Lexcray Pty Ltd v Northern Territory of Australia D1/2001 [2002] HCATrans 226 (3 May 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D1 of 2001

B e t w e e n -

LEXCRAY PTY LTD

Applicant

and

NORTHERN TERRITORY OF AUSTRALIA

Respondent

Application for special leave to appeal

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM DARWIN BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 MAY 2002, AT 2.54 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please your Honours, I appear with my learned friend, MR A.S. BELL, for the applicant. (instructed by Cridlands)

MR S.R. SOUTHWOOD, QC: If your Honours please, I appear with my learned friend, MR M.P. GRANT, for the respondent. (instructed by Solicitor for the Northern Territory).

KIRBY J: Yes, Mr Walker.

MR WALKER: Your Honours, in this case throughout, notwithstanding the reduction of issues between first instance and the Court of Appeal and in turn to the substantive issues which would be sought to be agitated were special leave granted, the overall claim has been by way of grievance in relation to the compensation paid for destocked cattle under the Brucellosis and Tuberculosis Eradication Campaign. As your Honours know, that is a campaign which, although administered in the loose sense of that word by government, in fact was carried on by the formation of contracts with individual pastoralists.

That is why in this case the principal claim was one of contract. In relation to the claim of contract, the rate of stipulated compensation was at the heart of the complaint. There were associated claims not, I suggest, subsidiary in importance but spinning off the central fact that this is a campaign carried out by individual contracts between government and pastoralists. Those claims may be summarised very generally, because specificity is of no moment to our argument this afternoon, as claims in the nature of misrepresentation or negligent advice in the form of a statement, not in the form of conduct by a professional adviser, but advice in the form of information passed on at a serious occasion.

Your Honours will have seen reference to the so-called Calley Plan. The eponymous Dr Calley was the senior public servant both responsible for the planning question and for certain pre-contract dealings. At the heart of the non-contractual or extra-contractual case, accordingly, was the meaning to be given to certain dealings between the representatives of my client, the Dunbars, and Dr Calley for the government. There were issues of no moment any longer in this Court which nonetheless obviously occupied real time at trial and at the intermediate appeal to do with what I will call the conversational or spoken element of misrepresentation or negligent misstatement.

CALLINAN J: Mr Walker, in relation to the contract claim - I am looking at page 235 - perhaps you can explain this to me. Was it common ground that the Calley Plan was the contract or is certainly part of the contract?

MR WALKER: No, it is not common ground.

CALLINAN J: Was it your case that the Calley Plan was?

KIRBY J: You said Dr Calley had made certain representations.

MR WALKER: Yes.

KIRBY J: He disagreed and the judge preferred Dr Calley to your clients, the Dunbars.

CALLINAN J: No, but I am talking about the contract claim, not the representation claim.

MR WALKER: Yes. May I step my way through in a combined answer to your Honours' comments and questions. Both your Honours are, with respect, right. The contract claim turns on clause 17 which may be described as payment in accordance with ministerially determined rates.

CALLINAN J: Where do I find clause 17?

MR WALKER: There are several places your Honour can find that. The most convenient place would be page 5 of volume 1, lines 43 and following:

17. The amount of compensation payable to the Owner shall be in accordance with the rates determined from time to time by the Minister - - -

CALLINAN J: All right. I will tell you why I asked you that question. It really was not against you; if anything, it might have been helpful.

MR WALKER: No, would your Honour like me just to pull together 2.2.5 of the Calley Plan, clause 17 of the contract and what your Honour Justice Kirby has correctly referred to as the fate of an extra-contractual claim advanced below?

CALLINAN J: Yes, certainly.

MR WALKER: The Calley Plan, we say, was put forward - and this appears to have been common ground because of Dr Calley's response to the misrepresentation claim by way of conversation - as the way in which the system was being administered. I choose those words carefully, "was being administered", because a temporal point still divides us as to the meaning of the Calley Plan being handed to the Dunbars before their purchase of this property in the Northern Territory. We say, and it would appear the courts below accepted this, that the Calley Plan was put forward by Dr Calley, not surprisingly, as a description of the way in which the system was administered. In defence to allegations that in conversation he had said some other things, in fact Dr Calley said, "Well, I wouldn't have said anything outside what the Calley Plan said". That is why now, because without any findings of dishonesty the trial court clearly had the benefit of seeing the three gentlemen and making findings of credibility which I do not seek to canvass, all the focus is, as your Honour Justice Callinan has apparently gathered, on 2.2.5 of the Calley Plan, for example, extracted at the top of 235.

CALLINAN J: Yes, I mean, I have to say that if the issue were the meaning of 2.2.5, I would have thought that that meant market value.

MR WALKER: Yes, that is right.

CALLINAN J: That is how it strikes me, and I really do not see how any evidence that anybody could have given, assuming that it was admissible, could have changed that.

MR WALKER: No. I would like to persuade your Honour of another view of the last part of that, but as to the first part, your Honour, in our submission, the matter was that plain. Could I simply for convenience take your Honours to 261 of volume 2.

CALLINAN J: I will need to know if this has any relevance how the Calley Plan fits in, if at all, to your case.

MR WALKER: Yes, 261, it is only for convenience into our submissions because it contains the full quotation. Your Honours by going to 235 missed out an important part because of the way it was there extracted of 2.2.5 of the Calley Plan and I need to draw to your attention that upon which the learned trial judge relied in ruling against my client. At lines 41 and following you will see that the words preceding those quoted at 235 are:

Compensation will be based on rates for each category reviewed by the Minister twice yearly -

and our argument was that, although of course that says there is ministerial determination involved in the rates, that what the Calley Plan represented, that is, pre-contractual or extra-contractual representation, was that the basis - that is the word finds at line 43 on 261 from 2.2.5 of the Calley Plan - was a formula which, with great respect, your Honour Justice Callinan has identified as, prima facie, very clearly to do with market value.

CALLINAN J: Is there an entire agreement clause in the agreement between the Minister and - - -

MR WALKER: Yes, there is. If one goes again for convenience to 263 further in our submissions at lines 10 and following in rather attractively plain language, the parties agreed that the agreement was:

intended to cover all things or actions arising from . . . and that this agreement contains the whole of the agreement between them.

So that - - -

CALLINAN J: But it is helpful, is it not, because it says:

intended to cover all things or actions arising from related to or flowing from the approved program - - -

MR WALKER: Yes.

CALLINAN J: Is the Calley Plan the approved program?

MR WALKER: That is right - well, that was the genesis of the approved program which changed from time to time.

KIRBY J: The program is intergovernmental, is it not?

MR WALKER: It has an intergovernmental aspect - - -

KIRBY J: It is a federal, State and Territory - - -

MR WALKER: Federal, State/Territory and, so far as the pastoralist is concerned, is manifest or executed on the ground, literally, by contracts. Your Honour is right, with respect; it was an Australia-wide intergovernmental exercise but, I stress, carried out not as a matter of public administration but ultimately as a matter of contract.

