Majeed, Ex parte - Re MIMA & Anor M77/2001 [2001] HCATrans 404 (30 August 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M77 of 2001

In the matter of -

An application by for Writs of Certiorari, Mandamus and Prohibition, an Injunction and Declaration against THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

DAVID THOMAS, Member, Migration Review Tribunal

Second Respondent

Ex parte -

JAHANGHIR ABDUL MAJEED

Applicant/Prosecutor

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 30 AUGUST 2001, AT 2.16 PM

Copyright in the High Court of Australia

MR C.M. MAXWELL, QC: May it please the Court, I appear with my learned friend, MS R.M. GERMOV, for the applicant/prosecutor. (instructed by Rosendorff Lawyers)

MR A.L. CAVANOUGH, QC: If the Court pleases, I appear on behalf of the respondents. (instructed by Australian Government Solicitor)

HIS HONOUR: Perhaps before I call on you, Mr Maxwell, could you, Mr Cavanough, tell me what the attitude of the respondent is to the application?

MR CAVANOUGH: Well, it is not consented to.

HIS HONOUR: I understand that. A further question arises that counsel generally should give attention to and that is as the grounds are presently framed it may be thought that there may be some difficulty about remitting the matter but it seemed to me at least, at first blush, that the essence of the complaints that are made are capable of framing in a way that fall within the relevant provisions of Part 8 and the matter, if that were done, may be a matter suitable for remitter, but that perhaps is to jump the gun.

Well, Mr Maxwell, as I would understand it, there are two principal streams to the order nisi that you would seek, one concerned with what is alleged to be a failure to take account of relevant considerations and the other what is alleged to be a breach of natural justice. Could I deal with those in reverse order. First, is it clear that this is a set of complaints which, if made to the Federal Court, would fall within Division 2 of Part 8? Leave aside the content, but is this the sort of matter that is caught by Division 2 of Part 8?

MR MAXWELL: Yes, your Honour. It is a decision relating to a visa within the meaning of 475(1)(c).

HIS HONOUR: Yes. I note the reference in 475(1)(a) to - in my print reads as a decision of "the Immigration Review Tribunal" rather than "the Migration Review Tribunal". Simply as a matter of idle interest, can you explain to me the mystery that lies behind that reference?

MR MAXWELL: No, your Honour, I cannot. My learned junior could and I would gladly give way to her. I do not know the distinction.

HIS HONOUR: As I say, it is perhaps a matter of idle speculation on my part. I think it may owe something to the history of the legislation and a failure to pick up by the time of this print a change in name, but is that right, Mr Cavanough?

MR CAVANOUGH: Yes, your Honour.

HIS HONOUR: And is it now "decisions of the Migration Review Tribunal" or not?

MR CAVANOUGH: Yes, your Honour, it is. The Act was amended by Act No 28 of 2000 Schedule 9 and subparagraph (a) now reads "decisions of the Migration Review Tribunal".

HIS HONOUR: So, on any view, then it is a 475(1)(a) and probably 475(1)(c) matter?

MR CAVANOUGH: Yes, your Honour.

HIS HONOUR: Yes, thank you. Now, Mr Maxwell, can I deal with the breach of natural justice allegation. Do I understand the essence of the case which it is sought to mount on this ground, that in the course of the hearing before the MRT statements were made which you would contend amounted to statements accepting the evidence given by the visa holder and statements made by the employer of the visa holder and that, despite what you would wish to say are statements accepting that evidence, the Tribunal later gave a decision that rejected their evidence? Is that the nub of the factual base?

MR MAXWELL: With respect, your Honour, that is the nub.

HIS HONOUR: Then as to that, can it be said that there was a failure to observe a procedure required by the Act, namely the requirement under section 360(1) of the Act to:

invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review -

there being an issue arising in relation to that decision, whether the prosecutor had between some dates engaged in work in Australia other than in relation to his course of study for more than 20 hours a week, other than vacation time, in effect, and that the Tribunal having invited the prosecutor to give evidence and present arguments relating to that issue, on your case, informed the prosecutor that it accepted the evidence given by the prosecutor's employer that he had not, during the relevant time, done that, but then without inviting or permitting the prosecutor to adduce further evidence concluded that, contrary to the sworn evidence of both the prosecutor and the employer, the prosecutor had done it. Would you say it would be sufficient for your purposes to cast this complaint in that way?

