Suvaal v Cessnock City Council S294/2001 [2002] HCATrans 496 (11 October 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S294 of 2001

B e t w e e n -

ANTHONY PETER SUVAAL

Applicant

and

CESSNOCK CITY COUNCIL

Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 OCTOBER 2002, AT 10.12 AM

Copyright in the High Court of Australia

MR G. O'L. REYNOLDS, SC: May it please the Court, I appear with my learned friend, MR D.R. CONTI, for the applicant. (instructed by McClellands)

MR D.F. ROFE, QC: If your Honours please, I appear with my learned friend, MR M.J. LAWLER, for the respondent. (instructed by Moray and Agnew)

GAUDRON J: Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, in this case the Court of Appeal overturned a finding of causation made by the Master in favour of the plaintiff. That issue of causation involved a focus upon the precise time when the bicycle stem broke. The bicycle stem is the portion of the bike located just below the handlebars. Relevantly, there were two hypotheses in play on this issue of causation.

The first hypothesis, which I will call the "pothole hypothesis", was that the stem broke as the result of a final overload when the plaintiff hit potholes located off to the side of the road.

KIRBY J: No. The first hypothesis was the "mysterious car hypothesis", which was rejected.

MR REYNOLDS: Which was rejected. So, relevantly, your Honour is quite right.

KIRBY J: That is the second hypothesis.

MR REYNOLDS: There were two, as I think I said, in play. They were in play after the rejection of that first hypothesis. On that hypothesis, that first hypothesis, the council would be liable in negligence. Now, the second hypothesis, which I will call the "roadway hypothesis", was that the stem broke as the result of a final overload caused by normal riding on the roadway, that is on the tar. I should explain, before I go any further, perhaps one surprising aspect of this case. That is that on that second hypothesis it was agreed that the council was not liable. So you have a somewhat unusual case, that is the council is not sued in respect of any problem on the tar, on the roadway, but rather in respect of maintenance of potholes which are just off to the side of the road. Now, just repeating on the "pothole hypothesis", the plaintiff wins. On the "roadway hypothesis" the plaintiff loses. We are all agreed about that.

Now, the Master concluded on the balance of probability that the "pothole hypothesis" was more likely, and her finding to that effect is contained in the application book at page 141, relevantly at about line 16, where she states - - -

KIRBY J: You just clear up one thing. There is a dispute between you - a vigorous dispute - on the written papers about the loss of concentration. It is said by the respondent that the Master found - that this was the Master's own invention. You assert that this was said by your client. Is that correct?

MR REYNOLDS: Your Honour, I have to deal with loss of concentration. I will deal with it in the last segment of my submissions, with your Honour's leave.

KIRBY J: All right. Deal with that when you get to it.

MR REYNOLDS: Now, Your Honours see there the finding that:

it was more probable than not that these overloads occurred when the plaintiff's bicycle hit the potholes -

plural -

and the rough edge of the western side of the road.

Now, it was that finding which the Court of Appeal overturned on appeal. The leading judgment in the Court of Appeal was given by Justice Giles, with whom the other two judges agreed. If I can take your Honours to page 195 of the application book, your Honours will see there that the two hypotheses are referred to at the top of the page. At line 10, Justice Giles notes:

the circumstances appearing in evidence do not raise a more probable inference in favour of -

either hypothesis. At lines 13 to 14, he says the evidence does:

no more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture.

Now, his Honour came to that conclusion after reviewing the evidence and findings made by the Master. In my submission, there are two primary problems with this conclusion which Justice Giles reached, that the two hypotheses were "of equal degrees of probability".

I submit the first difficulty arises from Justice Giles' review of the expert evidence. If I can take your Honours to page 193 of the application book to the paragraph numbered 12 your Honours will see that Justice Giles there reviews the expert evidence. Now, I will not read the whole of that paragraph, but it is clear - and I will come to this in a moment - that Justice Giles is there saying that the expert evidence was equally consistent with both of the two hypotheses I have mentioned. Your Honours will see at lines 24 to 28, Justice Giles concludes as follows. He says:

Dr Thompson's evidence -

he was one of the experts -

however, did not rise above consistency, and could not do so -

I underline the word "could" -

The Master accepted the evidence of Dr Thompson and Mr Robinson. In my view this included acceptance that the final overload fracture could have been caused by the loads arising from normal riding on the roadway.