CALLINAN J: Is there any way that you can make a submission that 2.2.5 is incorporated in or forms part of an agreement between your client and the Minister - is that the authority, the contracting - - -

MR WALKER: The Territory. As I read the record, no, because I would be bound by the way in which the case has been conducted below, and with great respect to my predecessors in brief, no criticism is suggested by what I have just said because the contract is a very formally prepared written contract and it contains, apart from what your Honour Justice Callinan has just referred to, no incorporation by reference to the Calley Plan.

CALLINAN J: Unless it forms part of the program referred to in the entire contract clause.

MR WALKER: That would be the book. I am bound to say it was not argued in that fashion before. However, there was an estoppel argument which, as your Honours have seen, we have characterised in our special leave argument, as at the core of the case not dealt with by the trial judge and not attended to by the Court of Appeal - - -

KIRBY J: Well, it is said that it was not dealt with because you did not argue it. That is what is said.

MR WALKER: Your Honour, the material we have mustered in our written submissions show that those submissions were before the court. Can I go back to clause 17 - - -

KIRBY J: That is not a very promising matter for the High Court to become involved in, whether something was argued or was not argued, combing through pages and pages of transcript to try and work that out.

MR WALKER: No, that in itself would not be. That, however, is far from being the characterising feature of our application.

KIRBY J: Would not the estoppel be bound up with issues of what was said by the parties and what they represented?

MR WALKER: No. We have tried to make it clear in our documents and make it clear again from the Bar table that the proposed appeal would not be seeking this Court to review or canvass in any way credibility-based findings of fact. However, clause 2.2.5 of the Calley Plan, the common ground that the Calley Plan was put forward as the way in which the program was administered at argument, not based on credibility as to whether that was tied to the occasion at which they were speaking or whether it was intended to have a broader effect than that, those are arguments which do not depend upon raking over transcript and asking for the subtle influence of demeanour to be spotted between the lines of that transcript.

Your Honours, clause 17 brings us to the final and important point, which then leads to the rather special circumstance which arose late last year. At page 263 lines 4 and following, clause 17, the contractual measure is there set out. Your Honours will have spotted that it raises the risk as a matter of contract law that the contract would simply be unenforceable, that is illusory, because performance of one side of the bargain would be entirely at the discretion of one party. That was avoided on both hands, and your Honours can imagine that both sides were studious to avoid it, by calling in aid the not unsurprising gloss impliedly of clause 17, namely that the determination by the Minister would be carried out honestly and reasonably, and we stress "reasonably". It is in that context that is of our most plain vanilla argument breach of contract that one then came to the document which was delivered late.

May I then take your Honours briefly in the application book to page 296 - - -

KIRBY J: Well, do you read the affidavit of Alan John Lindsay, which is at page 286?

MR WALKER: I do, your Honour.

KIRBY J: Is there any objection?

MR SOUTHWOOD: Yes there is, your Honour.

KIRBY J: We had better sort this out first. What is the basis of the objection?

MR SOUTHWOOD: The basis of the objection is that pursuant to section 35AA of the Judiciary Act 1903 , this Court has no power to receive that evidence. It is also put on the further basis that essentially what is sought to be added as the basis of the application to amend the special leave application is the further evidence, being the letter. It is our submission that the appropriate construction to be given to section 39A of the Judiciary Act is that that provision does not give the High Court, were special leave to be granted, power to receive the further evidence, so it would be futile in any event.

CALLINAN J: Well, that is the argument, is it not, that if the Court cannot receive fresh evidence on an appeal, then it cannot receive that fresh evidence on an application for leave to appeal. Although evidence can be adduced, it must be evidence that goes to matters relevant to the question whether there should be a grant or not.

MR SOUTHWOOD: Yes.

CALLINAN J: I think we understand the argument.

MR SOUTHWOOD: If your Honour pleases.

CALLINAN J: And I am sure Mr Walker does too.

MR WALKER: Yes.

CALLINAN J: I mean, Justice Kirby and I had a different view about this in Eastman, but - - -

MR WALKER: I am not sure that provides me with a section 35A difference of judicial opinion but, if it does, I grasp it.

CALLINAN J: No - - -

KIRBY J: We took the more fundamental view about what "appeal" means in the Constitution, but - - -

CALLINAN J: It is supported by Justice Deane, I might say, as well.

MR WALKER: May I try to answer the objection in this fashion. What your Honours will have seen from the letter itself, which starts at 293 - - -

KIRBY J: Yes, we have read the letter.

MR WALKER: If I could, without taking your Honours to it, flag these points for the purpose of the admissibility and appellate argument. At 294 lines 36 and following there is a paragraph in apologia from the Territory to the Commonwealth for rising costs, but they had gradually been moving towards:

the progressive implementation of market value compensation -

That in itself is evocative for Lexcray given its then concluded adjudicated controversies with the Territory. That paragraph concluded with a description of the state of affairs which characterise payments to Lexcray as:

one that was clearly too low and inequitable - - -

KIRBY J: Which line is that?

MR WALKER: That is lines 42 and 43. Now, that of course matches with the common ground in so far as one sees similarity between the formulae urged by the parties to avoid place of developments, invalidating the whole contract by rendering illusory that, we say, sat at odds with the assertion this was reasonable. Now, what other use that may have had for extra-contractual causes of action, need at the moment only be generally referred to.

CALLINAN J: I can understand all the points you would seek to make on that. What about the threshold point - - -

MR WALKER: Can you see it?

CALLINAN J: Yes.

MR WALKER: Can you see it? We know from the - - -

CALLINAN J: I would like to look at it, I would love to see it, but I just do not think I can.

KIRBY J: According to what some members of the Court have said, we can see it in a special leave application, but - - -

MR WALKER: Yes, in order, among other things, to assess whether special leave should be granted for an argument about whether you could see it.

KIRBY J: But, if it does not lead anywhere, then the question is: why should we not see it?

MR WALKER: Yes. May I say immediately we embrace the logic of my learned friend, whether it be by an objection or by an answer to the special leave submission. We would respectfully suggest the second is better, but we embrace his logic. If it is a useless endeavour, the Court should not grant special leave this afternoon.

KIRBY J: How do you make it useful?

MR WALKER: It is useful for this reason: as the correspondence between 296 and 299 makes plain, it is common ground now that this is a document which was discoverable. The Territory puts in front of that - - -

CALLINAN J: But not necessarily admissible.

MR WALKER: That is why I say "discoverable".

CALLINAN J: That is your problem, I would have thought. Not necessarily admissible and, in fact, not admitted. Is not your proper procedure, if you think this is a knockout letter or something very decisive, to go back to the intermediate Court of Appeal and try to get that court to receive fresh evidence?

MR WALKER: That is not what the Court said in Quade. It is not what is done with wrongfully rejected evidence in - - -

KIRBY J: This was not rejected. It just was not discovered.

