Rolfe, Ex parte - Re Transworld Marine Agency NV & Ors S176/1999 [1999] HCATrans 377 (8 October 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S176 of 1999

In the matter of -

An application for a Writ of Prohibition against THE HONOURABLE CHIEF JUSTICE MICHAEL ERIC JOHN BLACK, JUSTICES RICHARD ELLARD COOPER and RAYMOND ANTHONY FINKELSTEIN, sitting as the Full Court of the Federal Court of Australia

First Respondents

and

TRANSWORLD MARINE AGENCY NV

Second Respondent

Ex parte -

JAMES GEOFFREY ROLFE

Applicant/Prosecutor

KIRBY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1999, AT 3.22 PM

Copyright in the High Court of Australia

DR G. GRIFFITH, QC: If your Honour pleases, I appear with MR M.R. ALDRIDGE, for the applicant. (instructed by Goldsmiths)

MR D.E. GRIEVE, QC May it please your Honour, I appear with MR J.S. WHEELHOUSE, for the second respondent. (instructed by Deacon Graham James)

HIS HONOUR: Yes, thank you.

MR GRIFFITH: Your Honour, my friend indicates that he has only just received the papers and has not had a chance to consider his position yet. We thought it appropriate to serve the other side, rather than proceed ex parte. The absence of urgency is that by order of the Federal Court, the Full Court having given its judgment and being itself apprised of the post-Wakim issues, your Honour, that by directions of the court for the exchange of submissions as to what should happen next, it would seem that any time after next Tuesday there is a real possibility that the court might make orders on the judgment delivered which would be, in our submission, to give rise to a prejudice to our position - or at least strongly arguable.

HIS HONOUR: Would that be so if the entry or perfection of those orders was stayed?

MR GRIFFITH: No, the making of the order could be the prejudice, your Honour. When one sees the transcript of the exchanges before their Honours after the judgment, which is exhibit GG2, one sees that the court adverted to the possibility that even admittedly acting without jurisdiction, that if an order were made it would be regarded as merely voidable rather than - - -

HIS HONOUR: Just let me get the things clear. Wakim was decided in July and at that time the Full Court of the Federal Court had reserved before it an appeal from Justice Tamberlin.

MR GRIFFITH: Yes, your Honour.

HIS HONOUR: In September it pronounced in open court the orders which it was minded to make.

MR GRIFFITH: The reasons, without making the orders, your Honour. It indicated that it would deliver its reasons - - -

HIS HONOUR: I thought that their Honours - I just had time to look at this very quickly. I thought their Honours did say that - Mr Grieve seemed to want to interrupt them - and then when he got the message that the matter was in his client's favour, his enthusiasm for interruption seemed to disappear.

MR GRIFFITH: I was just going to say, your Honour, I intended to adopt his arguments up to line 39 on page 12 to base my application for the order nisi. But the short point is that the Full Court have indicated that they are minded to allow the appeal and, your Honour, they have in the exchanges comprised in that transcript indicated a disposition to take an approach that they do have jurisdiction to pronounce such an order and, on the assumption apparently that would have some arguable operative effect as being a voidable order rather than a void order. We would say that in our submission, the matter being entirely cross-vested under the Victorian Act which has no effect in the post-Wakim environment, that there has been no effective jurisdiction either by Justice Tamberlin nor by the Full Court.

HIS HONOUR: Even though they are both exercising jurisdiction in a superior court?

MR GRIFFITH: Your Honour, our submission will be that the matter stands as it was when it was ordered to be vested by order of Justice Gillard on 8 September 1997.

HIS HONOUR: You say everything from that moment has been a nullity?

MR GRIFFITH: No, your Honour, we would take it from what my learned friend said after page 12 of the transcript that he is of another view and we also, your Honour, would take it that the justices of the Full Court at least are minded, in so far as they see it as permissible, to, appreciating the force of the Wakim decision, as likely as not to purport to make orders and to therefore enliven issues as to whether or not any order so made in the circumstances where there was no jurisdiction none the less might have some operative effect as being a voidable, rathe than void, order.