Now, your Honours will notice a couple of things from that portion that I have just read. The first is that Justice Giles is stating that Dr Thompson's evidence could not "rise above consistency" with both hypotheses. Secondly, Justice Giles notes, and we say correctly, that "the Master accepted the evidence of Dr Thompson". Now, in my submission, that assessment by Justice Giles of Dr Thompson's evidence was clearly incorrect for this reason: we submit that Dr Thompson, in his evidence, unequivocally indicated that what I have called the "potholes hypothesis" was in his opinion more probable than not.

Now, to make good that submission I have to take your Honours to a portion of the transcript. The Clerk of the Court has the transcript evidence of Dr Thompson, the whole of it, which I have given to my friends. Now, before I take your Honours to the relevant portion of the cross-examination, can I just explain briefly the context of the transcript that I am about to take you to. The context of the cross-examination is that my learned friend, Mr Rofe, on behalf of the council, is putting to this witness both what I have called the "roadway hypothesis" and also the "potholes hypothesis" and he is asking him to agree that he cannot say that the "potholes hypothesis" is more probable than not. Now, the first critical question and answer is located at page 289 - I am using the numbers at the bottom of the page - at lines 25 to - - -

GAUDRON J: Wait a moment. I do not think I even go to page 289.

McHUGH J: No, neither do I.

KIRBY J: You are referring to the small letters at the foot of the page.

MR REYNOLDS: The small letters at the bottom.

GAUDRON J: I still do not go - - -

McHUGH J: I still do not either.

GAUDRON J: I cut out at 296 in little print, and 298 - 289?

MR REYNOLDS: Page 289 is the number I mentioned.

GAUDRON J: Thank you.

McHUGH J: Page 289?

MR REYNOLDS: Yes, at lines 25 to 32. Mr Rofe says this, in cross-examination:

Q. Does your evidence really amount to this - and I am not being critical -

do your Honours have the - - -

McHUGH J: Well, my page numbers are cut off.

KIRBY J: No, it is in the middle of the page.

McHUGH J: Page 289 in the middle, is it?

MR REYNOLDS: In the middle at the bottom. Line 25:

Q. Does your evidence really amount to this - and I am not being critical. If you are thinking in terms of what is more probable than not - not what was certain or what is possible, but what is more probable than not - you cannot say on that basis whether or not the two potholes which you have assumed the cycle went into precipitated the sub-critical fractures and the overload fracture?

A. I can't say for certain.

I will skip the next question and answer -

Q. I am putting to you - and I hope I am putting it as fairly as I can - that really on the material that you have and the tests you have done and assumptions you have made as to what happened, you cannot say one way or the other that it is more probable than not that the sub-critical fracture was caused at the time of the assumed going into the pothole?

A. I can say it is more probable than not -

and he then gives his reasons. The third critical answer is at page 286, where your Honours will see - - -

KIRBY J: What are the qualifications of this witness?

McHUGH J: A metallurgist, is he not?

MR REYNOLDS: A metallurgist. At line 39, he is talking about the two subcritical fractures and at the bottom of the page he says:

A. I think it is more probable than those two single overloads were produced at the time of the incident.

In other words, we say this expert plumps on the balance of probability for the "potholes hypothesis", that is that the three overloads were caused by the potholes, and we submit that he does that with abundant clarity. Now, as Justice Giles notes at page 193 of the application book, line 25:

The Master accepted the evidence of Dr Thompson -

in my submission, that expert evidence of Dr Thompson took this issue beyond a mere matter of conjecture and enabled the Master to make the finding which he did at page 141, to which I have taken your Honours.

KIRBY J: Does not Justice Giles mean there by saying, "however, did not rise above consistency" the expert was not there. He cannot say exactly what caused the snap but what he is effectively saying is it is consistent and "in my view on the assumptions it is probable".

MR REYNOLDS: Justice Giles, I submit, is saying, "Look, the evidence here is 50:50. There is no evidence that one hypothesis was more probable than the other. Here we have an expert giving his opinion that one hypothesis was more probable than the other." I submit he does that, we say, very, very clearly. That is the first problem we say arises, and that is as a result of Justice Giles' review of the expert evidence.

