Oates v Attorney-General for the Commonwealth of Australia & Anor S155/2002 [2002] HCATrans 561 (5 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S155 of 2002

B e t w e e n -

ANTONY GORDON OATES

Applicant

and

THE ATTORNEY GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

Application for special leave to appeal

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 5 NOVEMBER 2002, AT 11.25 AM

Copyright in the High Court of Australia

MR J.E. GRIFFITHS, SC: If the Court pleases, I appear with my learned friend, MS S.E. PRITCHARD. (instructed by Michell Sillar)

MR A. ROBERTSON, SC: May it please the Court, I appear for the respondents with my learned friend, MR S.B. LLOYD. (instructed by the Australian Government Solicitor)

GAUDRON J: Mr Griffiths, is there any life in this matter, as it were? I mean, there is a new Treaty, I understand.

MR GRIFFITHS: There is a new Treaty that has superseded the Treaty in respect of which the request was made.

GAUDRON J: Is the request still on foot?

MR GRIFFITHS: The request is still on foot.

KIRBY J: Can it be made again under the new Treaty? Could it be in the event that you were successful in this application and in an appeal that followed?

MR GRIFFITHS: It possibly could be, your Honour, but it would then raise another set of issues because of the different way in which the new Treaty identifies extraditable offences. But in so far as the applicant is concerned and the respondent, it has been common ground - and my learned friend will correct me - that the request which is still on foot is a request which is made in respect of, of course, the earlier Treaty, not the current Treaty.

GAUDRON J: Well, we need not trouble you further at this stage, Mr Griffiths. Yes, Mr Robertson.

MR ROBERTSON: If your Honours please. The point raised by your Honours in relation to the Treaty and whether or not it would be possible for the Attorney-General to make a further request goes directly to one of the three points in relation to which we say special leave should be refused. It is the point about the fragmentation of the criminal process.

KIRBY J: Well, this has been shattered. It is a bit late to be talking about non-fragmentation.

MR ROBERTSON: No, your Honour, it is not because the reason that it is of significance is, of course, that time limits in relation to what the Polish courts are looking at are important, that is, the longer the process can be, as it were, agitated in the Australian courts - and this would mean in a sense for a second time by this Court, although in relation to different issues - then the greater the prospect that Mr Oates would not be able to be returned to Australia.

KIRBY J: I understand that, but we live in a rule of law country - - -

MR ROBERTSON: Of course, your Honour.

KIRBY J: - - - and here is an area of the law which, on that theory, would never be intruded in because to intrude in it would be to fragment the criminal process and here is a litigant who apparently has the funds to elucidate this area of the law. There are still treaties of the kind that he relies on and he is affected by an enumeration treaty and the issue is at least arguably an important question and - - -

GAUDRON J: Well, there is a more fundamental question as to the Attorney-General's powers, which would apply in every case.

MR ROBERTSON: Yes, but what I am addressing is - and if I can take your Honours to the applicant's materials, page 124. This is a matter that was addressed by his Honour Justice Lindgren and, of course, by the majority in the Full Court, so that your Honours would be looking at a question of a discretion to withhold relief. The significant dates are, if your Honours look at page 124:

7 July 1996 Commonwealth Attorney-General signed a request -

and then if your Honours turn to page 129, at the top of the page:

13 December 2000 Commencement of present proceedings.

So that is a period of some 41/2 years. Of significance also, if your Honours turn to page 127, the fifth entry:

23 June 1999 Decision of the High Court in Attorney-General v Oates [1999] HCA 35; (1999) 198 CLR 162 -

and, again, these proceedings commenced some year and a half after the decision of this Court and no reason has been advanced why the validity of the request - your Honours may recall that that case concerned the nature of the consent under the Corporations Law to the commencement of proceedings. No reason has been advanced why the issues presently sought to be agitated could not have been agitated in those proceedings, which were commenced in the Federal Court, went to the Full Court of the Federal Court and thereafter to this Court, leading to the judgment that I have just referred to.

KIRBY J: It may be nobody saw the point.