Now, of course, as far as Justice Tamberlin's order is concerned, that was made under the apprehension there was jurisdiction and if there is any effect, that is a matter that may be argued as one works through the post-Wakim issues. But, in our submission, when a court plainly has no jurisdiction, which must be accepted, we say, for all purposes once the High Court decision in Wakim is pronounced, then it is an entirely different situation and the plain excess of jurisdiction for a court which has, we say, no jurisdiction whatsoever in the matter, your Honour, to purport to continue to act and on a basis, it would seem, that the court may proceed to make orders, for what they are worth, even without having a further hearing in the matter; that there is a suggestion in the transcript that the court might have purported to make the orders on the occasion when the order is pronounced and there remains a real possibility, your Honour, that after the expiry of the 14 days in which we have to make submissions on 12 October, the court could proceed to make the orders and cause prejudice to us.

We say that the appropriate situation is to reserve the status quo as is until these issues may be ventilated and determined pursuant to our application for order nisi for prohibition. One can see, your Honour, the arguments flagged and we say a court ready, if not anxious, to purport to continue to act ,with a view to give some efficacy to their judgment. Now, your Honour, if there were no problem about jurisdiction, of course we would accept that and do our best to apply for special leave to appeal on the basis that the judgment of Justice Tamberlin was correct so far as the issue was concerned on the lien of the proceeds. It is accepted, your Honour, that we are entitled to the money. The issue is a question of whether the lien can be maintained.

The present position, your Honour, is that we in effect have the money as a result of the decision of Justice Tamberlin. The money is kept safe. Now, if the Full Court purport to pronounce their order, it may well be that the money will then revert.

HIS HONOUR: Is the money in your client's hands?

MR GRIFFITH: I think it - at the moment it is in our hands, yes, your Honour.

HIS HONOUR: Would you not be able to make your assertions in resistance to an attempt at execution on the judgment?

MR GRIFFITH: Yes, your Honour, but what we would have to then answer in argument is that the order pronounced, against our objection when the court admittedly, we say, has no jurisdiction in the matter, should have effect as a merely voidable order, rather than a void. If the order is not pronounced, we do not have to answer that argument.

HIS HONOUR: I have heard of consequences attaching to the perfection of an order, that is to say taking out the order in the registry of a court, I have not heard of consequences attaching to the pronouncement of the order in court.

MR GRIFFITH: Your Honour, we would detect that at least Justice Finkelstein would contemplate accepting that the court had no jurisdiction in this matter, that an order which could be pronounced by the court next Wednesday could have some operative effect to alter the status quo. The present status quo is that the matter was transferred by order of Justice Gillard pursuant to the Victorian Act.

HIS HONOUR: Could I just ask you this: the Court is on notice that there is legislation being enacted in different jurisdictions - - -

MR GRIFFITH: Nothing in Victoria, your Honour, indeed there is no government in Victoria, and our submission is - - -

HIS HONOUR: There is always a government. The Queen always has her Ministers. I would have thought you would have known that, Dr Griffith.

MR GRIFFITH: It could be said caretaker, your Honour, but the caretaker is outside negotiating about other matters and is not passing legislation this week. So that we say the Court can make no assumptions that there will be perfecting legislation. In our submission, your Honour, if such assumption were made, that would be in our favour because at the moment, if there is no purported order of the Full Court, there would be nothing to be perfected. If an order of the Full Court is made, in contemplation that Victoria will pass a foreshadowed law, then there will be a consequent detriment whereby that judgment will become perfected when it is admitted at the time it is made that there is absolutely no jurisdiction in the matter.

HIS HONOUR: Wakim having been decided in July, and you leaving it until this stage, is it open to the inference that you have been a bit tardy in pursuing your rights in the hope that the announcement of the decision might have favoured your client and when you learned that they did not favour your client, that now belatedly you are seeking to raise an objection to the formal steps that are consequent upon the public announcement of the Full Court's decision.

MR GRIFFITH: Your Honour, I have no instructions, but there are two aspects of astonishment for us: one is that the appeal was decided against us; secondly, your Honour, that the court would propose to make any order inasmuch as Wakim decision be made. My learned friend, Mr Grieve, put it as eloquently as we might have, your Honour, the argument on the hearing of judgment by the court should not do anything. But it is almost as if, your Honour, the court having put all the work in it, it wants it to have some forensic effect. Our complaint is, your Honour, that really on the basis if one assumes no law is passed to remedy the matter by the Victorian Parliament, we would suffer an arguable prejudice, but if the assumption is made, which probably is a correct assumption, that eventually as part of the scheme of rectification Victoria does pass a law in the form as passed in New South Wales, then we suffer a grave detriment because the order will be given full effect, subject to any argument about the constitutional validity of such a State law which, in effect, we would say would be an act of attainer, but that is a matter for another day.