MR MAXWELL: With respect, no, your Honour.

HIS HONOUR: Why?

MR MAXWELL: That is meant in no disrespectful sense. It may well, your Honour, be capable of being so characterised. In my respectful submission, however, its true character is an allegation of a breach of the rules of natural justice. In support of that submission we rely on what is, in our respectful submission, a compelling similarity between the way the proposition is sought to be put on behalf of the prosecutor here and the way the members of the Court in Aala described the jurisdictional error, being the breach of natural justice, which occurred in that case.

HIS HONOUR: Well, understanding that to be so, given Aala plus Yusuf and Israelian, why can the grounds not be framed in a way that would permit remitter, "jurisdictional error because of want of natural justice, failure to abide by procedures in the manner described"?

MR MAXWELL: Your Honour, I think I probably cannot more helpfully respond than I have at the moment for this reason. Because of what is so clearly said in section 476(2)(a) of the Migration Act and because we have, from the beginning, as the draft order nisi discloses, approached this as a common law breach of natural justice rather than a matter in respect of which we needed to tackle the statutory formulations in Part 8, we have not, I can candidly say, essayed the task of trying to fit the case into the Part 8 criteria, nor, for my part, reviewed decisions of this Court which analyses, they have had to do repeatedly, how those statutory formulations are to be interpreted.

HIS HONOUR: The matter is important for this reason, that a possible point of view is that a discretionary consideration that might arise in connection with a grant of order nisi is the availability of alternative relief - - -

MR MAXWELL: Yes, your Honour, I accept that.

HIS HONOUR: - - - notably alternative relief in the Federal Court.

MR MAXWELL: I understand that, with respect.

HIS HONOUR: It is not simply judicial indolence that suggests that if there is remedies available in the Federal Court, that is where you are going.

MR MAXWELL: And I am sure your Honour would know that the rush of applicants to this Court is only a product of the view taken of the strictures in the Federal Court and in the ordinary course this kind of proceeding should be there. But I accept the force of what your Honour says and - - -

HIS HONOUR: The rush here has been occasioned in part by insufficient attention being given to what is actually said in 476.

MR MAXWELL: Yes, your Honour. I accept the implied - - -

HIS HONOUR: Not directed at you, Mr Maxwell. Not directed at you at all.

MR MAXWELL: But, your Honour, in view of what your Honour has said - and I accept the force of it, that is a recognised ground on which an otherwise available remedy might be refused - the proper course for me to deal with what your Honour has raised with me is to have the application adjourned for some short period to enable us to give proper consideration to exactly what your Honour has raised and for our client then to proceed as he is advised.

HIS HONOUR: What I would be minded to do though, Mr Maxwell, is this, that after a suitable time for your side to reflect upon it and suitable time for the Minister to have an opportunity to respond, if it were possible to frame grounds in a way that were grounds of a kind engaging Division 2 of Part 8, then subject to what Mr Cavanough may say, it would seem appropriate to grant an order nisi but then remit. True it is there would be a different initiating process but, that apart, essentially, there would be something in the nature of, or having all the hallmarks of, an application for review to the Federal Court simply on remitter from this Court.

MR MAXWELL: Yes, your Honour.

HIS HONOUR: So that it is not a case of, at least at the moment, my seeing it as one where you have to draw stumps, go away and start again in the Federal Court. It is a case of if the grounds can be framed in a particular way and if there is sufficient reason to make an order nisi, then do it, make the order and remit it.

MR MAXWELL: Yes, your Honour.

HIS HONOUR: Everybody is then in a position where their rights are sufficiently or adequately protected. As to the natural justice question then, it would seem to me that attention might usefully be directed to the grounds in 476(1)(b), possibly (1)(c), that is:

the person who purported to make the decision did not have jurisdiction to make the decision;

(c) that the decision was not authorised by this Act -

Also it may be that it would be appropriate to give consideration to (a), procedures required not observed.

So far as the failure to take certain matters into consideration, again if there is an arguable case about that - and it is a matter on which, of course, I have to hear Mr Cavanough - it may be again that 476(1)(b) and 476(1)(c) are engaged.

MR MAXWELL: Yes, your Honour, and we have, indeed, cited and looked at the passage in Yusuf which makes that very point.

HIS HONOUR: Yes. I had in mind especially, I think, paragraph [82] and following of the joint judgment.