The second matter that I wish to raise relates to some evidence given by the plaintiff. For the Court to determine whether the collapse of this bicycle stem was due to hitting potholes, it would obviously be important to know whether the rider of the bicycle perceived that there was a loss of steering at the time that he hit the potholes. Now, at page 76 of the application book your Honours will see that at lines 37 and following, the Master states:

I accept the plaintiff's account that he caused his bicycle to go into potholes -

and at line 41, she notes:

he knows that he hit potholes.

And then she says:

The handlebars of his bicycle turned anti-clockwise and at that point -

I underline those words -

he lost control of the steering.

We submit that that amounts to an acceptance by the Master of the plaintiff's evidence, that he lost control of the steering when he hit the potholes, and we submit that that supports the statement made further up the page at about line 26:

that the preponderance of credible evidence establishes on the balance of probabilities that the plaintiff hit potholes which caused a change in the direction of the steering of the plaintiff's bicycle.

Now, that finding as to when the plaintiff perceived the loss of steering is obviously relevant because it indicates that there was loss of steering when he hit the potholes, not loss of steering when he was driving along the roadway.

McHUGH J: Now, you have to face up with the critical question. What is special about this case? What distinguishes it from a considerable number of cases that have been coming up to this Court in recent times, in which it was arguable that an intermediate court of appeal made factual errors?

MR REYNOLDS: Your Honour, as your Honour knows all I can do is implead the section portion of section 35A I think it is, of the Judiciary Act, which talks about injustice or the administration of justice.

KIRBY J: Are there great injuries suffered by the plaintiff, and the fact - - -

MR REYNOLDS: He is a quadriplegic.

KIRBY J: Is that factor plus the great importance of the matter to the plaintiff and the fact that a verdict has been taken away by the intermediate court, relevant to the determination of the injustice that this Court is attentive to?

MR REYNOLDS: Your Honours deal with these cases - - -

KIRBY J: Or are we just looking at the matter and sort of "dry as dust" terms?

MR REYNOLDS: Your Honour, we submit that is a matter your Honours should take into account.

KIRBY J: It makes a big difference to the plaintiff.

MR REYNOLDS: It does.

KIRBY J: "We won the case". "We lost a case".

MR REYNOLDS: The consequences of the Court of Appeal's decision are tragic for him. It is virtually life or death for him, this appeal, if your Honours were to grant leave.

KIRBY J: A somewhat discouraging thought is that you hand us a tiny part of the transcript, and we would effectively become the third level of fact-finding.

MR REYNOLDS: I submit not. I submit that your Honours would be looking at the question of whether it was open to the Court of Appeal to overturn the finding of facts.

GAUDRON J: The issues really are, are they not, these: one, whether there was sufficient evidence for the Master to reach the decision she did?

MR REYNOLDS: I agree with that.

GAUDRON J: If there was sufficient evidence, then the question is fairly simple, "By what right did the" - well, Justice Giles went wrong if there was sufficient evidence because, in effect, he was saying that there was not.

MR REYNOLDS: Exactly. He said it did not "arise above consistency" and we say once you get to 50:50 we have only got to point to a little bit of evidence - - -

GAUDRON J: It is really a very short point.

MR REYNOLDS: It is a very short appeal.

KIRBY J: But we had a recent case of Fox, and the net result is that we end up going through all the facts for ourselves.

MR REYNOLDS: Your Honour, I cannot eliminate - - -

McHUGH J: We can only deal with about 60 or 70 cases a year, probably even less now because of the immigration original jurisdiction and special leave applications. We have to have some sort of priority. The fact is we just cannot be taking on every factual error case. We have taken on about four or five recently I think, where the Court of Appeal has set aside judge's verdicts.

MR REYNOLDS: Your Honour, at the risk of sounding impertinent, may I say this. The Judiciary Act does talk about miscarriage of justice, or the administration of justice. It may be that your Honours, in dealing with cases under that rubric, have to bring in special procedures to deal with these cases that really only do depend on the facts. It may that with cases that are in this category that the matter has to be dealt with on written submissions except for a very small time allocated to argument. I submit with great respect that given that that is the jurisdictional font for this Court, your Honours need to look at both of those two areas for appeal and with respect - - -

KIRBY J: It is a jurisdiction for special leave. You have to get through some. You have to show that it is something special.