MR ROBERTSON: Maybe, your Honour, but as Justice Lindgren referred to, if your Honours look at page 8 of the application book, which strongly suggests, if it is not a finding, strongly suggests that what your Honour Justice Kirby put to me is not right.

KIRBY J: Which paragraph?

MR ROBERTSON: Paragraph 17, your Honour:

Mr Oates' case is based in large part on a Memorandum of Advice dated 23 December 1996 -

and then his Honour sets out what the advice was. Then on page 26 of the same book, paragraph 74, line 4:

The advice and the four Polish legal opinions have been placed before the Polish courts.

So the legal representatives of Mr Oates had the advice in December 1996, or thereabouts, put it before the Polish courts, but did not take the point which they now say goes to the validity of the request in the proceedings commenced in the Federal Court culminating in the decision of this Court in 1999. His Honour Justice Lindgren said - - -

KIRBY J: But that seems to be dealing with the principle of reciprocity in the memo concerning reciprocity of Australian extraditions to Poland for which it was seeking extradition of the applicant from Poland to Australia, but is there any indication the memorandum raised the point of the interpretation of both the Extradition Act and of the Treaty in this case as applicable to the offence of which he was being extradited?

MR ROBERTSON: It went to the question of double criminality which lies at the heart of what - Justice Lindgren said lies at the heart of this case.

GAUDRON J: But did it mention the Attorney-General's power? What this case is about at bottom is the Attorney-General's power, is it not?

MR ROBERTSON: It is, your Honours, and I will make two submissions about that in a moment, if I may. I just wanted to finish this point, that what your Honours are looking at is, if your Honours look at page 52, paragraph 159, a discretionary decision of Justice Lindgren:

In my opinion, the delay in this case is disentitling. The institution of the other proceedings does not satisfactorily Mr Oates' delay in commencing this proceeding until just before the hearing before the Gdansk Court of Appeals on 16 February 2000. Mr Oates submits (incorrect in my view) that the Advice supports the view that the Request was invalidly made. On that basis, he must claim to have been armed since 23 December 1996 with a weapon with which to attack the making of the Request.

KIRBY J: That would have much greater power - and I understand the point - if the power of the Attorney-General were indisputable, then discretionary decisions are really disturbed. But here what is being contested is the foundation on which the application is made.

MR ROBERTSON: Well, it is a legal challenge to an extradition request on a particular footing where - - -

KIRBY J: It is not an unimportant point, not only for our own municipal law, but for international law.

MR ROBERTSON: I know, your Honour, but what he goes on to say is that Mr Oates - this is the same paragraph:

has chosen to attack the bringing of the criminal charges against him in this Court and the extradition procedure in the Polish courts, while reserving until the end of the day his present attack on the making of the Request.

It is not a fresh point in the sense that the suggestion was made - if your Honours go back a page, page 51, paragraph 156, the suggestion is made in February 1997. If your Honours look at paragraph 156, line 4:

They wrote -

that is the solicitors for Mr Oates -

on behalf of their client to the Attorney on 6 February 1997 asking that the Request be withdrawn.

That is on the basis of the advice.

KIRBY J: Did that letter rely on the matters that they now wish to agitate in this Court - precisely the matters that they wish to rely on?

MR ROBERTSON: Your Honour, I do not know precisely but plainly they said - - -

KIRBY J: That letter was written to your client.

MR ROBERTSON: - - - "Here is the advice. We ask you to withdraw the request." The answer was, "No, we will leave it to the Polish courts." And it was not until 31/2 years later that proceedings were commenced. It is not an idle point, your Honours, because, as I have submitted, the question of time limitations in Poland and whether or not the time will run out under Polish limitation laws is a matter that has for a long time been of significance. I will not take your Honours to it, but it appears from the applicant's materials, page 132 point 8. If I can just finish this point: Justice Conti, with respect, at page 129 of the book - - -

KIRBY J: Can I just ask on that last point, that the time issue arises under the old Treaty, the 1934 Treaty?