In our submission, your Honour, we are entitled to approach this Court to say it is self evident on the authority of Wakim that the Full Court of the Federal Court, indeed the entire proceedings in the Federal Court, proceeded without jurisdiction and we say we are entitled as of right, your Honour, to an order for prohibition to prohibit any continuing exercise of that jurisdiction. But it is not a matter of standing by and see how we go, it is really the case, until judgment was delivered, when it seems it was the uniform approach of both parties to say the court should not do anything, that excited the problem because their Honours made it clear that they wished to do whatever might be done to purport to make some order, whatever effect it might have, either on the basis of establishing at least, as Justice Finkelstein referred to, a voidable order or, your Honour, we could take it in contemplation that it in due course would be given legislative effect as if it was a valid order.

We say that the court can only proceed on the basis that it has jurisdiction. It may be if jurisdiction is not in issue, that is one thing, and the court of course could continue to deal with the matter up to the time of the Wakim judgment. We understand the practice of the Federal Court has been post-Wakim that in many cases, without even calling for submissions from the parties, justices of the Federal Court in chambers are making directions to in effect avoid any orders which have been made in the Federal Court and to literally send the papers back to the court from whence they came.

HIS HONOUR: Including matters which have been decided at first instance and are pending in the Full Court?

MR GRIFFITH: I understand, your Honour, that some justices of the Federal Court are actually issuing documents revoking orders to say they are of no effect, they are revoked, and sending the papers back to the State or Territory registry from which the matter came. Unless there is a suggestion of some accrued jurisdiction, and of course in this matter there is none at all. It would seem it was vested for the point of view, your Honour, of convenience and hearing in Sydney. But that was an order made over our objection, your Honour, but that is how the matter went and normally, of course, we would have had to accept the jurisdiction.

But our position, your Honour, is that we wish to have this matter determined by a court with jurisdiction and - - -

HIS HONOUR: What I am not clear in my mind is what prejudice is done to your client by the pronouncement of the order by the Full Court next Tuesday.

MR GRIFFITH: One prejudice is that it may reasonably be contemplated, even if delayed, that the State of Victoria enact legislation in similar terms to the uniform form of legislation which has been enacted in this State so that legislative effect will be given to any order of a Federal Court made in a matter where State jurisdiction is cross-vested in the Federal Court. If that happens, your Honour, all my learned friends need do is wait, be it six months or nine months - and this law will probably come a lot quicker, your Honour, than other that might have been referred to in the court in recent days - it would seem inevitable, your Honour, and if that happens - - -

HIS HONOUR: If you adopted the New South Wales legislation, does that attach to orders of the court, assuming the Victorian legislation is the same. Does the order have any consequence?

MR GRIFFITH: My friend might want to dispute that, your Honour, but we say that it being State jurisdiction of Victoria, and the Wakim decision holding that the State jurisdiction is not vested, it would not be possible for a law of the State of New South Wales to give statutory effect to a judgment - - -

HIS HONOUR: I realise that, but if it is assumed that the Parliament of Victoria passes a law in due course in the same form as the law of New South Wales, what would be the consequence of that for an order that is not yet pronounced?

MR GRIFFITH: Your Honour, it could not attach, that it would only - - -

HIS HONOUR: What about Justice Tamberlin's order?

MR GRIFFITH: That might be a matter of argument. But we say it is something to be sorted out - - -

HIS HONOUR: Justice Tamberlin's order was in your client's favour, whereas the Full Court's order is in Mr Grieve's clients favour.

MR GRIFFITH: Your Honour, we are quite happy to go back and argue it on the basis of - - -

HIS HONOUR: You want the benefit of Justice Tamberlin's order but, having argued the appeal, you do not want to have the benefit of the Full Court's order.

MR GRIFFITH: Your Honour, we think we will win this matter anywhere else and we are astonished we did not win it in the Full Court. We are happy - - -

HIS HONOUR: Appellants and respondents are often astonished, alas.

MR GRIFFITH: I know, your Honour. But we are happy to go back to taws, your Honour, and argue it on the basis Mr Justice Gillard is the trial judge. We are not arguing to hold on to Justice Tamberlin's. What we do not - - -

HIS HONOUR: So, the parties to these proceedings are foreign parties, I see.