MR WALKER: No, but I combine those two for this reason. Your Honours will have seen our citation of Quade 178 CLR and the particular passage is a critical one at 140 to 141. That is the point which, in our submission, is the answer to what I will call the "quasi 73 embargo" sought to be applied by my learned friend. My learned friend says to look to the formula used by Parliament in section 35AA for appeals from the Supreme Court of the Northern Territory and one will see that it echoes the language of section 73 of the Constitution whereby - see Eastman, see Mickelberg - there can be no fresh evidence received. We do not challenge any of that. What we do say is there is fresh evidence and fresh evidence, and this Court, albeit not in a section 73 context, has looked at that in Quade, which of course was an appeal under section 73, governed by section 73. In the passage commencing at the foot of page 140 to 141 - - -

KIRBY J: What is this case?

MR WALKER: Quade. Your Honours will both recall that case because that was the case where the usual test for the reception of fresh evidence of a Court of Appeal was said to be inapplicable to the case where the evidence had been unavailable by delinquent failure to discover.

KIRBY J: But this is scrutinising not what is receivable in the High Court but what ought to be have been received in the Court of Appeal. That is a very different issue. It has not been tendered in the Court of Appeal.

MR WALKER: No. What I - - -

CALLINAN J: Could I just add this, Mr Walker.

MR WALKER: Yes, in answer to your Honour.

CALLINAN J: Sorry. Let us accept, and I accept entirely - indeed, you have a concession to this effect - it was a discoverable document. But it might turn out to be a document in a proper trial which is utterly irrelevant.

MR WALKER: Your Honour, the possibility of the difference is what this Court said about wrongfully non-discovered documents in Quade.

CALLINAN J: Again, I can accept all of that, but that may entitle you to a fresh trial or a retrial.

MR WALKER: A retrial is what we are after.

CALLINAN J: Yes, but not from this Court. It seems to me, Mr Walker, I have to tell you - - -

MR WEST: Not a retrial in this Court; a retrial from this Court.

CALLINAN J: Well, there would have to be in a sense a retrial in this Court. To some extent there would have to be a retrial which involved looking at that letter - - -

MR WALKER: May I tell your Honours why that is within power and clearly so? What was decided in - - -

CALLINAN J: You have not persuaded me at the moment that you can get this in even on a special leave application because it seems to me that the only thing you can get in on a special leave application - - -

MR WALKER: It is not fresh evidence, your Honour, in the sense of fresh evidence in Eastman or Mickelberg. That is the short answer. What they did in Quade, admittedly talking about fresh evidence before a court that can entertain fresh evidence, was to point out that there were two species of fresh evidence: what I will call fresh evidence for the purposes of needing the pass the "fresh evidence" test, and material which should have been before the court but was not. Your Honours will see two categories in particular: evidence wrongfully rejected by the trial judge - that is not before the trial judge, and if there is a jury it is certainly not before the jury - and evidence which might have stemmed from material wrongly not discovered. That is the foot of 140, top of 141:

an admitted failure to comply with the requirements of the trial court's order for discovery of documents.

That, they say, does not fall within the category of fresh evidence for the purpose of the "fresh evidence" stricture in an intermediate Court of Appeal. Question: has this Court ever said, "What is fresh evidence for the purpose of the section 73 constitutional limitation mirrored in section 35AA of the Judiciary Act; see Eastman and Mickelberg?" This Court has never looked at that and, in our submission, fresh evidence as actually exemplified in Eastman and Mickelberg was always right outside the category of wrongfully rejected or wrongfully not discovered. Then we have the first part of that pair, wrongfully rejected evidence. Is that received and looked at by this Court under appeals governed by section 73? Yes, it is. Balenzuela v De Gail is just an example of it. If that is looked at there - - -

CALLINAN J: Mr Walker, let me just interrupt you. Whether a court will even receive matter which is tendered as fresh evidence depends among other things upon whether had it been received the result would have been different.

MR WALKER: No, your Honour.

CALLINAN J: I think it does.

MR WALKER: No, your Honour, Quade's Case is quite different for material which was wrongfully rejected - see Balenzuela v De Gail - but much more importantly in Quade's Case, material wrongfully not discovered. The test is not would it have made a difference but whether it is possible that it would have.

CALLINAN J: A real possibility.

MR WALKER: Yes. In this case we have - - -

CALLINAN J: That is sufficient for my purposes, for my question.

MR WALKER: We have an admission by a party.

CALLINAN J: We would have to decide, if we took this case on, whether its admission would have produced a real possibility of a different result, which is in a sense itself a trial because it involves - - -

MR WALKER: A voir dire, your Honour.

CALLINAN J: - - - looking at all of the other evidence and weighing up the evidence in the context of the whole trial. That is why - - -

MR WALKER: It is a voir dire, your Honour.

CALLINAN J: No, it goes further than that, I think. That is why - - -

KIRBY J: It is turning the appellate process into a trial process and, as I understand it, that is what the majority have said is the reason against allowing evidence to be admitted in the appellate jurisdiction - - -

MR WALKER: Then I ask this, your Honours: is any of the reasoning in Eastman or Mickelberg capable seriously of suggesting that Balenzuela v De Gail was wrongly decided, when the High Court pored over photographs with signs, "Boxer pups for sale", to see whether the jury in a running down case should have - - -

KIRBY J: But they were photographs admitted; they were on the record.

MR WALKER: No, they were not admitted. They were rejected and the jury never saw them and never heard the questions or answers of the witness whose evidence was stopped on the basis of the rejection. It never happened. It was never available. If you - - -

KIRBY J: Were they marked for identification in the trial?

MR WALKER: Yes, but not the answers never received, your Honour. They were in gremino. What we have therefore - - -

CALLINAN J: Worse has happened than that.

MR WALKER: That is not unconstitutional, is my point.

CALLINAN J: In the second Wheat Case after the case was heard, a whole lot of material was put before this Court, which was fresh of an economic kind, and the Court relied upon it in reaching its decision. Now, I do not think myself that any of that kind of thing is really possible or permissible since Eastman and Mickelberg.

MR WALKER: But that is not a section 73 point when this Court, on the trial of an action or a hearing of a demurrer in this Court, entertains material in that fashion.

CALLINAN J: Let me ask you this - - -

MR WALKER: This is 35AA of the Judiciary Act mirroring section 73. Question: "Has this Court ever asked itself does the Quade's Case material or the Balenzuela v De Gail wrongfully rejected evidence never before a trial judge, may this Court ever look at it?" Sir Owen Dixon and the others unanimously in Balenzuela v De Gail said, "Yes, of course you look at it, and you order a retrial because there has been an error, that being an appeal stricto sensu under 73.

CALLINAN J: I understand your submission. You are saying that if Eastman goes as far as we have suggested it does, then this Court would never be able to look at wrongfully rejected evidence.

MR WALKER: And the answer - - -

KIRBY J: Yes, but that is marked for identification. It is on the record in the court below.

MR WALKER: Yes, but your Honour, what about questions never asked and answers therefore never given because a topic is ruled inadmissible.

CALLINAN J: But that is why experienced trial counsel always ask that the document be marked.

MR WALKER: Yes, your Honour, and always persist in asking questions.

CALLINAN J: And flags clearly - yes, asks questions.

MR WALKER: And say, your Honour, "If I had not been stopped I was going to ask X, Y and Z."

