in a few weeks.

MR JACKSON: Well, your Honour, if I were to do that it would be something that would have had the benefit of the view of this Court and be changed because of that, but, your Honours, what I am seeking to say is if you look at page 103 you will see the class is referred to as those persons who were served and provided with the statement pursuant to section 49. If one goes, then, to page 104 - - -

HAYNE J: And that is a different and narrower class from the earlier class, is it?

MR JACKSON: No, that is the class. That is the current class.

HAYNE J: It is the same class. Yes.

GUMMOW J: The current and bad class, according to the Full Court.

KIRBY J: Well, insufficient.

GUMMOW J: Insufficient class?

MR JACKSON: Yes, but your Honour will see on the document - you will see the different class sought to be added at the top of page 104.

GUMMOW J: Yes.

MR JACKSON: But, the document is something that is already referred to in paragraph 3(a)(vi) so that all that amendment, so far as that is concerned, seeks to do relevantly is to perhaps redefine the class a little. Now, your Honour, that is the first aspect of it. The second aspect of it is what injustice is there? Well, the position is this: if the law is as it remains we are in a position where we cannot proceed with the current application - the current proceedings - unless we are able to amend them in a way and by reference to a test which the Full Court has already applied, and, your Honours, even the amendment will be subject to the same test. The second feature I wanted to mention, your Honour - - -

GUMMOW J: We do not want to hear you any further, Mr Jackson. There will be a grant of special leave in this matter.

AT 10.48AM THE MATTER WAS ADJOURNED