MR MAXWELL: Yes, your Honour, and that is the paragraph you will see we have cited in paragraph 3, not for that purpose, but really to say, "Here is a recent statement that that kind of failure is a reviewable error".

HIS HONOUR: Yes.

MR MAXWELL: We were conscious that it was making that point in the Part 8 context.

HIS HONOUR: Yes. Now, all that being said, does it then on the "relevant consideration" issue come down to the matters identified by you in your written outline paragraph 7, page 3? Is that the essence of the complaints that you seek to make under this head?

MR MAXWELL: It is, your Honour, yes, and in relation to (c), the hardship as elaborated by 8 and 9, but the matters are those listed in 7.

HIS HONOUR: Yes, and further particularised, of course, as you rightly say, elsewhere.

MR MAXWELL: Yes, your Honour.

HIS HONOUR: Yes. Then is there anything further that you would want to say at the moment before I tax Mr Cavanough with some of the issues I have just been taxing you?

MR MAXWELL: Your Honour, yes, with respect. In our respectful submission, a consideration of the complaint in this case against the language of all the judgments in Aala - and we have cited the paragraphs specifically - should, in our respectful submission, lead this Court to the view that this is a very strong case of exactly the kind of breach of natural justice as occurred there. Secondly, because the case is made out on the transcript and the reasons of the Tribunal, there is nothing the respondents can say to controvert the case. Now, if your Honour would wish me to develop that, I would wish to take your Honour to - - -

HIS HONOUR: Assume all that to be accepted for the purposes of debate, what do you say would follow from those facts? You say you have an unanswerable case.

MR MAXWELL: Yes.

HIS HONOUR: What then follows?

MR MAXWELL: We would be asking your Honour under the power conferred by Order 55 rule 1(4) to make an order absolute on the first occasion.

HIS HONOUR: It is a bit hard, is it not, where there has at least been no opportunity for the other side to put on material. You say there is no material they possibly could come to put on. But it is a bit difficult, is it not, Mr Maxwell?

MR MAXWELL: I understand that, your Honour.

HIS HONOUR: I understand why your side gets a benefit. What detriment does your side suffer if I were simply to consider making order nisi in the ordinary way?

MR MAXWELL: None, but your Honour will understand that if the case is as strong as I have submitted for the reasons I have submitted, that if you were trying to find a new set of facts which went close to replicating Aala, you could not do much better than these and, secondly, that it is incontrovertible because it is the work of the Tribunal as recorded and, therefore, nothing that could be said could upset the point because it is self-contained in the transcript and the reasons, then you will understand that my client would be anxious to have the relief to which we submit he is entitled as soon as practicable and why, particularly if your Honour properly is challenging him now to consider reformulating his claim to be remitted to another court to get into another list, that we would - your Honour would understand that we would be pressing your Honour to grant relief or refer this to a single Judge for consideration inter partes at the earliest opportunity.

HIS HONOUR: In this Court?

MR MAXWELL: In this Court on the basis that this - - -

HIS HONOUR: The earliest opportunity you are going to have for a real trial of issues in this Court is a considerable way away, Mr Maxwell.

MR MAXWELL: I accept that, your Honour.

HIS HONOUR: We are at the moment stretched very, very tight, even tighter than normal.

MR MAXWELL: Your Honour, I cannot put it any higher than that.

HIS HONOUR: I understand.

MR MAXWELL: We make such a submission advisedly on the basis that, as I have just said, that this on the facts has to be, in our respectful submission, a straight application of an unanimous decision of this Court on principles which are articulated with unmistakable clarity, if I might say so with respect. We would - - -

HIS HONOUR: It is the first time counsel have made that submission for a long time.

MR MAXWELL: No. Well, my learned junior had identified the paragraphs and I read them all and they said, with respect, precisely what as a matter of principle one would have expected them to say and reached the conclusion which we expect the Court to reach in this case.

HIS HONOUR: But the consequence of order absolute, either now or later, is, what, your client is put to the Tribunal again?

MR MAXWELL: It means he has his student visa unquashed.

HIS HONOUR: But he is back into the Tribunal, is he not?

MR MAXWELL: Yes. The matter is remitted to the Tribunal.

HIS HONOUR: And like all these natural justice type applications, the consequence of the grant is there is another trial and - - -

MR MAXWELL: Your Honour, that is understood and - - -

HIS HONOUR: - - - it always intrigues me why those opposing such applications sometimes oppose them with such ferocity.

