The Herald & WeeklyTimes Ltd & Ors v The Magistrates Court of Victoria & Ors M7/2001 [2001] HCATrans 157 (10 April 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M7 of 2001

B e t w e e n -

THE HERALD & WEEKLY TIMES LTD

First Applicant

NINE NETWORK AUSTRALIA PTY LTD

Second Applicant

SEVEN NETWORK LTD

Third Applicant

3AW SOUTHERN CROSS BROADCASTING PTY LTD

Fourth Applicant

and

THE MAGISTRATES COURT OF VICTORIA

First Respondent

DIRECTOR OF PUBLIC PROSECUTIONS (VICTORIA)

Second Respondent

MARTIN WRIGHT-GOODWIN

Third Respondent

THE ATTORNEY-GENERAL OF THE STATE OF VICTORIA

Fourth Respondent

Application for special leave to appeal

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 10 APRIL 2001, AT 2.00 PM

Copyright in the High Court of Australia

__________________

MR G. GRIFFITH, QC: If the Court pleases, I appear with my learned friend, MR D.J. BATT, for the applicant. (instructed by Corrs Chambers Westgarth)

MR D. GRAHAM, QC, Solicitor-General for the State of Victoria: May it please the Court, I appear with my learned friend, MR N.D. HOPKINS, for the fourth-named respondent. (instructed by the Victorian Government Solicitor)

GAUDRON J: Yes, thank you.

MR GRAHAM: There are three other respondents, your Honour.

GAUDRON J: Yes, Mr Solicitor. I have here three certificates from the Deputy Registrar certifying that the first, second and third respondents do not wish to make any submissions to the Court and submit to orders, save as to costs.

MR GRAHAM: If the Court pleases. Before my learned friend is called on, I wonder if I could hand to the Court a document. Since the publication of its reasons for judgment, the Court of Appeal of Victoria altered footnote No 18, which is to be found at page 51 of the application book, and so that the Court has the final version of the footnote, may I hand to the Court what takes the form of end notes which have been taken from the AustLII system. Your Honours will see that case cited in footnote 18 is reversed by the Supreme Court of the United States and their Honours in the Court of Appeal have appended a comment about what was said by the majority of the Supreme Court in Nixon v Warner, as that case had by then become entitled.

GAUDRON J: Thank you, Mr Solicitor. Yes, Dr Griffith.

MR GRIFFITH: We accept that footnote, of course, your Honours. We say that is a matter to be considered on the merits at the stage if this matter is granted special leave. Your Honours, the propositions we advance on the issue of the reason why this is a matter appropriate for special leave we submit it can be summarised very briefly on the basis that this issue of open court is a matter which this Court has not previously considered and we submit, your Honour, for the reasons that we have summarised in our written submissions, that it is a matter of maintaining the essential content of the principle as a matter of substance appropriate for the Court to articulate the requisite standard by reference to contemporary court practices.

GUMMOW J: I am just looking at page 39, the first paragraph in Justice Charles' decision. That is particular relief that is not the relief that is said to be the issue that should engage us, is it?

MR GRIFFITH: Your Honour, this is really the issue, so that I was going to pause and comment on and say that the underlying issue we submit is one that is self-evidently appropriate as a matter of public importance for this Court to stipulate what is the content of the open court requirement and, as we would see it, your Honour, the issue to address is to whether that fairly may be said to arise in the circumstances of how this matter arose and was dealt with by Justice Mandie and also disposed of at the level of the Court of Appeal.

GAUDRON J: Is there not another problem? I suppose it is not of your making, but I do not see that at any time an account of what happened to the documents to which you seek access was given to the Supreme Court.

MR GRIFFITH: Your Honour, I think it is common ground that the requirements of the Fifth Schedule are that when an order for committal is made the documents that are required by the terms of the fifth - - -

GAUDRON J: No, no. What happened in the committal proceedings? When any of them tendered, for example? Were they not tendered?

MR GRIFFITH: I am sorry, your Honour. I think it is intended that the Fifth Schedule makes clear that they all go up in a bundle, as it were, your Honour. It is just that it is a hand-up bundle containing the charge sheet and all the various aspects. Your Honour, we did file with the Court a copy of Reprint No 6 dealing with the print of the Act. I should as a matter of correct reference, your Honour, hand to the Court a copy of Reprint No 5 of the Fifth Schedule, which is in the form as it was as in January 1999, which was at the time of the committal. The difference between that and the - - -

GUMMOW J: So you look at Reprint No 5 rather than Reprint No 6?