MR GRIFFITH: Well, your Honour, that is the other difficulty about it. Your Honour, if there is an order which is given effect, either because it is a voidable order only as Justice Finkelstein seems to think is at least strongly arguable, or by reason of the Victorian law coming into effect, then the defendant will get the money back. That will leave the jurisdiction and we will be just left, if the result remains as it is, your Honour, with - - -

HIS HONOUR: But is not that the place and time to provide stay orders so that the money abides the outcome of the application of the law?

MR GRIFFITH: Yes. Your Honour, I am not sure whether we have advanced further than we intended today because I understood Mr Grieve was not ready to proceed and he talks about possibly he might apply for an order nisi for certiorari. I do not know what he has in mind. But, your Honour, that is to indicate the issues but what we say is that - - -

HIS HONOUR: Your point is you say that whatever else happens, that no step should be taken next Tuesday or at any other time that alters the status quo and that the status quo should not be changed, to your advantage or disadvantage, until the Court has been able to deal with what you contend are the legal objections to any further step being taken by the Federal Court of Australia in the light of the publication of the decision and orders of this Court in Ex parte Wakim.

MR GRIFFITH: Your Honour, it is an awful mess and there is a lot of uncertain issues. What we say is whatever is the position, the status quo should be preserved until this Court can determine whether or not, having held, your Honour, that the vesting of jurisdiction was completely ineffective, there is any capacity for the Federal Court to make orders. Whether articulated or not, your Honour, it must be put in contemplation of a Victorian Act upon the lines of the New South Wales Act and at the moment, your Honour, there is also articulation of a view of the Court that it has a capacity to make orders which will have effect on the rights inter partes to be determined in the matter before it when we say we have the authority of this Court's decision that there is no matter.

HIS HONOUR: I understand all that but what is the actual relief that you are seeking from the Court today directed to the - - -

MR GRIFFITH: Has your Honour the draft order? Your Honour, I do not really need any relief before Tuesday. My learned friend indicates he is ready to proceed on Tuesday if that suited your Honour's convenience but at least by the end of Tuesday, midnight, your Honour, we would seek an order in the form of paragraph 2, that, "Until further order" there would be "no further steps" taken "in the proceedings."

Your Honour, this is not a case where it might be put where one is seeking an order against the justices of an inferior court which we would say in the Federal Court we would accept, your Honour, that one should not make such an order.

HIS HONOUR: That is an order directed to the respondents, that is to say to their Honours as well as to Mr Grieve's client.

MR GRIFFITH: Yes, your Honour, yes. Now, your Honour, that is not a case which often comes up that there is an argument about jurisdiction on an application for prohibition. This is a case, your Honour, where we have the authority of six Justices of this Court. We say that there is no jurisdiction whatsoever and, in that context, your Honour, we say there is an unusual foundation of certainty to say, for us to assert, your Honour, reasonably that there should be no alteration to the circumstances, whatever the position of the parties are, until this Court determines whether or not in that situation, the matter of jurisdiction being known and the issue being taken, your Honour, that there is no capacity for the court to do anything.

Our submission is, your Honour, that the court can do no more than take their judgments out of the file and send the papers back to the State registry.

HIS HONOUR: Yes, very well. Thank you. Yes, Mr Grieve.

MR GRIEVE: First and foremost, the transcript of the proceedings before the Full Court on 14 September 1999, being exhibit GG2, do not expose any legitimate places for apprehension of prejudice. When one has regard to page - - -

HIS HONOUR: But if there is no possibility of prejudice, what is your objection to holding the position now until the Court can, in a proper way, come to the conclusion on the legal consequences of Wakim for the proceedings in which your client is involved which are in a sort of, allegedly, no man's land? Why would one not hold the position so that neither party is advanced or prejudiced so that then you can appeal or proceed before this Court and have the appropriate law applied to the case as it stands without a further step being taken?

MR GRIEVE: I understand. The only answer I can offer to your Honour's question is this, that pursuant to an order made by the Federal Court, constituted by Justice Tamberlin, our client has paid over money to the applicant, a very substantial sum of money.

HIS HONOUR: To whom?

MR GRIEVE: To the applicant, our friend's client.

HIS HONOUR: Yes. Is it in a safe place?