MR ROBERTSON: It arises because, as is adverted to on that page, under Polish law the question of whether an offence is still punishable so that when the Polish courts are looking at the question of criminality under Polish laws, one of the integers is whether or not the limitation period, or the prosecution of the offence, under Polish law has expired.

GAUDRON J: That document does not say very much at all.

MR ROBERTSON: Well, it says that the question is whether it will be - - -

GAUDRON J: What is that document?

MR ROBERTSON: That is the briefing paper to the Attorney-General in relation to which - - -

GAUDRON J: Is there a statute of limitations in respect of criminal matters under Polish law?

MR ROBERTSON: As we understand it, yes, your Honour.

GAUDRON J: What is it?

MR ROBERTSON: It is 15 years, so that the period, as we understand it - and it is one of the judgments of the Polish courts which are not before your Honour - the period would expire in September next year.

KIRBY J: Yes. I have a note that the alleged offence was between August 1988 and May 1989.

MR ROBERTSON: Yes, your Honour.

KIRBY J: It would be somewhere between that time.

MR ROBERTSON: So that that tallies with what I just put. Could I complete this point, your Honours, by - - -

GAUDRON J: Well, is the matter proceeding in Poland?

MR ROBERTSON: Yes, your Honour. Could I finish this point by - perhaps it is not of great significance, but on page 129 where Justice Conti, your Honours will recall, dissented on this discretionary extension - it was the delay point - and I only wish to advert to this, that at lines 10 to 15 his Honour said, we would respectfully submit quite wrongly:

Additionally, I do not think that the Respondents' informal raising of an Anshun estoppel during the course of argument appeal . . . should be entertained.

But, of course, it was not either informal or raised in the course of argument, which is part of Justice Lindgren's judgment and it was part of the respondents' written submissions and, as your Honours will have seen from the paragraph that I took your Honours to in Justice Lindgren's judgment, his Honour was of the view that the legal proceedings were brought in disentitling circumstances, that is:

reserving until the end of the day his present attack on the making of the Request.

That is a finding of Justice Lindgren.

Can I then go, your Honours, to two points of substance while emphasising, with respect, that whatever the interest of the points of law if this case had been brought promptly, we do submit that this is not a suitable vehicle for this Court to entertain the matter, in a sense, for a second time. There are two points we would wish to make. One is in relation to what it is, leaving aside all questions of the prerogative and assuming all those in my learned friend's favour - - -

KIRBY J: They are not unimportant questions.

MR ROBERTSON: No, but they do not arise unless he can succeed in relation to two points, which I am now going to, your Honours. First of all, in paragraph 53 on page 19, Justice Lindgren identifies what Mr Oates case for a declaration is:

It seems that Mr Oates' case for the declaration mentioned must be that in order to be lawful the Request must, in truth and as a matter of objective fact, engage a Treaty obligation of Poland to surrender Mr Oates to Australia. In my view Australian law does not so require. If it did, considerable practical difficulties would arise.

I will not take your Honours through all the practical difficulties that Justice Lindgren referred to.

KIRBY J: That is quite an interesting and important point.

MR ROBERTSON: But it raises this point, your Honour - and this is really the basis of Justice Conti's dissenting decision - that does the word "reciprocal" - your Honours would have seen that throughout Justice Conti's judgment his Honour refers to the bilateral nature of the Treaty and the reciprocal obligations, but the question is: is there an obligation on the requesting State to duplicate, we would submit, the questions which, on any view, are questions for the foreign court. In other words, if one goes to the Treaty in question - and this is at page 92 of the other book, the applicant's materials.

GAUDRON J: But there may be another issue, may there not? I mean, there may be a question whether there is power to request in relation to offences which are clearly outside the Treaty matters, for example.