MR MAXWELL: Vigour. Indeed, a fortiori in a case such as this where we would respectfully urge our learned friend's clients to regard this as one where an obvious mistake has been made and that it is unproductive for this to become a drawn-out proceeding. Your Honour may recall on the last occasion I appeared before your Honour in a matter of this kind where a clear breach of natural justice was alleged, the Minister consented on the first occasion to the setting aside of the decision and it was to be made again. In our respectful submission, that is exactly what should occur here, unless there is something we are missing which suggests the case is not an open and shut as we have suggested it is. Otherwise, your Honour, there is nothing further I have to say.

HIS HONOUR: Thank you, Mr Maxwell. Mr Cavanough, firstly, as to the procedural side of things, do you wish to make any submission to me about the adoption of a course generally of the kind that I have foreshadowed in debate with Mr Maxwell, that is to consider the reformulation of the grounds in a way that may more closely track section 476, subject to what you may say on the merits of the matter, grant order nisi and then remit?

MR CAVANOUGH: Do I understand that what is proposed is that, in effect, there would be no orders of any kind made today save an adjournment? On that thesis - - -

HIS HONOUR: It is not instantly apparent to me that these grounds cannot be reformulated in the course of the afternoon, but perhaps I am wrong. Put it this way, I was doing the drafting this morning but - - -

MR CAVANOUGH: Your Honour, needless to say that the question whether or not what is really a natural justice point can, in fact, now be determined by the Federal Court is a matter of some significance nationally.

HIS HONOUR: After Yusuf and Israelian?

MR CAVANOUGH: Absolutely, your Honour. Yusuf and Israelian were not natural justice cases.

HIS HONOUR: No. After Aala?

MR CAVANOUGH: Yes, indeed, your Honour. There is nothing in Aala to the effect that - - -

HIS HONOUR: Jurisdiction error, is it not?

MR CAVANOUGH: Yes, so it was said, your Honour, but it was a particular kind of jurisdictional error and, at the end of the day, the statute, of course, prevails and the statute clearly says in 476(2)(a) that a ground which is in substance based on "a breach of the rules of natural justice" does not fall within the jurisdiction of the Federal Court.

HIS HONOUR: What would you say about the proposition that there was here a failure to observe procedures that were to be required, on the assumption, on the factual assumption, that what happened in the Tribunal was, "Do not trouble about that issue any more. I accept the evidence given." I understand that will be or may be a matter of great factual controversy. But assume that to be the facts, contrary perhaps to the case you would seek to make. Is it then open to the Tribunal to turn around, having said that, and then reject the evidence they have said they accept without a contravention of section 360(1)?

MR CAVANOUGH: Well, if I can go directly to the last aspect of what your Honour says. My belief is that there have been some decisions of the Federal Court on this very - - -

HIS HONOUR: I am not asking you what the Federal Court have been saying about these things, Mr Cavanough. I am, rather, asking you to read the statute.

MR CAVANOUGH: Yes, your Honour.

HIS HONOUR: It is not a course commonly adopted in every case I fear.

MR CAVANOUGH: Yes, your Honour, but the words are:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

Then one reads subsection (2), which gives some colour to subsection (1). It provides that:

Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or -

I will skip over the next provision:

If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

It would be submitted, I apprehend, on behalf of the Minister, although I have no instructions to make any particular submissions at the moment because this was not foreseen by us, but I apprehend it may well be submitted that on the true construction of those provisions one is really speaking about the initial invitation only and not about the conduct of the matter once - - -

HIS HONOUR: Section 360(1) is simply satisfied at the point of the inviting letter.

MR CAVANOUGH: Yes, at the point of - and I think as the cases have said, there needs to be a true invitation, not a sham invitation, an invitation which is communicated that is a real invitation but it does not travel beyond that stage of, if you like, effectively drawing the person physically into the place and then - - -

HIS HONOUR: And if physically the visa holder is drawn into the place and is there, on one version of what occurred, misled as to what is in issue and what is not in issue, 360 has nothing to say?

MR CAVANOUGH: Section 360 has nothing to say, with respect, but, of course, that then falls into the realm of natural justice discussions at common law.