CALLINAN J: Exactly.

MR WALKER: I accept that, your Honour. Then I move to the category that matters to this case, material that never got to the Bar table.

CALLINAN J: And you say you never had that opportunity in this case?

MR WALKER: Never got to the Bar table, therefore never marked by the Bench. That is an a fortiori case because that is the party - - -

CALLINAN J: Would that not be a very persuasive argument to present to the intermediate Court of Appeal?

MR WALKER: If we had it before then, but we did not have it before then.

CALLINAN J: No, but you can go back, can you not?

MR WALKER: No, your Honour.

CALLINAN J: Why can you not go back?

KIRBY J: Can they reopen - has the record been formalised? Have the orders been entered?

MR WALKER: Orders have been taken out and entered. I ask, not rhetorically: does the Northern Territory concede that we can reopen in the Court of Appeal? In our submission, it is very difficult to detect them having said any such thing in their written submissions.

KIRBY J: They ask you to specify how it is relevant.

MR WALKER: Your Honour, it is relevant because - I took you to the passage - it admits that compensation was payable in a fashion which - - -

KIRBY J: They might say, "These are letters between Ministers. We all know that Ministers say, as between - - -

MR WALKER: But that is evidentiary.

KIRBY J: - - - misericordia statements about the poverty of the State or Territory.

MR WALKER: Your Honour, that is the weight of an admission. That is the sort of thing that gets looked at at a trial, when people get cross-examined and witnesses get mustered. That is the weight of things. What Quade's Case says, and for that matter so do the older cases on admission - - -

KIRBY J: But you have to elevate it to a point that it might well or would possibly or would probably have affected the outcome.

CALLINAN J: Real possibility.

MR WALKER: No, I do not have to do that on Quade's Case test. Quade's Case was about whether those tests applied where a party - one of the parties, the Northern Territory - had failed to give the discovery directed. Your Honours can well imagine how different the matter would have been had we had that before the trial and not after the appeal.

CALLINAN J: Mr Walker, is a failure to discover in the Northern Territory contempt of court?

MR WALKER: No. It is a breach - - -

CALLINAN J: In some jurisdictions it is.

MR WALKER: No, I cannot say that. It is a breach - and nor was, in Quade's Case, contempt any part of the ratio.

CALLINAN J: No. I understand that, but a court will always reopen even if the order has been entered if there has been fraud, for example.

MR WALKER: Not ex debito justitiae, no, your Honour. Not as of right, not automatically.

KIRBY J: There is a separate action for fraudulent - - -

CALLINAN J: Exactly.

MR WALKER: This is not fraud. I make it clear I am not alleging any fraud.

CALLINAN J: No, I am not suggesting it is fraud. That is why I asked you about the possibility of contempt.

MR WALKER: Yes. No, I cannot say that, your Honour.

CALLINAN J: I think Chief Justice Gibbs in a case said that the categories for reopening are not closed.

KIRBY J: But I think this Court in De L or one of - - -

MR WALKER: DJL, yes.

KIRBY J: - - - DJL took a rather harder line on that.

MR WALKER: Yes.

KIRBY J: I took a different view.

MR WALKER: We would press upon the Court that DJL [2000] HCA 17; 201 CLR 226 is by no means comforting to what I will call the ease of re-entry to a court because of material newly discovered. Now, this is not fresh evidence in the sense that it normally is where you have to show why did you not have it earlier. This is fresh material because the other side should have given it to us but did not. It was a fortiori in Quade's Case and it is clearly a fortiori when asking, "Was Balenzuela v de Gail wrong?", answer, "No".

Has this Court yet looked at how one reconciles Balenzuela v de Gail about wrongfully rejected evidence, Quade's Case about wrongfully non-discovered evidence, because that was also an appeal stricto sensu as well and finally, Eastman and Mickelberg where, on any view of it, the evidence was fresh in the first sense, not the second sense, fresh in the sense that it could have been got before and had not been, nothing like wrongfully rejected evidence, nothing like wrongfully undisclosed material.

KIRBY J: Yes, but the problem as I understand it is that the rationale for the line that has been taken by the majority in this Court is that it is inherent in the appellate jurisdiction of the Court that you cannot enlarge the record, including, as I would take it from that theory of the Constitution, new material that ought to have been available but was not.

MR WALKER: But that is not what wrongfully rejected evidence demonstrates.

KIRBY J: Well, it has not been held that way but it seems to be inherent in the notion of appeal.

MR WALKER: Then in that case, your Honour, there is a special leave point in whether Eastman can be understood as saying that Balenzuela was wrong.

KIRBY J: You would only say that if we formed the view that if only you had had that letter, a letter between politicians ad misericordiam, that if only you had had that, that would have made all the difference at the trial.

MR WALKER: No. Your Honour is misdirecting yourself, with respect, by saying "all the difference".

KIRBY J: There are two solutions to the problem that you have presented. One is that we - speaking for myself, I would not wish to be excluded from any consideration of this issue if the Full Court were to consider it.

MR WALKER: Yes, your Honour.

KIRBY J: Because it is a constitutional question. But there would be two ways to deal with it. One would be for this Court, as presently constituted, to state a question of law for determination by the Full Court and then come back with the benefit of that determination to resolve the special leave application.

MR WALKER: That would limit the scope of the argument. Yes, your Honour, and if it were wrong - - -

KIRBY J: And the other would be for the Court to refer the whole application for special leave into a Full Court and the third would be for the Court to refuse special leave on all the other matters but to refer this issue into a Full Court. They are the three possibilities.

MR WALKER: Yes, your Honour.

KIRBY J: The fourth is to refuse special leave.

MR WALKER: Yes, your Honour.

KIRBY J: Now, I think we will start your time running again now, Mr Walker. You have had a bit of a free bite at the cherry, as they say. It is now time for you to be submitted to the ordinary rules.

MR WALKER: May it please the Court.

CALLINAN J: Can I just ask you this before the gong sounds?

MR WALKER: I think it has, your Honour.

CALLINAN J: I think there is a decision of Chief Justice Gibbs - I might have referred to it in that VDJ Case - in which I thought his Honour said the categories of cases - - -

MR WALKER: Yes, he did, yes.

CALLINAN J: - - - for fresh evidence are not closed, that, for example, fraud and those sorts of things may - - -

MR WALKER: Was it Bailey v Marinoff 125 CLR, your Honour is thinking of?

CALLINAN J: That sounds right, yes. I think I cited the passage, did I not?

KIRBY J: I think we both did in Eastman, taking the, shall we say, broader view that we did. The majority were unmoved.

MR WALKER: Well, I do not mean to be provocative when I say I think his Honour was dissenting and none the worse for that matter - - -

CALLINAN J: Yes, but I do not think anybody else has said that it will only and for all times be in cases of fraud that you cannot get a reopening, or perhaps, as Justice Kirby says, bring your fresh action to set aside the - - -

MR WALKER: That is right. Fresh action seems to be fraud.

KIRBY J: Seems to be only fraud.