MR GRIFFITH: For the Fifth Schedule, your Honour. In substance, the provisions are the same, but one sees on the schedule 5, paragraph 1 on the document I have just handed to your Honours, paragraph 1 says, "Use of hand-up brief procedure", and it indicates what is required to be contained in the hand-up brief procedure. This is not a discretionary procedure but one invariably used, as I am instructed, in committal proceedings. The effect is that the charge sheet and all supporting documents by way of the statements, exhibits or other aspects in support of the committal are included in a hand-up brief. So that if one is in the court, your Honour, all one would see would be the bundle of documents handed up and - - -

GAUDRON J: There are some things:

a list of any things proposed to be tendered as exhibits - - -

MR GRIFFITH: Yes, your Honour, all those things.

GAUDRON J: Photographs, "proposed exhibit", but - - -

MR GRIFFITH: They are all handed up, your Honour, as I understand it, in a bundle for the court and then unless there is an election to call evidence on the part of the accused person, all that happens is that there is the appropriate opportunity for the Magistrate to ask the person to stand and be given an opportunity to respond and, if not, then there is a committal for trial. So one just sees a mechanical handing over of a bundle without even the charge being made known and one picks up from the judgment of the Court of Appeal that it was accepted by the Court of Appeal that that would effectively make it impossible to produce an accurate and balanced report - this is stated, one picks up, on page 48 and page 60 of the application book.

It was accepted by Justice Charles that it would be "a strong deterrent" to reporting of committal proceedings. So that, in effect, your Honour, we would say it is much like if one has a computer and you just see screen saver, you just have a mechanical position that there is a bundle of documents handed up. There is not even a disclosure of the nature of the charge, let alone the content of any of the matters to support it and unless there is cross-examination of witnesses, your Honour, which prior notice is required under the Fifth Schedule.

GAUDRON J: Now, do I not correctly read the Full Court in Victoria as substantially agreeing with your contention that the procedures were not appropriate?

MR GRIFFITH: Your Honour, yes, but, in effect, Justice Mandie said the same thing but it is a left to an exaltation for the - - -

GAUDRON J: But is that not because of the precise form of relief you sought?

MR GRIFFITH: No, your Honour, with respect, that is not so. What we say happened is that our application, which one sees set out on page 2 of the application book, and the grounds for that application address specifically the issues of whether or not there was an entitlement under section 125 of the Magistrates Court Act.

GAUDRON J: Yes, but you had abandoned that by the time you got to the Full Court.

MR GRIFFITH: Your Honour, we say effectively we had not abandoned it because before Justice Mandie, one sees on page 18, that we accepted that an order quashing the decision may have its difficulties because the Magistrate was functus and we claimed a declaration as an appropriate form of relief. Now, what Justice Mandie did is he held - this is a point on which both parties joined issue - that the open court requirement did not require access on request to a hand-up brief, or reasonable access, and in obiter he said that the court may have no power to grant access and even if there is a power, he doubted whether the practice direction was within power.

Now, with respect to the notice of appeal, as is made plain both by the grounds 1 to 9 and 12 to 13 - and one picks that up also in the Attorney-General's written submissions at page 97 of the application book - it was quite plain that the grounds concerned the open court rule, that is, grounds 1 to 9 and 12 to 13, and 10 to 11 dealt with the power of the Magistrate to order access.

Now, when one goes to consider what the Magistrate did, you pick that up on pages 5 and 6 of the application book. There is no transcript before the Magistrate, so there is an agreed version of events that was before the trial judge. It is quite plain, your Honour, when one goes to page 6 of the application book, that the Magistrate took the view that the practice direction did bind her and that because she did not regard it as contrary to law, she followed it. She then fell into obvious error by saying that it is a clear distinction in these proceedings, adopting Magistrate McLennan's approach, between a trial and a committal.

We say section 125 of the Magistrates Court Act makes that untenable because there is an open court requirement for committals falling within the definition of procedure under the Magistrates Court Act. So, your Honour, for Justice Mandie the matter went off on that basis. For the Court of Appeal the reference which one picks up to the question of the approach of counsel to the grounds arose, as we indicate in our submissions in reply, as a result of exchange with the court as to whether or not there was any content in the order to, in effect, order the Magistrate to act according to law, but in the context that the grounds which were identified as the grounds for appeal, which were argued, as one picks up from page 47, as reciting the position of the appellant that the only issue in appeal was the construction of section 125 and in the context - - -

GAUDRON J: But on that did you not substantially win?