MR ROBERTSON: That is a point that I will come to, your Honour, but if I could just answer it this way for the moment: Justice Lindgren accepted that if there were - I think he used the expression "abuse of process" or "fraud on the power" - then that would be a matter that could be address, but, of course, no such allegation or suggestion was made in this case. It was put as no more than this, that, as his Honour said, in truth and as a matter of objective fact, the conduct must fall within Article 3 of the Treaty. Of course, the implication of that is that if that is so in truth and as a matter of objective fact, then it must be a matter for the courts of this country as well to test, as well, of course, the courts of the requested country.

There is no decided case referred to by my learned friends or of which we are aware that shows the requesting country looking at these matters. All the cases that are relied on and are referred to, including the recent decision of the House of Lords that our learned friends refer to, all of those are decisions of the courts of the requested State.

KIRBY J: Yes, but the problem is Article 3 of the old Treaty was:

shall be reciprocally granted for the following crimes or offences -

and they are enumerated and this offence is not within the enumeration. Having adopted that old-fashioned style, his Britannic Majesty on behalf of Australia locked himself in, at least so it is argued, to nominated crimes and this is not one of them.

MR ROBERTSON: Well, that leads me to the last point I wish to make, your Honour, and that is that although it is suggested and submitted by my learned friends that one compares the crimes with the crimes, there is no authority to support the proposition that one looks at the text of a crime and compares it with the text of a crime in Article 3. His Honour Justice Lindgren deals with this at paragraphs 91 to 93, if I can take your Honours to that briefly.

KIRBY J: What is the closest you get in the enumeration to generically the same crime?

MR ROBERTSON: The one that has been referred to throughout is 19, "Fraud by a . . . director" and - I am looking at page 94 of that volume, your Honour. Does your Honour see that page, 19?

KIRBY J: Yes, I have 94.

MR ROBERTSON: Then at the foot page:

Extradition is also to be granted for participation in any of the aforesaid crimes -

but I am making a different point, your Honour, which is this, that, as Justice Lindgren says in paragraph 91 - and I will be as brief as I can because I can see the time:

The Treaty is to be construed against the common understanding that the precise formulations . . . will differ and will change from time to time.

At line 45 on page 32:

attention is directed to the underlying facts, that is, the alleged acts and omissions of the person whose extradition is sought -

and then crucially, we would submit, his Honour then refers to authority which Justice Conti in dissent departs from and does not seem expressly to deal with. But this is the last point I want to make, your Honours, and that is on page 33 - it is the same point as I am presently making - paragraph 93, line 3, therefore:

it would have to be tested by reference to the alleged acts and omissions of Mr Oates.

Does your Honour see that?

KIRBY J: Yes.

MR ROBERTSON: But four or five lines down:

In the present case, Mr Oates has not attempt to show, for the purposes of this proceeding, that according to Australian criminal law his acts and omissions as alleged do not show a prima facie case of fraud -

So that, if I can put it this, even if everything else were accepted as in the applicant's favour and as important questions, in my respectful submission, it is indisputable that attention is directed to the underlying facts and no attempt has been made to show that those acts and omissions do not show a prima facie case. So this is not a suitable vehicle, in my submission, for that reason, as well as for the reason of delay and as well as for the other reason that I have made submissions to your Honours. If the Court pleases.

GAUDRON J: Yes, Mr Griffiths, we would like to hear from you on that last point.

MR GRIFFITHS: The last point which relates to the question whether or not it is sufficient simply to look at the elements of the offence as opposed to descending into the acts or conduct said to underlie the offence, in our respectful - - -

GAUDRON J: No, it is the fact that your side has not attempted to show that there is not a prima facie case of fraud by a company director.

KIRBY J: You see one of the nominated crimes is 19, "Fraud by a . . . director". Now, the suggestion is that that engages the extradition, being one of the nominated crimes, and if you wanted to show that it did not apply in your case, although the verbiage of the Australian crime is slightly different, it is still, it is said, substantially the same and you have not shown that you are not within it.

MR GRIFFITHS: With respect, we would rely upon the joint opinion of Spigelman QC and Williams, as they both then were, which is referred to in Justice Conti's judgment - - -

GAUDRON J: You cannot rely on their opinion. You can rely on their arguments of law.