MR REYNOLDS: Your Honour, I submit that where I have shown a case of this kind, which is a clearly wrong decision, that I have established special circumstances or, putting it another way, one does not read up the words "administration of justice" by inserting the word "special" in them. If there is a serious miscarriage then that means, subject to discretion, that your Honours may grant leave.

KIRBY J: I suppose the other consideration is that if the Court of Appeal errs in intervening in this case it might do so in other cases where the parties either cannot afford to or do not bring the matter to this Court for review. We have had a number of cases recently where applications like yours have been made to us, and some of them received special leave.

MR REYNOLDS: All I can say is repeat what I said to your Honour, Justice McHugh. I appreciate obviously the Court's difficulty, but the United States Supreme Court has had to bring in particular procedures to deal with a volume of their litigation. It may be, I respectfully submit, that this Court has to look at a similar streaming of appeals that in cases like this there is not a full right of hearing, there is only a very limited right. If an appellant cannot establish his case within that time then it means that he loses.

GAUDRON J: How much time would you take if you were granted leave? It should not taken more than half an hour, should it?

MR REYNOLDS: Your Honour, I would hope not.

KIRBY J: That is not what Fox v Percy took. It took the best part of a day because we had to face the respondent's argument that the only way to understand the Court of Appeal's response was to go into the detail of the facts. How long did this trial last?

MR REYNOLDS: Twenty-five days.

KIRBY J: And there was not dispute on damage.

MR REYNOLDS: No.

KIRBY J: Damage was agreed. So a lot of that would be on the alternative hypothesis of the mystery car, would it not?

MR REYNOLDS: Some of it, but a lot of it is on the issues of negligence, which do not arise here.

GAUDRON J: I take it there are outstanding grounds of appeal that were not determined by the Court of Appeal.

MR REYNOLDS: There are. If Your Honours were to grant leave and allow the appeal, all that would happen is that the matter would effectively be remitted to the Court of Appeal for determination of the other issues in the case. Even if my client wins the appeal that does not necessarily mean that - - -

GAUDRON J: The length of the appeal would depend really whether - if leave were granted, the respondent would seek to raise points by way of contention to justify the result.

MR REYNOLDS: Again, perhaps my learned friend can indicate what they may be and your Honours can make an assessment of how long that would take.

KIRBY J: We could deal with that. If we do not want to deal with those, we can just remit them to the Court of Appeal.

MR REYNOLDS: You could.

McHUGH J: That is what we would do.

MR REYNOLDS: Your Honours, I was not proposing to say much more. I see my time is about to expire. It may be convenient if I conclude my submissions at that point.

GAUDRON J: Thank you, Mr Reynolds. Yes, Mr Rofe.

MR ROFE: If your Honours please. Firstly, your Honours we would submit that there is no special point about this, assuming that there was an error - - -

KIRBY J: It is pretty special to the plaintiff. Is that not a relevant matter? We have not forgotten our duty to justice.

MR ROFE: I appreciate that, your Honour. Undoubtedly, many plaintiffs and many defendants are the recipients of perhaps erroneous decisions of the Court of Appeal or lower courts which would be important to them. They cannot, with respect, really be - - -

KIRBY J: I am just saying that that can be a special matter, I think, in a particular case. There is no doubt, depending on the outcome of the applications now before us this a very important case for both parties.

MR ROFE: Yes.

KIRBY J: A lot of money turns on it.

MR ROFE: Yes.

KIRBY J: But in human terms it is very special to the plaintiff.

MR ROFE: We would, nevertheless, say - and perhaps I can remind your Honours recently his Honour Justice McHugh reminded us of the profession of what is really required for a special leave case, in SDN Children's Services Inc v Hughes and Anor, 14 May 2002. Your Honours should have a copy of that. We would rely, amongst other things, on page 4, the third point that his Honour Justice McHugh makes about special leave applications. I will not read that but that, we would submit, is a timely reminder to this profession of our responsibility in special leave applications.

Going, your Honours, to what might be called the "merit" matter. It is perfectly correct to summarise by saying that there were two hypotheses: what might be called the "roadway hypothesis" and the "pothole hypothesis". But in order to, in our respectful submission, appreciate that there was nothing which permitted the Master to prefer one to the other, you really do need to look at the evidence in toto of Dr Thompson, whom it was accepted by the Master, and also Mr Robinson, another metallurgist who was called by the nominal defendant, and whose evidence was accepted.