MR GRIFFITH: That is what we say, your Honour, but what we say, we did not get an order.

GAUDRON J: Because you did not seek one. It really is a bit much, is it not, not having sought an order, to come here - and having won to come here and seek one and not address the question whether any utility can be served by such an order, having regard to whether or not the Magistrate is functus? That does not seem to be addressed in your written submissions.

MR GRIFFITH: Your Honours, what we say, this is public interest litigation to work out - - -

GAUDRON J: Well, it is litigation. It invites the exercise of the judicial power of the Commonwealth. It does not help say to it is public interest.

MR GRIFFITH: Your Honour, it is not an abstract issue, but what we say is when one goes to the Court of Appeal judgment, with respect, your Honour, the operative parts of the judgment are on page 61 and 62. In paragraph 40 his Honour Justice Charles, speaking for the court, expresses a view that the open court requirement exists in its traditional view, but he indicates that he does not believe it is necessary to decide this. He then refers in paragraph 41, your Honour, because he says the judge, having:

refused to grant the because, having rejected the construction of s 125 -

said it failed because the - we are certainly not relying upon something separate from section 125 to give us the entitlement, but his Honour then said that he accepted that the Chief Magistrate, we would say, your Honour, is in error in having regard to the circumstance that the practice direction applied to the Magistrate and bound the Magistrate, as the Magistrate held, and he says:

If and in so far as McLennan, M or Fleming, M took a contrary view, I think they were, with respect, in error.

So he says, in effect, we win on that and then, notwithstanding the fact that it is clear from the summary of the Magistrate's decision to which I have taken your Honours that the Magistrate was in error, rather than making an order which - - -

GAUDRON J: Making the declaration which you sought, which is a discretionary remedy and which would only be granted, I should have thought, in the proper exercise of discretion if it would serve some purpose.

MR GRIFFITH: Your Honour, we say it would serve some purpose. When one looks at the reasons as why it is not granted, you go to page 62 and his Honour Justice Charles says "Furthermore". With respect, your Honour, we say there is nothing that precedes that as to any reason why we should not be granted an order, when one looks at his statement beforehand, because up to that point he is saying, in effect, that we are right, that the Magistrate was in error to regard the direction as binding the Magistrate, as plainly the Magistrate seemed to do, and a valid one at that.

Our submission was that the direction was not a valid one because it was contrary to the requirements of section 125, it was inconsistent with the other terms of the Act, within the terms of section 16, although that was not necessary - - -

GUMMOW J: Now, this problem which you say exists is one that will recur - - -

MR GRIFFITH: Every committal, your Honour.

GUMMOW J: Yes. Well, if it is going to come here, it best come here in best form. It is not in good form at the moment, I am afraid.

MR GRIFFITH: Your Honour, the difficulty is that this will always be the case because in this case there - - -

GAUDRON J: No, it will not - - -

MR GRIFFITH: - - - was a prompt application made within a day of this order. It then came on for hearing a couple of months later and took six months to get the decision at first instance and it has taken now, your Honours, the effluxion of two years to get to this Court and the enduring position is that, as was accepted by the Court of Appeal, in a practical sense it is not possible to have reporting of committal proceedings in Victoria.

GAUDRON J: I would have thought it was not even necessary for the issue to be raised in a proceeding. Presumably the practice direction has gone now and I would have read it as simply a practice direction from the Principal Registrar to other Registrars, but I would have thought it was quite open to you to properly constitute proceedings between whoever wishes and the Attorney-General seeking declarations as to the content of the requirement, not in abstract, but setting forth what declarations you think should be made.

MR GRIFFITH: Your Honour, that was what was attempted to be done with respect - - -

GAUDRON J: No, it is not. There is not a thing here, other than - what do you say, you want - there was not a thing before the Full Court. Before - - -

MR GRIFFITH: Before Justice Mandie there was, with respect, your Honour.

GAUDRON J: - - - Justice Mandie requiring the first defendant to act according to law and provide access to the statements and charge sheet.