HIS HONOUR: Because the other way in which this matter could be treated, and it is a way I have adopted in other matters, is to consider granting an order nisi on which ground 1 alleges natural justice, grounds 2 to whatever allege Part 8 grounds, and remit the Part 8 grounds to the Federal Court, leaving any residue to come back here.

MR CAVANOUGH: Yes, I understand that has been done in the past.

HIS HONOUR: If that is the course to be adopted, so be it, but this bifurcation of jurisdiction for which the Minister has contended and which the Court has upheld leads to considerable difficulty. It leads to difficulty for applicants, it leads to difficulty for the Minister and it leads to difficulty for the Court.

MR CAVANOUGH: Yes, I understand that, your Honour.

HIS HONOUR: It may be - I express no view on it - that section 360 may bear the meaning that you have suggested it might. It may bear another meaning.

MR CAVANOUGH: It may and the question is what to do in that situation of at least doubt in the best interests of all concerned.

HIS HONOUR: Yes, but in the end the real dispute between the parties, if there be one, might be thought to focus more on the facts of what happened than on where it should be resolved and by what judge.

MR CAVANOUGH: Yes.

HIS HONOUR: For if the facts bore the complexion that the applicant contends they bear, it would at least seem to be an arguable case of want of natural justice.

MR CAVANOUGH: If they did. One consideration that perhaps has not been adverted to yet in what has been said is the one that arises from the fact that the member most transparently was not satisfied about the diary and - - -

HIS HONOUR: I understand that.

MR CAVANOUGH: - - - one might think how could the applicant really have gone away thinking that, if you like, the employer's evidence was accepted in that situation.

HIS HONOUR: I do not think that is the case you have to meet. I think, rather, the case you have to meet is a little more specific. It is a case that on the evidence tendered, particularly from the employer, that that evidence was accepted. Now, as I say, I can well understand if you say to me, "There is a factual controversy about what the transcript really reveals".

MR CAVANOUGH: Yes, and a logical argument or an argument in relation to logical propositions we say, that is to say the two things are diametrically opposed. It must be enough, we say, to put the applicant on notice that there is obvious scepticism about evidence that cannot be reconciled with the employer's evidence.

HIS HONOUR: But, again, if the debate is a debate about natural justice, if it is resolved in favour of the applicant, the consequence is there is a rehearing.

MR CAVANOUGH: Yes, that is well and truly understood now on this side of the Bar table, your Honour. The matter has been brought on at fairly short notice. The matter will be looked more closely, no doubt, as all matters that suddenly find themselves before a court are looked at.

HIS HONOUR: You are not suggesting the Minister has other things on his mind, are you, Mr Cavanough.

MR CAVANOUGH: No. But the other matters though that your Honour raised are matters on which instructions I would really have to seek because it is of considerable importance as to the way in which litigation under this Act will in future be conducted, to know what the High Court considers is the true scope of the jurisdiction of the Federal Court and, in particularly, if there is a suggestion that even natural justice matters now really are within the bailiwick of the Federal Court. That really would come as a bit of a surprise to those instructing me, I think, at the moment, your Honour.

HIS HONOUR: As to that I express no view but the argument you have heard against you that Aala says it is a jurisdictional error and Yusuf and Israelian says the jurisdictional errors are cognisable by the Federal Court. That is the argument against you.

MR CAVANOUGH: Yes, I understand. I do not want to take up the Court's time unnecessarily but Aala was heard in the High Court in its Part 5, section 75(v) jurisdiction and it was so heard for the reason it was assumed on all sides that that was the only place it could be so determined.

HIS HONOUR: Yes.

MR CAVANOUGH: Perhaps my learned friend, to be fair to him, does need some time in order to consider whether he wants to go down the particular path or not and I would appreciate some time on behalf of my client to respond to whatever reformulation he may wish to come up with.

HIS HONOUR: The position that I have is this: if the parties were able to come back before me to tomorrow, well and good; if that is not so, it would have to be either, I think, 20 September or we would be going over probably to 18 October. I think that the prospects of finding another day than those I have mentioned at the moment look slight because I do not want to impose on the parties the cost of coming to Canberra and that would be, obviously, inappropriate, I think, unless the parties were both agreed that that is what should be done.

MR CAVANOUGH: May I speak to my learned friend?

HIS HONOUR: Yes, of course.

MR CAVANOUGH: My learned friend wants to make other submissions but, in my respectful submission, the most beneficial, most appropriate course would be to deal with the matter on 20 September. If the Court pleases.