MR WALKER: Fraud. It seems to be.

CALLINAN J: I think that is right.

MR WALKER: Now, it may be there are species of fraud, bribery, corruption, et cetera, but that is fresh action.

KIRBY J: This might make the Court rethink the general principle in Eastman - - -

MR WALKER: It might, your Honour. It might. That is the temptation.

KIRBY J: - - - and Mickelberg.

MR WALKER: That is the temptation, your Honour.

CALLINAN J: And I will tell you what, if you cannot persuade the Court as constituted, you have big problems.

MR WALKER: I should just about stop then, but for this sentence. Your Honours, evocatively, Sir Owen Dixon in Balenzuela v de Gail pointed out that in looking at the material about the photo of the "Boxer pups for sale" sign to locate another witness so that one could have argued liability differently, in pointing out that the evidence having been wrongfully rejected, the line of questioning having therefore been cut off, there had been something go wrong in the trial. As Sir Victor Windeyer said in the same case, yes, we are pressed with the fact that a retrial is a deplorable thing but where the interests of justice show have been defeated by failure of process, it is to be deplored but to be required".

Now, in our submission, the same thing is true but even more strongly where the material was never available at all. When it is in the nature of an admission material, all the questions of weight to which your Honour Justice Kirby has referred to require trial, process and testing, then, in our submission, it is very evocative that Sir Owen went out of his way to say, "And, of course, there must be a retrial because otherwise appellate courts would be usurping the function of what was then a jury question". Translate that to trial court question. Translate that back to the section 73 jurisprudence that my learned friends rely upon and, in our submission, that jurisprudence can never be understood. It was not directed to the subject matter of material not before the court which should have or could have been before the court.

KIRBY J: Well, the other theory of the Constitution is that the appellate jurisdiction is a special jurisdiction. It was relatively new when it was put in the Constitution. Finality is important. You have come to the end of the line unless you can show fraud. The general interests of society are to uphold the finality of the decision and that is it.

MR WALKER: Your Honour, the skies are not falling as a result of what - - -

KIRBY J: The skies fell for Mr Mickelberg and for Mr Eastman. They both thought it was very - - -

MR WALKER: But the skies are not falling on the principle that we urge in terms of - - -

CALLINAN J: But there were some, I think, cases in the Privy Council as early as the 1850s in which the Privy Council had received evidence, I think, and they were referred to by Justice Deane, I think, in Mickelberg.

MR WALKER: Yes, your Honour. We are not talking about receiving evidence in a Mickelberg or Eastman sense. We are talking about looking at the content of what the appellant complains should have been there by reason of proper process.

KIRBY J: So let me get this clear. You are not saying that the High Court should receive this material, the letter, in order, itself, to conduct a trial of the merits of the matter but to evaluate the significance of the letter in the context of the issues determined at trial and if the Court comes to the conclusion that within the test in Quade it might have affected the trial to set aside the judgment because the Court of Appeal cannot do so in accordance with DJL.

MR WALKER: Apart from the last part, yes, your Honour, and so that this Court can exercise its section 36 Judiciary Act power.

KIRBY J: The Court of Appeal cannot set aside its own formalised orders.

MR WALKER: No, quite.

CALLINAN J: I am wondering whether that is absolutely correct, that whether, in some cases, not of fraud, but analogous to fraud in the sense - well, this case, when a document which - - -

MR WALKER: Delinquency, your Honour.

CALLINAN J: Yes, delinquency. Your application might be more attractive if you went back to the intermediate court and were rejected.

MR WALKER: And had been rebuffed.

CALLINAN J: Yes.

MR WALKER: We were already in this Court when everything came to light, your Honour.

CALLINAN J: I understand that, and that is why perhaps it might be more appropriate even - - -

MR WALKER: Yes, and Quade's Case was, after all, to this Court.

KIRBY J: Should we stand this matter over part heard and allow you to make any application you are advised to make to the Court of Appeal? One hesitates to run up needless costs in these matters, but I can see something of a problem in the light of DJL, your coming here and urging upon this Court that it should intervene when you have not even made any application to the Court of Appeal.

MR WALKER: I would not oppose that, your Honour. Your Honours have heard and know what my primary submission is, but I would not oppose that course.

CALLINAN J: The Court of Appeal would be in a much better position than we are to evaluate the overall significance of this document.

MR WALKER: Only in theory, with respect.

KIRBY J: Except that one of the judges of the Court of Appeal has retired. Has Justice Gallop retired from the Court of Appeal of the Northern Territory or not? He may still have a commission in that court.

CALLINAN J: I have an idea he was an acting judge.

MR WALKER: Acting commissioner. So it is only in theory that what your Honour says, with respect, is true.

CALLINAN J: Two judges are still available. There is probably provision there that two judges can constitute an appeal court. Most places have it.

MR WALKER: I would not contend against what your Honour says in terms of local court, no.

CALLINAN J: I think your application might be less unattractive at that stage really, Mr Walker, and it may even be that perhaps the categories of case in which a fresh action can be started - not that I am suggesting you would necessarily need to do that - but are not closed or not confined to fraud. I was in one of the very few of those actions, Mr Walker.

MR WALKER: To set aside, your Honour, yes.

CALLINAN J: To set aside. I was for a defendant in the Mudginberri Case which concerned the BTEC program to some extent.

MR WALKER: Your Honours, one reason why for the individual justice of this case special leave to appeal should be granted, we respectfully submit, is that the invidious prospect is opened on any view of it of what I might call chancy and uncertain marginal or extreme procedures of the kind that have been discussed in the last five minutes.

CALLINAN J: I do not see going back to the intermediate Court of Appeal as answering that description. The starting of some fresh action, yes, but not going back and perhaps even being rejected.

KIRBY J: There may be some proceeding analogous to fraud but not involving fraud that permits relief to be given by new proceedings. Of course, the other possibility is that the respondent - and I am not suggesting anything or saying that it ought to be done - might consent to the setting aside of the judgment so that this matter may be dealt with absent the question of failure to discover documents which you say ought to have been discovered.

MR WALKER: Your Honour, that is obviously - - -

CALLINAN J: And you might not even get it into evidence. It might turn out to be utterly irrelevant to the main issues.

MR WALKER: We submit that speculation is entirely without foundation, bearing in mind the addressee and the writer of the letter - - -

KIRBY J: I think your time is up. I do not see a light but I am sure it is up. I have a feeling it is up.

MR WALKER: Thank you, your Honour. So am I.

CALLINAN J: Just before you sit down, do I take it then that - I do not know whether we give you the chance but, if it were dismissal or an application for an adjournment, you would look for - - -

MR WALKER: If your Honours determined that this was an application that should follow an application below, then we would apply accordingly.

CALLINAN J: We would not give you advice but we - - -

MR WALKER: No, your Honour.

KIRBY J: I think you have to elect between the four possibilities to which we have now added a fifth, which is adjournment.

MR WALKER: Because of their inconsistencies which makes an election necessary, we would elect to seek to adjourn. Of course, if we fail in the adjournment application, this application will then be determined.