MR GRIFFITH: Yes. Well, your Honour, that was included within the grounds in the Court of Appeal. The difficulty is, as is indicated by paragraph 27 of the Court of Appeal judgment, it would seem in exchanges, your Honour, on the issue of is not the Magistrate functus, the view is taken, "Well, this is the relief sought." But we would submit it remains just as appropriate for the underlying issue which was sought to be addressed before Justice Mandie, which was joined, your Honour, and when one looks at the written submissions at both levels, and your Honours have the filings on behalf of the Attorney-General in answer to our written filing saying this is the point at issue, the content of section 125, with respect, it is possible to embrace within the disposition of even the narrower form of order which would seem in an exchange of counsel was addressed by the Court of Appeal the issue of whether or not section 125 does have this wider content.

Your Honour, that is what the judgment, in effect, addresses right up to its penultimate few paragraphs, as to what is the content of section 125. Then what the Court of Appeal do, in effect, is say that we are correct on our approach with respect to the fact that we have demonstrated the Magistrate was in error. We say, having demonstrated that, it is not answer for Justice Charles to say we are not entitled because the appellants were not parties to the committal proceedings.

GAUDRON J: Well, I have great difficulties with all of this, Dr Griffith. Presumably we are to take it that you seek an order in the nature of mandamus now. Where are the papers? I mean, one could not reconstitute this proceeding totally. Where are the papers now?

MR GRIFFITH: The papers before the Magistrate?

GAUDRON J: That were before the Magistrate.

MR GRIFFITH: Well, your Honour, they went to the DPP probably the next day.

GAUDRON J: Exactly. That is why I say there is difficulty about the order you sought in paragraph 3 before Justice Mandie.

MR GRIFFITH: Yes. Well, in effect, we were seeking two things, your Honour, a particular order, but particularly the reasoning for the order. The reasoning is, your Honour, as dealt with by Justice Mandie directly in dealing with our application and as dealt with by the Court of Appeal, over what is the proper construction of section 125. That is substantially the issue which occupied Justice Mandie, it is the issue which occupied substantially the judgment of the Court of Appeal and, with respect, our submission is, your Honour, in this Court it would be sufficient to deal with that issue as a matter of what is the proper content of section 125 and either make an order on the basis of declaring that there is such an entitlement, which is not an abstract issue, but making a declaration with respect to matters where the parties joined issue, where there was a proceeding which inevitably would come to an end within a day or so of the application being made.

GAUDRON J: But you see even the order you now seek is defective.

GUMMOW J: Yes, it is at page 72. I have just been looking at that.

GAUDRON J: That was what I was trying to point to you. What you are really asking is for the total reconstitution of these proceedings.

MR GRIFFITH: Well, your Honour, we are not, in effect. What we are asking for is a declaration or a statement of reasoning by this Court which expresses what is the content of the open court requirement in the context that that is embraced specifically by section 125(1) of the Magistrates Court Act to committal proceedings. So that means that the distinction sought to be made by Magistrate Fleming that they differ from a trial is insupportable and we are content to have the Court in its reasonings to explain that is the content and then to make an order, either by way of declaration or to vindicate the particular and narrow order which has been expressed.

GAUDRON J: No, no. All that this Court could do is set aside the order of the Court of Appeal and make some order in lieu.

MR GRIFFITH: That is all we want, your Honour.

GAUDRON J: But the order that they made was, what, application dismissed.

MR GRIFFITH: Yes. Well, that is set aside, your Honour, and what we want is an order which in its reasoning expresses the content of section 125(1) and could merely make a declaration that the order of Magistrate Fleming is in error. One cannot do anything more to execute it because the papers went within a day of our - - -

GAUDRON J: Exactly.

MR GRIFFITH: Yes. So it is enough to have a declaration that the Magistrate was in error, but that was the issue, with respect, your Honour, we sought to raise and which has occupied the attention at two levels of the Victorian courts. In each level the view has been expressed in plain terms that the traditional rule is the one which applies. That is identified as the issue which was raised, identified between the parties as the issue to be argued before the court and determined by the judgment of the court.