KIRBY J: Why was it not open to the Master, on that passage that was read to us from page 289 of the transcript, to say that on that evidence Dr Thompson did say that it was more probable than not that the hypothesis being propounded by the plaintiff was established? He was an expert. He had relevant qualifications.

MR ROFE: As a result of the incident. The incident, your Honour, can be either the pothole or the roadway. You will appreciate this was a bike going along at 25 mph, which is 40 kph, moving at a rate of 11 metres per second. It is a bike which has been weakened because of the action of the applicant in putting the handlebars up to a higher level than was maximum. We know that there was a 50 per cent fatigue situation to begin with, and then we know there were two, what was called "improvements" which is another form of fatigue, accounting for another 25 per cent penetration and, finally, the overall fracture which accounted for the 25 per cent. The context of the cross-examination on some assumptions - because the respondent did not accept that the applicant went into a pothole. But on that assumption, what we were trying - - -

KIRBY J: Which the Master appears to have accepted. So the Master sees the witness. The witness says - and the Master accepts the witness. The Master accepts the hypothesis. The expert applies to the hypothesis. On the hypothesis said, "more probable than not". The Master accepts this and the Court of Appeal intervenes and changes it.

MR ROFE: Yes. With respect, your Honour, the context has to be looked at. What was sought to be obtained from this expert was could he put a timeframe on times relative to the two subcritical fractures which followed the original fatigue fracture.

GAUDRON J: But is it not really a question of when the handlebars turned anti-clockwise? Is it not as simple as that?

MR ROFE: We would submit, your Honour, there is no evidence to suggest that they would not have other than done that - - -

GAUDRON J: The evidence of the plaintiff, as recorded at page 76, seems to be hit the potholes, then the handlebars turned anti-clockwise and he went straight off on to the other side of the road.

MR ROFE: Yes.

GAUDRON J: Now, the handlebars would only have turned anti-clockwise when the metal broke, and they would not have turned anti-clockwise before it broke. That is his evidence.

MR ROFE: But the issue is when did it break? On the roadway?

GAUDRON J: No. That is where it broke. There are two questions: when and where. It broke when? You can assume, can you not, that it broke when the handlebars, or just immediately prior to the handlebars turning anti-clockwise.

MR ROFE: Yes.

GAUDRON J: That is when.

MR ROFE: That is the when.

GAUDRON J: And his evidence was that it did that after the bicycle bounced two or three times in the potholes. That is where I am reading at 76. That then answers where. Now, if the plaintiff is accepted and the evidence of the experts is consistent with that, and that seems to have been the case. The Master accepted the plaintiff on that. Evidence of the experts is consistent. Why was there not sufficient evidence to support the verdict?

MR ROFE: Your Honour, one has to bear in mind this plaintiff - this applicant - set out to tell a very, very false story.

GAUDRON J: You cannot say that. He told a story which was not accepted. The fact that it was not accepted does not prove it was false. We all know that logical fallacy.

MR ROFE: Your Honour, his contention, which he would not in any way compromise was that he only diverged towards the edge of the road because he was hit - - -

KIRBY J: But that is anterior to the problem we have before us. He has lost that point. Let us concentrate on what - - -

GAUDRON J: And these potholes that he says he hit were on the left-hand side of the road.

MR ROFE: Yes.

GAUDRON J: Where you would expect a cyclist to be riding his bike.

MR ROFE: Yes.

GAUDRON J: He ends up on the other side with, there being no doubt, the head stem broke.

MR ROFE: Your Honour, he was a very experienced cyclist who travelled - trained on this road every day for 15 to 18 years. He knew every pothole. He deliberately adopted - - -

KIRBY J: Good advocacy but it is irrelevant. We are concentrating on there is a pothole. There is a swing of the handlebars. It all happened within instants. The question is whether the pothole caused the snap.

GAUDRON J: No, the question is, I am sorry, whether the Master was entitled to so find.

KIRBY J: That is the ultimate legal question - - -

GAUDRON J: It is the only issue.

KIRBY J: - - - whether the Court of Appeal was authorised to intervene in the Master's decision.

MR ROFE: We would submit he had no support for going into the pothole except a statement by one of a number of witnesses, a Senior Constable Barber. His Honour Justice Giles dealt with that, but you would not put a great deal of weight on that because of the circumstance in which it was made. All the other people to whom he reported, he made no mention of going into potholes. We say in view of the fact that the going into potholes was very much part and parcel of the rejected car, that the Master should have sought corroboration for his evidence in that regard.