HIS HONOUR: Yes. Mr Maxwell.

MR MAXWELL: Your Honour, my learned friend has articulated - and I need not repeat - some of the questions which arise in relation to the formulation your Honour has put in argument about breach of natural justice, absence of jurisdiction and Part 8, that there is a very clear parliamentary intention in subsection (2) that something which is about natural justice not be a ground of review, and we respectfully agree with him that that raises, at the minimum, a serious question for my client seeking to invoke the jurisdiction of that court.

Accordingly, we would wish to have time, not only to consider a reformulation but to consider the appropriate course to adopt before your Honour on the return which might be that we would make submissions to your Honour that the prohibition or the preclusion of jurisdiction on a remitter is such that this is not a proceeding where the Court, by remitting it, could confer jurisdiction on the - it is not a proceeding to which the remitter provisions in the Judiciary Act apply.

HIS HONOUR: So much follows directly from 485(1).

MR MAXWELL: It does so, your Honour. But if so advised, our client might want to make a submission to your Honour that either the better view is that those criteria in the Act do not fit or else that there is sufficient doubt attending them that it would not be an appropriate case for remitter. That is a matter on which we might wish to make submissions to your Honour and we may have a commonality of interests with the Minister in that regard.

I suppose the submission I particularly wanted to make now was that given that this is an ex parte application, on the one hand; secondly, given that service of the papers was effected at or about the time of issue, so the Minister has been on notice about this for some considerable time, and his Delegate, that on the basis of the submissions I have made, your Honour might feel able to grant an order nisi in the terms set out in the draft order on the grounds there set out on the basis that, in our respectful submission, we have more than crossed the threshold sufficient to have the matter returnable. The difficulty I apprehend as I put that forward is that if there were to be a reformulation along the lines that your Honour has said, perhaps splitting it into High Court and Federal Court grounds, then that would require a further order nisi but I imagine, procedurally, your Honour could vacate the order I am postulating now and replace it with such a subsequent order.

I our respectful submission, we would want an order today because, in our submission, we have established the jurisdiction, because if we are right, there would be jurisdictional error; we have demonstrated an arguable case on the facts presented.

HIS HONOUR: But have you demonstrated absence of alternative remedy? That is not a matter on which, I think, we are able today, are we, to have full argument?

MR MAXWELL: Absolutely not, your Honour, no, quite the contrary.

HIS HONOUR: That being so, why should I grant order nisi?

MR MAXWELL: Only that that would encapsulate authoritatively for my client's purposes a view of this Court that there is an arguable case. That will have considerable advantage in the sense that the Minister is confronted by a decision of this Court to that effect, on the material sworn to and the subject of written submission, the Court has been satisfied that there is an arguable case of breach of natural justice.

As I said, it is the fervent hope of my client that the Minister will see that this is an indefensible case in the legal sense and that the decision will be set aside. An order nisi in the terms sought today is likely to conduce to that outcome. In relation to the matter of alternative remedies, in my respectful submission, that is a matter which your Honour could deal with on the next occasion in determining the question that your Honour has raised whether or not the matter should be remitted and the question, therefore, could be dealt with in two parts: order nisi today; question of remitter - in other words the discretionary issue of alternative remedies will not arise until order absolute, on this submission, in any event, will have been addressed by argument as to whether it is either capable of remitter or appropriate for remitter being the matter that we would both wish to make submissions to your Honour about on 20 September. If your Honour please.

HIS HONOUR: Yes. If I were to adjourn it, Mr Maxwell, what do you say about the date of adjournment?

MR MAXWELL: I do not know, your Honour. I would check as soon as I go back to chambers and advise the Deputy Registrar. I am just not sure about 20 September. Assuming it to be clear, that would be entirely convenient to us.

HIS HONOUR: It is either then or it is over into October.

MR MAXWELL: Yes, your Honour, I understand that.

HIS HONOUR: What I might do, since I am not minded to make any order today other than an order adjourning the matter over, is to adjourn the matter to 20 September 2001 at 9.30 in Melbourne or such other date and time as may be fixed by a Justice; reserve costs and certify. Do counsel seek to be heard about orders in that form? Very well, there will be orders in those terms.

MR MAXWELL: If your Honour pleases.

HIS HONOUR: I will adjourn.

AT 2.59 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 20 SEPTEMBER 2001