KIRBY J: Yes, thank you, Mr Walker. What do you say to that application now?

MR SOUTHWOOD: It is opposed, your Honour. The reason it is opposed is because of how the applicant presented its case below. Perhaps if I could just start by saying that there are in effect three causes of action which are of significance - potentially five because of the estoppel causes of action which were pleaded below. The estoppel cause of actions were based really on promissory estoppel, although, if anything, clause 2.2.5 is a factual representation, not a promissory representation. But the estoppel and the negligent misrepresentation case so far as it is concerned now was essentially put in these terms in paragraph 8 of the statement of claim. Regrettably I do not think your Honours have paragraph 8 of the statement of claim but it was pleaded in these terms:

Further or alternatively to paragraph 7, on or about the 5 January 1984, the Defendant represented to the Plaintiff ("the January 1984 Representation") that the Defendant would pay compensation to the Plaintiff for all cattle destocked on Nutwood Downs in accordance with the Approved Program at rates equal to the on-farm value -

As to whether that representation is made or not is really a factual issue based upon the construction of clause 2.2.5 of the Calley Plan. What was in effect admitted by the defendant - the respondent - was that so far as payments were concerned, the payments of compensation were less than "on farm" value.

CALLINAN J: What is "on farm" value?

MR SOUTHWOOD: "On farm" value is a very amorphous concept. It to some degree emerges from the - - -

CALLINAN J: Is it a Northern Territory term of art?

MR SOUTHWOOD: No. It was a term of art of the campaign, your Honour, and the sorts of notions which potentially are involved are perhaps best set out in the further agreement which was entered into between the parties on 3 November 1989. This appears in application book 1 at page 12. If I could refer your Honours to page 21 of that document, the valuation criteria of what is involved in that are set out to some degree.

CALLINAN J: You would take off freight.

MR SOUTHWOOD: Yes.

CALLINAN J: Is it market value less freight?

MR SOUTHWOOD: But it also does involve certain other assessments going to age, sex, breed, et cetera, which I suppose may come into market value in any event.

CALLINAN J: Well, they do. My wife has been running cattle for 35 years and I have never heard the expressions you are using.

MR SOUTHWOOD: But it was, as I say, not merely a Territory notion; it was a campaign notion. But without condescending into the notion any further, if I may move on, your Honours. What was the position below in relation to the misrepresentation case is to some degree set out in the second book in the amended submissions of the applicant. I think it appears at paragraph 17 on page 306. There is the statement:

The trial judge made a limited finding on the Applicant's contention, namely:

"Clearly enough the defendant was not paying `on farm value' as compensation, in the BTEC Committee's sense of that expression".

So, essentially, on the misrepresentation cases and the estoppel cases, the finding, namely that payments were not in accordance with that basis, is established in any event and arguably on the pleadings in schedule 1 of the pleadings, which is referred to elsewhere.

So in relation to that issue, the question is to what use is the letter now sought to be introduced into evidence? The answer is none, because what determined those causes of action was the construction - the factual construction - of the representation which was said to form the basis of those causes of action, and they were dismissed on that basis. In relation to the contract case, the applicant pleaded two contract cases; firstly, that clause 17 imported "on farm" value based upon a construction of the recitals of the agreement. The other basis upon which it sought to plead compensation was set out in paragraph 13B of the statement of claim. Paragraph 13B was pleaded in the following terms:

Alternatively, in or about late August 1984, the Plaintiff and the Defendant agreed that in consideration of the Plaintiff undertaking to conduct and comply with the Approved Program the Defendant would pay the Plaintiff compensation for all cattle destocked on Nutwood Downs pursuant to the Approved Program;

(a) in an amount which was a fair and reasonable amount, which amount was equal to the Market Value of each mustered animal destocked, plus a flat rate as determined by the Minister in respect of each unmusterable animal.

So, in effect, what was said to be imported into clause 17 was that the compensation must be objectively reasonable, given certain criteria.

Now, as to the breach, so far as it was concerned, it was based upon the failure to pay either fair and reasonable value, objectively assessed, or on the failure to pay "on farm" value. That was the basis upon which the breach case was presented.

CALLINAN J: Why is the letter not relevant to that?

MR SOUTHWOOD: In so far as that goes - again, in so far as it imports market value, or "on farm" value - that, in effect, was never really an issue. That is to say, it was not paid.

CALLINAN J: Well, "on farm" value does not really tell you anything, does it? "On farm" value, it strikes me, the ordinary meaning of that would be what somebody coming on to the farm would pay, which, I would have thought, market value less the cost of getting them to the market or the abattoir. Now, if that is right - it seems to me, it is at least arguably right - why is not the letter saying that what was being paid was inequitable an admission to the contrary of that?

MR SOUTHWOOD: The admission was made, in any event, that the rates which were paid did not match market value or the description to which your Honour now gives.

CALLINAN J: Was not the word "inequitable" used? Am I wrong about that?

MR SOUTHWOOD: Yes, "too low and inequitable" is there, but - - -

CALLINAN J: Well, why is that not a contradiction of "on farm" value, or market value?

MR SOUTHWOOD: It may be, but it is - - -

CALLINAN J: Is that not a real possibility, then?

MR SOUTHWOOD: It may be, but if I may come to that question shortly - - -

CALLINAN J: Yes.

MR SOUTHWOOD: What, in a sense, was put as the case - well, not in a sense - what was in fact put as the case were those two contracts and breaches of those two contracts. The position, however, was that neither of those two contracts were found to be the contract made between the parties. The contract found is set out at page 237, I think it is, your Honour, of court book 2, and - - -

CALLINAN J: Well, the contract found was the written agreement to which Mr Walker referred us. Is that right, or is it more than that?

MR SOUTHWOOD: Yes. The contract found was the written agreement, subject to the rider that the Minister was controlled by a duty to act honestly and reasonably.

CALLINAN J: Or, if you like, not inequitably. Is there any difference? That is a synonym for "not inequitable", is it not?

MR SOUTHWOOD: There is this difference: one goes to an assessment of his conduct in the specific circumstances, the other goes to an assessment of the price per se. Now, in relation to that, it was, at all times, understood throughout the proceedings that the compensation scheme had moved from a floor price scheme to a flat rate scheme to a panel system, which, in effect, got to "on farm" value, because valuers came onto the property and valued the cattle. So that, at all times, it was known to the applicant that there was a vast difference between the compensation paid under the panel system and the compensation received under the flat rate system. So in other words, the case, if it was - - -

CALLINAN J: I do not understand this. Either it is clause 17 or it is not. If it is clause 17, then you have to give it some meaning. If it is not clause 17, it is something that is to be found outside the document, is it?

MR SOUTHWOOD: No. By implication - clause 17, essentially, was the clause that determined the price. Also, it was found that what was to be implied into the contract was a term that the Minister act honestly and reasonably. Now, it was never contended in circumstances where, essentially, what was commented on - or is now commentated on - by the Minister in the letter of 20 August 1990 was patent. At all times, it was apparent that the basis of compensation paid between 1984 and 1987 was the flat rate, and that was a vastly different rate to the compensation paid in 1990, pursuant to the panel system.