MR GRIEVE: No, not at all; it is his to spend. It is not subject to any conditions whatsoever.

HIS HONOUR: May it not be a condition of any such stay that it be brought into a safe place?

MR GRIEVE: Indeed.

HIS HONOUR: That would protect both sides. That would mean that Dr Griffith's client had to disgorge the money to abide the outcome of the case and you had to suffer the disadvantage that the next step in the Federal Court's proceedings were stayed until the court can deal with it and then both of you are in an equal position.

MR GRIEVE: We would have no difficulty with that whatsoever, your Honour, with respect.

MR GRIFFITH: Perhaps I can help.

MR GRIEVE: We would be quite content to have that happen.

HIS HONOUR: Yes. Well, Dr Griffith may see the wisdom of that and be agreeable to it.

MR GRIFFITH: Your Honour, I actually thought it was in a safe place but my friend says not.

MR GRIEVE: No, it is not.

HIS HONOUR: Why would you not bring it into a trust fund with common trustees of the two solicitors? That is what I would have ordered in the Court of Appeal if I had had such a problem.

MR GRIFFITH: I assumed it was safe in one or other solicitor's hands, your Honour, but if that is not the case I am sure we can.

HIS HONOUR: Well, would that not be the solution to the whole matter?

MR GRIFFITH: We just want to keep the money - - -

HIS HONOUR: Because if that were so, I would be inclined to provide you, even today, with an order staying the proceedings and that would save your coming back on Tuesday. You can come back later in the afternoon if you would like. I will be here for some hours.

MR GRIFFITH: Thank you, your Honour, I think today - - -

HIS HONOUR: Many hours, actually.

MR GRIFFITH: It is a bit difficult. It is a Melbourne matter, your Honour, and I was not aware of these - I thought the money was safe anyway, but - - -

HIS HONOUR: Well, that would be a legitimate concern of Mr Grieve's client, if there is a concern, and it would seem that that would put you both in the status quo ante; you bring the fund into the common trustees of the two solicitors and I provide the stay so that no further step is taken by the Federal Court and then the application for prohibition can be referred to a Full Court.

MR GRIFFITH: What I am thinking, your Honour, is that if we could have until Tuesday to work out the mechanics between us and then possibly, your Honour - - -

MR GRIEVE: Well, that is fine, but no money, no stay would be our - - -

HIS HONOUR: Yes. Well, I think you have made that very clear and I can see the reason for - - -

MR GRIFFITH: Your Honour, without instruction, that does not seem unreasonable.

HIS HONOUR: No. Is Tuesday a necessary day? There is a Justices meeting on Tuesday. I mean, I am happy to - if this is an urgent matter, and I am happy to sit at 9.30. The meeting is not until 11.15. So, it may be that we would dispose of it before then.

MR GRIFFITH: I just wonder, your Honour, if we could not agree conditionally on this order and then if we were able, jointly, to communicate with your Honour that arrangements have been made - - -

HIS HONOUR: If you can reach agreement which provides for the provision of a fund of which the solicitors for each of your clients are the trustees into which is paid the moneys the subject of the litigation, and if that is signified and if you can then signify to the Registrar that you seek the order and that Mr Grieve does not wish to be heard in opposition to the order referring the application for prohibition to a Full Court, then there would be no need for you to attend on Tuesday.

MR GRIFFITH: Thank you, your Honour.

HIS HONOUR: I would be prepared to make that order in chambers and I would then provide for an order that the moneys be paid into the fund and in the event that they are paid into the fund, I would provide the stay and I would make the order referring the matter into a Full Court and reserve the costs of the proceedings today.

MR GRIFFITH: We are just thinking of the mechanics, your Honour. We have to agree as to the fund and then make the payment. It might not be possible to do all that by the end of Tuesday.

HIS HONOUR: It could well be. If that is done - when is it feared that the Full Court would be making an order?

MR GRIFFITH: After Tuesday, your Honour.

HIS HONOUR: In other words, sometime Wednesday or later?

MR GRIFFITH: It is possible, your Honour, yes.

HIS HONOUR: It is therefore desirable that it be done on or before Tuesday and I will be in chambers all day Monday, so if it is ready to be dealt with, it could perhaps be dealt with in some telephonic means on Monday.

MR GRIFFITH: That would be useful, your Honour.

HIS HONOUR: That would save your having to come up - - -

MR GRIFFITH: If for no other - it is my birthday, your Honour, that is all.