MR GRIFFITHS: We can rely upon the arguments contained in that opinion - - -

GAUDRON J: Yes.

MR GRIFFITHS: - - - as to why it is that none of the offences with which Mr Oates was charged fit within any of the enumerated crimes in Article 3.

GAUDRON J: Yes, I am sorry, but you cannot - yes.

MR GRIFFITHS: And we would adopt that reasoning in response to the question that your Honour - - -

GAUDRON J: Yes, but that may not be enough to get you the distance. That is what Justice Lindgren was there saying.

MR GRIFFITHS: Which paragraph of Justice Lindgren's judgment was your Honour - - -

GAUDRON J: Paragraph 93, page 33.

MR GRIFFITHS: Thank you, I have that.

KIRBY J: Line 39.

MR GRIFFITHS: Yes, but, in our respectful submission, what is contained in paragraph 33 is predicated on the notion that in determining the validity of the request one does not simply ask the question whether or not, looking at the description of the enumerated offences and comparing it with the offences with which the particular person is charged, the elements correspond. Rather, his Honour is saying one goes below that into the acts or conduct. In our respectful submission, that approach is fundamentally wrong.

GAUDRON J: Well, in your submission, it may be fundamentally wrong. On another view, it may not be fundamentally wrong. If it is not fundamentally wrong, then what has happened is that this Court has been put in a position where it cannot properly deal with the matter because of the absence of that issue. It cannot give full relief because that matter is - - -`

MR GRIFFITHS: But, your Honour, with respect, we would not see that as being a barrier if, in fact, the premise that I have just put to you is correct and - - -

GAUDRON J: Well, if the premise is correct, but you see that is only - I mean, it is an important plank in your argument but it is not all that is involved in this case and if your premise - the important issues might have to be dealt with on the basis that the premise is not correct.

MR GRIFFITHS: Yes, but I can also, just to further the point, your Honour, contrary to my learned friend's submission where he claimed that we are unable to point to any authority to support the premise, if I can use that shorthand expression, in the applicant's supplementary materials provided to the Court yesterday is a decision of the Divisional Court of the High Court in England, the case R v Home Secretary; Ex parte Gilmore [1999] QB 611. Do your Honours have that?

KIRBY J: Yes. What is the point of this case?

MR GRIFFITHS: If your Honours go to page 618 between the letters D and F, in our respectful submission, the approach there stated by Lord Justice Pill is the approach which supports the premise that I have been putting to your Honours, namely that the expedition is simply one involving construction; construction of the statute or, in this case, construction of the Treaty, namely the contents of Article 3. One does not descend into acts or conduct at all. One stays at the higher level of elements of the crime. Indeed, your Honours will see that at about - - -

GAUDRON J: Well, what are the elements of the crime alleged against you, or against your client?

MR GRIFFITHS: If your Honours see at page 2 of the application book, the request is set out and the crimes there are expressed as a considerable level of generality, starting about line 49.

KIRBY J: They look not all that dissimilar generically from "Fraud by a . . . director".

GAUDRON J: Particularly the first one.

KIRBY J: We have to work extradition law and this Treaty in the context of utterly different legal systems and, therefore, you have to give, one would think, the Treaty a relatively broad construction so that it can operate across the bridge of language and culture and legal principles and so on. Now, the word propounded is "Fraud by a . . . director" and the counts include "conspiracy to defraud", "improper use of position as a company director contrary" to provisions of the Code, "failure to act honestly as a company director contrary" to the Code. They look rather similar generically.

GAUDRON J: And he was a director, was he?

MR GRIFFITHS: He was a director, your Honour. If your Honour goes to page 114 of the application book, your Honour sees set out there in italics the essence of the argument as to why none of the offences with which Mr Oates was charged fit within Article 3. The issue that your Honour has put to me specifically in respect of fraud - - -

KIRBY J: So you say conspiracy is a distinct crime?

MR GRIFFITHS: Conspiracy is a distinct crime and, your Honour - - -

KIRBY J: And it is not amongst the nominated crimes?