CALLINAN J: I am sorry. I do not see why, necessarily, if the Minister has acted inequitably, or the price that has been paid is inequitable, that that is necessarily irrelevant to the fixing of a fair and reasonable price, or a requirement that the Minister act fair and reasonably in fixing the price. Everything you have been saying so far seems to me to suggest that this letter might be relevant, frankly.

MR SOUTHWOOD: The point we are trying to make - - -

CALLINAN J: On the contract point.

MR SOUTHWOOD: The point I am trying to make is, labelling what in fact occurred does not add anything.

CALLINAN J: Except, I have the impression, from what you are saying to me, that the parties departed from the written agreement. Is that your submission?

MR SOUTHWOOD: No, the parties never departed from the written agreement; nor was it found that the contract, as found by the court below, had been breached; nor was it contended.

CALLINAN J: First of all, to decide whether there has been a breach of a contract, you have to ascertain what the contract means. Unless somebody is going to rely upon something outside the contract, then extrinsic evidence is not going to be admissible. It is not even going to be admissible on the implication of a term.

MR SOUTHWOOD: But the issue is breach, not - - -

CALLINAN J: Yes, well, that is the second issue; the first issue is, what does it mean? What does the contract say? You cannot come - you do not even get to the second matter until you have decided what it is that has been breached or arguably has been breached.

MR SOUTHWOOD: What was found in relation to the contract was that the contract between the parties was governed by clause 17.

CALLINAN J: Yes.

MR SOUTHWOOD: Clause 17 provides a wide discretion to the Minister in terms of setting rates of compensation. It was never said, if that is all clause 17 meant, that clause 17 had been breached.

CALLINAN J: No, it was said, was it not - well you told us the two ways in which it was pleaded and I am not immediately satisfied that, on either of those two bases of which you told us - I do not think we have got the pleading, have we?

MR SOUTHWOOD: No, unfortunately the - - -

CALLINAN J: No, but on either of those two bases, at the moment, I could not say categorically that the letter was irrelevant or, indeed, on an ordinary reading of clause 17, for that matter, could I say categorically, at the moment, that the letter was irrelevant or, rather, the admission contained in the letter was irrelevant.

MR SOUTHWOOD: The letter is perhaps not so much irrelevant, but the position is this, that in relation to the contract contended for by the respondent and found by each of the courts to be the case, namely that clause 17 governed the relationship between the parties and pursuant thereto the Minister had a wide discretion, it was never suggested that there had been a breach of a contract of that nature, despite all of the facts which, in effect, are labelled in the latter of the Minister, being known. So being in a position to have contested that there was a breach of the contract argued for by the respondent and found by the courts to be the case, there was never a challenge asserting breach of that contract, even though all of the circumstances were known and in evidence, that is, the circumstances which are referred to in the relevant sentence of the letter.

CALLINAN J: Did the Minister admit that he had acted inequitably?

MR SOUTHWOOD: No, because - - -

CALLINAN J: Well, did the applicant know that the Minister had admitted elsewhere that the Territory or he had acted inequitably?

MR SOUTHWOOD: No.

CALLINAN J: And nor did the court, of course.

MR SOUTHWOOD: The court knew what had occurred.

CALLINAN J: Yes.

MR SOUTHWOOD: And the evidence of what had - - -

CALLINAN J: But not that the Minister regarded what had happened as being inequitable.

MR SOUTHWOOD: Not his conduct though. The letter does not go to his conduct in the circumstances which applied at various times - - -

CALLINAN J: Well, conduct that produces an inequitable result is surely, at least arguably, inequitable or unfair conduct.

MR SOUTHWOOD: Not in the circumstances of the case, because the issue, we submit, is whether he conducted himself reasonably. All of the evidence was to the effect that he did so conduct himself, in a sense. Perhaps if I could just - in Pollock on Contract, I am reading from the sixth edition at page 45, as is referred to in place of developments. In fact it is the ninth edition referred to there, that the question of illusory contracts is dealt with. On page 45 of the sixth edition, this statement is made:

The circumstances of each case (or a written instrument the context) must be looked to for the real meaning of the parties; and "I leave it to you" may well mean in a particular circumstances (as in various small matters it notoriously does), "I expect what is reasonable and usual, and I leave it to you to find out what that is," or "I expect what is reasonable, and I am content to take your estimate (assuming that it will be made in good faith and not illusory) as that of a reasonable man".

Now, it is the contract of the first kind - - -

CALLINAN J: What is the authority for that proposition?

MR SOUTHWOOD: The authority cited here is a case of Roberts v Smith and Bryant v Flight.

CALLINAN J: What is the reference?

MR SOUTHWOOD: The reference for that is [1839] EngR 34; (1839) 5 M & W 114.

CALLINAN J: We might have moved a bit beyond that.

MR SOUTHWOOD: Yes, but I am not seeking to go there for authority of that proposition; I am simply seeking to categorise the nature of the contracts pleaded and all of the circumstances about the setting of rates were known; the letter adds nothing to that. The circumstances were in evidence and the applicant never sought to contend that the Minister's conduct was unreasonable. If your Honours please.

KIRBY J: Yes. Yes, Mr Walker.

MR WALKER: Your Honours, we have collected at page 305 of the application book in paragraph 12 extracts that show the attitude taken by the Territory in relation to the obligation they conceded for the compensation to be set at rates as a result of conduct which was honest and reasonable, and we stress reasonable. One finds, for example, in item (c) the concession that the Minister had to exercise the discretion "honestly and reasonably" and one finds in item (e) an assertion of:

rates were set in good faith and consistent with the agreement -

and, most particularly, in (g):

what was paid reflected the fair assessment by the Minister, after consultation, based upon that criterion.

Which was "on farm" market value. That last one, in particular, is quite at odds with the admission plainly contained by the Minister in the serious dealing between one minister at Territory level with another minister at compensation level concerning the expenditure of public money.

CALLINAN J: What you have read, was that the pleading or what was that, Mr Walker.

MR WALKER: These are submission.

CALLINAN J: Submissions.

MR WALKER: Submissions by the Territory.

CALLINAN J: Well, they accept the application of Meehan v Jones, I see.

MR WALKER: Yes, they accept the tests - - -

CALLINAN J: That goes a very long way; I can remember when that was decided.

MR WALKER: They accept the test. They assert that it was met. They cannot, in our submission, go the third step and say, "This letter would have had no effect whatever on the determination of whether that standard was met" and, in our submission, everything that has fallen from our friend about that matter really shows that there was a factual debate which could have been had and which we are entitled to say, should have been had, had the process of the court worked properly; not miscarried, because the Territory failed to give discovery. There has been no explanation of the failure of discovery at all. That is highly significant.

The next thing we need to say is simply this, concerning the question of reception of evidence, that the very debate which it is possible to generate without, what we would submit, clinching authorities, being capable of being cited from the Bar table to your Honours this afternoon, bespeaks the special nature of the point as one apt to receive a grant of special leave.