HIS HONOUR: Well, that is a special reason. I am sure that would weigh very heavily with the High Court of Australia, Dr Griffith.

MR GRIEVE: I will think of something later to say about that. Probably "Happy Birthday". Could I indicate what was running through my mind when I raised with our friend the possibility of us making some form of claim in the nature of certiorari and I must immediately acknowledge that what I have to say is extraordinarily tentative, because we have not thought this through. But what I have in mind in that regard is perhaps making such a claim with respect to the orders made by Mr Justice Tamberlin with the - - -

HIS HONOUR: Well, Dr Griffith, as I understand it, cannot object to your taking whatever remedial steps are available to you on the basis of orders which have been pronounced and presumably taken out. They are there on the record.

MR GRIEVE: I understand that, but the reason why I flag the point now is to be lost in the mist, is that we may wish to apply to your Honour or another single Justice for some interlocutory leave to make that application and it may be necessary for us to do that before the matter goes to the Full Court. One matter that is of concern, of course, is that Order 55 rule 17, on the face of it, limits us in time - forgive me, I have quoted, I think, the wrong rule but at all events - - -

HIS HONOUR: Well, it is not later than six months after the judgment.

MR GRIEVE: Yes.

HIS HONOUR: Now, this is the judgment of Justice Tamberlin.

MR GRIEVE: Yes. Now, we are well after Mr Justice Tamberlin's judgment.

HIS HONOUR: Presumably there is a power to abridge time.

MR GRIEVE: The dispensation power is Order 64 rule 2.

HIS HONOUR: And if one were referring a prohibition into the Full Court, one would refer an application to abridge time.

MR GRIEVE: For certiorari.

HIS HONOUR: I would not abridge the time, I would simply refer the application to abridge time and the application, if time be abridged, for an order nisi for certiorari, into the same Full Court.

MR GRIEVE: That is what we have in mind.

MR GRIFFITH: Your Honour, I would expect, if I were still retained the matter, I would make no objection.

HIS HONOUR: Yes, I would have thought so too.

Very well. Well, I commend to the parties a serious discussion during the weekend and on Monday and I will list this matter at 9.30 am on Tuesday morning before me.

MR GRIFFITH: We are indebted, your Honour.

MR GRIEVE: If your Honour pleases.

HIS HONOUR: And if the matter is agreed in the form of a consent document which both parties by their counsel can sign, then there is no need for both of you or even any of you to come. I will make the order in chambers or I will come into public chambers to make the order on Tuesday and such of you as can attend can attend then.

MR GRIFFITH: Your Honour, I am very indebted to your Honour doing that but would it be possible, your Honour, possibly to have that mention on Monday?

HIS HONOUR: It would be convenient to me. I am here all day Monday. Why do you not see if you can agree. Perhaps I will list the matter so that it goes into the Court list on Monday, at 2 o'clock; 2.15, would that be a convenient time?

MR GRIFFITH: Thank you, your Honour.

HIS HONOUR: Is that convenient to you, Mr Grieve?

MR GRIEVE: I am sure it is. I just have in mind that given the Melbourne/Sydney access, it may or may not be possible to work everything out by then.

MR GRIFFITH: Your Honour, if we take that time and let your Honour know - - -

HIS HONOUR: And if you want it later in the afternoon, I will sit later in the afternoon. I will be here, as usual, until 8 o'clock or 9 o'clock at night so that it can be listed any time that is convenient to counsel.

MR GRIFFITH: Thank you, your Honour.

HIS HONOUR: The High Court is a friendly and co-operative Court, always standing ready to offer justice to everybody.

MR GRIFFITH: On Fridays, your Honour.

HIS HONOUR: Even on Fridays. Very well, any consent order would provide for the costs of today as being costs in the application so referred to the Full Court and I would be intending to certify for the attendance of counsel today.

I will make no orders now except that the matter be re-listed on Monday at 2.15 pm, a nominal time, and it can be listed later in the afternoon if that is more convenient to the parties.

MR GRIFFITH: Thank you, your Honour.

MR GRIEVE: If your Honour pleases.

HIS HONOUR: That is the only order that I make today, and the Court will now adjourn until Monday.

AT 3.52 PM THE MATTER WAS ADJOURNED

UNTIL MONDAY, 11 OCTOBER, 1999