Our submission is, your Honour, if this Court does not embrace a review of that, then, whatever the form of the order of the Court of Appeal saying application dismissed, the judgment in its reasonings will stand as authority in Victoria, if not within Australia, as to what is the contemporary content of the open court rule. Our submission is that is a matter, firstly, appropriately for this Court as the only court of authority sufficiently to revisit that and express the content by reference to contemporary terms and one where there is a clear exercise of judicial power, we would submit, in the narrowest sense of that term, applicable to the circumstances of this case, which may in the result only result in an order declaring that Magistrate Fleming's order is in error, but if the reasoning expresses that error, with respect, to be on the basis that the Magistrate was obliged by reason of the content of the open court rule, then there is a direct connection and the issue which runs as a thread through the proceedings. If the Court pleases.

GAUDRON J: Thank you. Yes, Mr Solicitor.

MR GRAHAM: May it please the Court. If I can just ask the Court to go very briefly to page 83, where our submissions begin, and just draw your Honours' attention to three short passages. Firstly, the last sentence in paragraph 2 on page 83, paragraph 7, the whole of it, and paragraph 10, and that highlights the issue which I think your Honour the presiding Judge made to my learned friend at the outset of his submissions.

My learned friends seek to rebut the position which they adopted before the Court of Appeal by what appears at page 91 in their submissions in reply where it was suggested that a particular paragraph of the Court of Appeal's judgment, paragraph 24, to which I will come, has to be read in a context that counsel was dealing with proposed orders but in the context that the Magistrate might be held to be no longer seized with the matter. Now, it is our submission, and it is the recollection of my learned junior and of Mr Costigan, that that argument was not put on that basis at all before the Court of Appeal - - -

GUMMOW J: Which paragraph are you referring to on page 91, Mr Solicitor?

MR GRAHAM: Paragraph 3, which begins on page 90, your Honour. I am sorry, I should have said that.

GUMMOW J: Thank you.

MR GRAHAM: The heart of my learned friends' difficulties really are to be found when one goes to page 52 and looks at paragraph 24 of Justice Charles' judgment, where Mr Houghton, my learned friend Dr Griffith's predecessor, is recorded as:

on several occasions made it clear in answer to questioning by the presiding judge that the only relief the appellants sought was a declaration that Practice Direction 41/98 was beyond the power of the Chief Magistrate of the Court.

That reflects the opening sentence in Justice Charles' judgment on page 39 in paragraph 2, where his Honour said, "The appellants seek a declaration" -et cetera. I will not take the Court through the whole of that. That is echoed by something - - -

GUMMOW J: What is put against you in a way is, granted all of that, the Court of Appeal nevertheless went on to express conclusions on other matters, as it were.

MR GRAHAM: Your Honour, they did not express conclusions; they expressed views. But the way in which the case was left to them to decide was to decide whether the practice direction was valid or not and the Court of Appeal held that if it was to be viewed as a practice direction made under section 16A of the Magistrates' Court Act it was invalid and anyway it should not be construed as a practice direction by the Chief Magistrate to magistrates but only by the Chief Registrar to registrars. So that when at page 61 - - -

GAUDRON J: Well, I think we need not trouble you further, Mr Solicitor. Yes, Dr Griffith.

MR GRIFFITH: Well, your Honour, inasmuch as, of course, that concession is made as stated in paragraph 24, in the context that the declaration was sought on the basis that the practice note raised the section 125 issue. That was what was raised, your Honour, at both levels of argument and passed on by both courts. The situation does remain that if special leave is not granted by this Court, this decision will remain as the authoritative view which will operate in a practical way to ensure the adherence to the traditional view of the contents of the open court requirement, which we submit, for the reasons stated, is a matter which is appropriate to be reviewed at the level of this Court.

GAUDRON J: Is that view contrary to your submissions?

MR GRIFFITH: Yes. Well, section 125 is the main issue, your Honour. What we say, it has to be articulated by reference to contemporary procedures so that one ensures that there is some mechanism which deals with the substance of the open court requirement rather than mere form with no substance. Your Honour, in effect, we say that one is looking not at what appears on the computer, but the screen saver, if all one sees, with access through the open door of the court, a bundle of documents handed up and the Magistrate then saying, "I will order you to be committed for trial."

Not even the charge need be made known, let alone any of the evidence. We accept, of course, that a magistrate may make directions for some parts or even all parts not to be published or made known, but we say the default position is that there should be reasonable access granted on request as part of the open court requirement. It is not in issue as saying it is submitted against us, "Oh, well, that would mean that what is valid becomes invalid once that request is refused." What we say is there should be an underlying situation that there is a capacity on request for reasonable access to be granted and our reference to American cases is merely to indicate that such procedures may be adopted.