CALLINAN J: The way in which the matter has developed and been argued, Mr Walker, it seems to me that there might be more attractive ways of formulating your application in raising, perhaps, more directly the problems perhaps of trying to reconcile Quade or extend Quade - - -

MR WALKER: With Eastman

CALLINAN J: - - - it may even have been with Eastman. That has itself the appearance of possibly a special leave - - -

MR WALKER: That is what I do put, that this is an opportunity to ascertain whether the all-important capacity illustrated in Quade and in Balenzuela for this Court to do justice by ensuring that the processes of justice have worked below - - -

KIRBY J: Yes, but I referred to the need to have this residual power to do justice in Eastman and it fell on deaf ears.

CALLINAN J: So did I.

MR WALKER: Your Honour, this is an opportunity for two cases, which were not reflected upon adversely to any degree at all or any of the principles covered in them.

KIRBY J: Yes, but where you stand now, you face a discretionary reason - - -

MR WALKER: Yes, your Honour.

KIRBY J: - - -and that is why you sought an adjournment and therefore, at the moment, we are really dealing with an adjournment application, which we will now dispose of.

MR WALKER: May it please, your Honour.

KIRBY J: The Court is now constituted to hear a special leave application between Lexcray Pty Limited ("the applicant") and the Northern Territory of Australia ("the respondent").

At the beginning of the application the applicant sought to read an affidavit to which is annexed certain evidence. The reading of the affidavit and the receipt of the evidence was objected to for the respondent. It was argued that the reception of the evidence would be inconsistent with the exercise of the appellate jurisdiction conferred on the Court by the Constitution. Accordingly, so it was put, it would be futile to receive the new evidence and it should therefore be rejected. Reference was made to Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 and Eastman v The Queen [2000] HCA 29; (2000) 74 ALJR 915. Reference was also made to the Judiciary Act (Cth) s 35AA governing appeals to this Court from the Supreme Court of the Northern Territory.

In support of its request for special leave, the applicant wishes to advance an argument that, notwithstanding Mickelberg and Eastman, there remains a residual circumstance in which this Court might receive evidence which by default or error has been excluded at the trial. In support of this proposition, the applicant refers to Balenzuela v de Gail [1959] HCA 1; (1959) 101 CLR 226 and Commonwealth Bank of Australia v Quade (1991) 178 CLR 134.

The evidence annexed to the affidavit includes a letter by the then Minister for Primary Industries and Fisheries of the Northern Territory (the Honourable Mike Reed MP) to the then federal Minister for Primary Industries and Energy (the Honourable John Kerin MP). That letter is dated 28 August 1990. In that letter the former Minister, Mr Reed, stated that the level of compensation payable to persons such as the applicant under valuations of compensation (the matter in dispute in the case) was "clearly too low and inequitable".

The applicant relies on the fact that the level of compensation in contest between the parties was the "compensation . . . payable at rates laid down by the Minister". The applicant therefore wishes to advance an argument, before this Court, that the new evidence is vital because it shows that the very person who had the duty to determine the amount of compensation payable to the applicant from time to time, both as originally represented to the applicant and under a contract later agreed between the parties, was the Minister who acknowledged that the level of compensation so fixed by him was "clearly too low and inequitable".

The letter was not discovered by the respondent, although discovery was had before the trial. It belatedly came to notice after the appeal was rejected and then only in the course of other proceedings. According to another letter that is annexed to the affidavit, it is conceded for the respondent that the Minister's letter was "technically discoverable in these proceedings". As well, the applicant argues that, on the face of things, if the letter were received, it would be material to the approach adopted to the resolution of the dispute between the parties. The lack of the evidence at the trial was no fault of the applicant; by inference it was the result of the respondent's failure to produce the letter on discovery.

It is premature for the Court, as now constituted, to consider the issues raised by the applicant's argument. This is because the applicant has not sought to have the judgment and orders set aside in the Court of Appeal of the Northern Territory, within any powers that that court may enjoy, having regard to what this Court held in DJL v Central Authority (2001) 201 CLR 266. To cure that defect, the applicant has asked this Court to adjourn the special leave hearing so as to permit it to make application to the Court of Appeal of the Northern Territory before pressing on this Court the constitutional and statutory arguments which it has foreshadowed. The respondent has opposed the application for adjournment.

Against granting the adjournment are the obvious considerations of costs and finality of litigation and perhaps the consideration that the applicant ought to have foreseen the need to apply to the courts of the Northern Territory before the special leave hearing was listed. However, in favour of granting the adjournment is the fact that the reason for the late discovery of the new evidence appears to involve no default on the part of the applicant. Moreover, the issue raised is ultimately a constitutional one and, at least at this stage of the argument, appears to have some interest and even possibly some merit.

I am, therefore, of the view that the interests of justice favour the adjournment of the proceedings to permit the applicant to exhaust any rights that it may have in the Supreme Court of the Northern Territory arising out of the belated discovery of the evidence. In providing the adjournment on this basis, I am not indicating any view about the powers of the Supreme Court of the Northern Territory to hear the application or to alter the orders which the Court of Appeal has pronounced and which have apparently been formalized.

It is sometimes possible for a party to bring collateral proceedings to attack a final judgment that has been entered in the records of a court: see McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529 at 533 and Wentworth v Rogers [No 5] (1986) 6 NSWLR 534 at 538. The applicant disclaims any assertion of a fraudulent basis for seeking relief in this case. This Court has not considered whether there are any other, broader, grounds for doing so by way of collateral application after final orders.

In the light of the outcome of any proceedings in the Northern Territory, the application for special leave might become redundant. It could then be discontinued. On the other hand, if proceedings in the Supreme Court of the Northern Territory were not ventured or, if brought, were not determinative of the issues between the parties, the application for special leave could be relisted before this Court. That would then be the time for this Court to consider whether it is reasonably arguable that the applicant , in the events that have transpired, is entitled to have this Court receive and determine the relevance of the belatedly discovered letter in disposing of any appeal to this Court. That question itself might, at that stage, constitute a special leave question. At least, it might constitute a question which would be referred by this panel to be decided by a Full Court. No final view has been reached upon any of these matters.

Accordingly, I would not at this stage grant special leave. However, I would adjourn the application. I would reserve the costs of the adjourned application.

CALLINAN J: I would agree with the presiding Judge. I would just add that another advantage in an adjournment is that it would give the respondent an opportunity to consider its position and to determine what attitude it would adopt in any application that might be made by the applicant in the courts of the Northern Territory, bearing in mind that it did have an obligation to discover the material and failed to do so. It may be that, having regard to that matter, the respondent would not resist its reception and, indeed, even perhaps the reopening of the matter in the intermediate Court of Appeal. That is a matter, of course, for the respondent, but at least the respondent now has an opportunity to adopt an attitude in relation to that matter.

I agree that the matter should be adjourned.

KIRBY J: The order of the Court is that the application for special leave is adjourned. The costs of the proceedings before the Court today are reserved.

The Court will now adjourn.

AT 4.12 PM THE MATTER WAS ADJOURNED