KIRBY J: Corroboration has nothing to do with it, Mr Rofe. What do you say about the line of authority that Justice McHugh has been totally consistent with year after year about the intervention of the intermediate appellant courts in fact-finding by trial judges? Here the Master had advantages. She saw the applicant. She accepted him. Now, they are intervened. What is their authority?

MR ROFE: Your Honour, I am aware of the authorities - - -

KIRBY J: Over and over again Justice McHugh - - -

MR ROFE: - - - but one has to look at the particular circumstances of every intervention. We would say with respect that what his Honour, who no doubt had the benefit of reading the whole of the transcript of Dr Thompson and Mr Robinson, was able to divine was that the evidence given by Dr Thompson did not rise above consistency. Now, your Honours do not have that advantage - I am not being critical of that.

KIRBY J: Not yet.

MR ROFE: Not yet, no that is true enough.

KIRBY J: The important point is, it is not for the Court of Appeal to just substitute its view because it thinks it more probable. I mean it may be that your case is a more probable case. They have to be authorised to disturb the decision. They have to show appellate error.

MR ROFE: With respect, Justice Giles did indicate at least two matters where the Master rationalised - having rejected the car hypothesis, she then had to explain how he got into the pothole area, because he did hug 2 feet in, where it was safe. So she said it must have been, or was, a loss of concentration. With respect, there is no evidentiary foundation for that. We would say that was an error on her part, which the Court of Appeal was entitled to cure.

KIRBY J: Losses of concentration happen all the time. They even happen on the Bench.

MR ROFE: Yes, particularly in the afternoon.

McHUGH J: Justice Kirby is speaking for himself, of course.

MR ROFE: Be that as it may, she had to find some reason why he moved from his safe position to the pothole area, having removed the car. We say, with respect, it was not good enough simply to say loss of concentration. He was training. He was doing a speed trial at that particular section. So it is not the time you would expect him to lose concentration. It is improbable that he, with his skills and experience, would have lost concentration. Nevertheless, that was the finding and it was a very important finding, but, in our submission, it was an erroneous finding. The Court of Appeal was entitled, in our submission, to correct that.

GAUDRON J: But it corrected it on the basis essentially that there was not evidence to support the Master's decision.

MR ROFE: Yes.

GAUDRON J: That prima facie does not seem to be correct, does it? There was evidence. There might have been errors in the Master's reasoning process. They would be matters you could take up appropriately in the Court of Appeal if leave were granted, the appeal succeeded and the matter remitted. But the simple question whether there was sufficient evidence - - -

KIRBY J: The gateway they propounded seems very strongly arguably not available to them. There may be other gateways in your argument. You might be able to say, "Well, when you look at all of it, it just does not hang together and notwithstanding the advantages that the Master had that the assessment has been incorrect, looking at it all." But the purported key that unlocked the door of appellate intervention seems arguably incorrect.

MR ROFE: Your Honour, I cannot take it any further except to go back to the point that I made to start, with respect, that this is not a special leave case, notwithstanding the difficulties it creates for the plaintiff.

KIRBY J: How long do you say it would take if it came up on this limited issue before the Court?

MR ROFE: Your Honour, I would say it would take certainly a day.

KIRBY J: We must be lapsing in the figure of our interventions. It would take a day?

GAUDRON J: I cannot think that you could find that much to say. Even assuming the whole day was given to you.

KIRBY J: I do not know about that.

McHUGH J: I do not think her Honour appeared against you, Mr Rofe. I did.

KIRBY J: I have known Mr Rofe too long to affirm that proposition.

MR ROFE: Your Honour, I think by the time you look particularly the expert evidence and the plaintiff's evidence, I would have thought with respect a day would not be excessive. This Court can no doubt limit it to less than a day. I think those are the matters - - -

GAUDRON J: Thank you, Mr Rofe. There will be a grant of special leave in this matter.

MR REYNOLDS: If the Court pleases.

GAUDRON J: The matter will be listed for not more than half a day. If counsel cannot agree on the time to be allocated between them, the Court will fix such time limits for you.

AT 10.48 AM THE MATTER WAS CONCLUDED