GAUDRON J: As I read the concluding paragraph of the judgment in the Full Court, that is exactly what they say.

MR GRIFFITH: Your Honour, but we did not win the case.

GAUDRON J: Well, exactly, because that was not what you asked.

MR GRIFFITH: But they say we won on the - - -

GAUDRON J: But were it the fact that reasonable access was still refused in subsequent cases, I do not see why you could formulate a proper case, seeking proper relief.

MR GRIFFITH: Your Honour, what we say is that we already won - - -

GUMMOW J: It will be back here in better shape.

MR GRIFFITH: We might not be back for two years, your Honour, so there will be four years of committals unreported. So what we say is there is a public interest for this issue which is an enduring issue which has been raised, where both courts at each level have passed on the issue and where, at the end of the day, we were successful, as Justice Charles said - in having the issue of the Magistrate was in error in having regard to the practice direction, held in our favour and the court then not making an order in our favour.

What we say, your Honour, is that the court should have made such an order and fell into error and in the context that if the underlying issue remains a question of content of open court it remains appropriate for this Court to consider the issue of merits and in formulating its order, with respect, your Honour, to express it, firstly, by reference to the narrow issue that the Court of Appeal should have made the declaration sought, because we demonstrate the Magistrate was in error, and in disposing with that, either in the Court's reasoning or by way of making a declaration, in determining the open court issue.

There is no issue of fact, with respect, that the Court requires to have before it to answer the issue which is identified as being the point of general importance, namely, whether there is this right on request to have access to a hand-up brief which constitutes the entire proceedings mandated for all committals in Victoria under the Schedule 5 procedure, both as it existed then and as existed under the current terms of the Act. We submit in the absence of any particular issues of fact, as one might require in a pure mandamus order, this remains an appropriate vehicle as to consider a further appropriate vehicle either in proceedings directly against the Attorney or in some other form which may come to this Court in two years time. With respect to your Honour, there could be no utility in working one up through the primary courts over a two-year period, as has happened - - -

GUMMOW J: Why do you keep saying two years?

MR GRIFFITH: That is how long it takes, your Honour.

GUMMOW J: Well, you say that.

MR GRIFFITH: Well, this is demonstrated by this case, your Honour. We have done our best to get it here as quick as we can. This is an expedited hearing and it is still two years and, even if special leave is granted, it may be upwards of another year to be resolved. So we are talking about a project, your Honour, for halfway through the first decade of the millennium, where we say there is an existing current interest. But in the context, we submit, your Honour, there is no relevant issue of fact which is not exposed by these papers which would prevent the Court from dealing with the underlying issue of whether or not the open court rule should be rearticulated by reference to the procedures established by Schedule 5, this remains an appropriate vehicle for the Court to consider the matter. Those are our submissions, your Honours.

GAUDRON J: Yes, thank you.

As the only relief sought in the Court of Appeal was a declaration that the practice direction was ultra vires, this is not a suitable vehicle for the elucidation of the issues which parties wish to raise. Accordingly, special leave should be refused.

Now, you have sought to avoid costs. Ordinarily one would grant costs in this case, would one?

MR GRIFFITH: Of course, your Honour, but what we say is it is a general rule; it is useful for intervening Attorneys neither to ask for costs nor to have them awarded against them and this has a further element of public interest which drives it.

GAUDRON J: Yes.

MR GRIFFITH: I should point out, your Honour, also that the Court of Appeal has made no order for costs, although there was at first instance.

GAUDRON J: I take it you want your costs, Mr Solicitor?

MR GRAHAM: We do, your Honour. We asked to be joined by means of intervention in order that there be a proper contradictor and the Court would have the assistance of argument on both sides.

GAUDRON J: Yes. You will have your costs.

MR GRAY: Your Honour, may I add one further observation in relation to costs? I do not know whether this is a matter for the Court or the taxing officer. The costs of the respondent have been increased by virtue of the application which was made for an expedited hearing, which resulted in a hearing in Sydney this week rather than in Melbourne next week, and we would submit that our costs should include any additional costs incurred by reason of that change of venue.

GAUDRON J: That is for the taxing officer, Mr Solicitor.

MR GRAHAM: If the Court pleases.

GAUDRON J: The order is special leave is refused with costs.

AT 2.32 PM THE MATTER WAS CONCLUDED