MR GRIFFITHS: Not amongst the nominated crimes and that was, indeed - - -

KIRBY J: It is a somewhat controversial crime even in English and Australian law.

MR GRIFFITHS: It is, your Honour, but, interestingly, the Gilmore Case that I have just taken your Honours to reached exactly the same conclusion that I am just putting to your Honour, that one draws a distinction between conspiracy and fraud. One sees that, your Honour, I believe, from the headnote.

KIRBY J: Yes. The next one is that it is not actually fraud; it is the:

general offence of failing to act in the best interests of the company - - -

MR GRIFFITHS: That is correct, your Honour, and the element of fraud simply goes to aggravated penalty. It is not an essential element of the offence.

KIRBY J: The third offence is:

improper use of the position of an officer of the corporation in order to gain an advantage for himself or herself or another person -

That sounds relatively close to "Fraud by a . . . director". What was the answer given by the authors to that?

MR GRIFFITHS: Well, effectively (c) is the reasoning, your Honour. Then your Honours see that Justice Conti deals with each of those matters, starting at the bottom of page 114 where he deals with "the offence of conspiracy to defraud", and he reaches his conclusion on page 116 at about line 30, that the first charge is not one which is engaged by the Treaty. He then goes on from about line 37 to deal with the second bundle of charges, namely, "failure to act honestly as a company director" and his Honour adopts the reasoning in the joint opinion that intention to deceive in fraud is not required. Then his Honour goes on and deals with - - -

KIRBY J: Now, Gilmore is a decision of the Divisional Court. Did that go to the Court of Appeal or to the House of Lords?

MR GRIFFITHS: No, it did not, your Honour. In our respectful submission, the issue which my learned friend raises, the last point that he raises, simply does not arise if we are correct in the fundamental proposition that we put as to the approach which ought to be taken - - -

KIRBY J: Well, the question comes down to whether we can answer that question without very much knowledge of the actual alleged offences and what your client did just on the face of the application for extradition and comparing it, side by side, with the Treaty.

MR GRIFFITHS: That is correct, your Honour.

KIRBY J: And you say we can.

MR GRIFFITHS: And we say you can and we say that that is what the Divisional Court - - -

KIRBY J: And Mr Robertson says we cannot and should not.

MR GRIFFITHS: At least I have the Gilmore Case to support me, your Honour, that the issue is one of construction and the issue of construction is one that can be usefully carried out by this Court on the materials that your Honour has just described.

KIRBY J: Yes.

MR GRIFFITHS: Does your Honour wish to hear from me on other points that my learned friend raised?

GAUDRON J: Not on the other points. Mr Robertson, we will hear you in reply on that matter.

MR ROBERTSON: Your Honours, I just wish to say three things. One is, if I could take your Honours back to page 10 of the application book where Justice Lindgren speaks about the learned authors of the advice and halfway through paragraph 23 at the top of page 10, line 6, his Honour says:

They -

that is, the learned authors -

were not called upon to address, and did not address, the question whether the underlying facts alleged against Mr Oates constituted fraud by a director of a company, whether according to Australian or Polish law. Accordingly, they did not refer to the facts charged or otherwise to the alleged acts and omissions of Mr Oates. The Advice records that they were briefed with copies of the charges and the Treaty, but refers to no other document -

and if I could take your Honours to page 78, where the majority advert to this question. Their Honours say at paragraph 31:

Were it relevant, the Anglo-Australian approach to that question -

that is, what does one look at -

was laid down in In re Nielsen. Lord Diplock pointed out . . . it was necessary to look at the conduct of which a person was accused in order to determine whether such conduct fell within the generic description of offences. Here the evidence submitted by Australia to Poland includes an affidavit . . . The facts alleged to constitute the offences are briefly summarized in some fourteen pages of the second of those affidavits. The offences were allegedly committed . . . These affidavits were apparently not available to counsel when they gave their advice on 23 December 1996. At first instance Lindgren J remarked (at 581-582) that Mr Oates did not submit that the facts alleged in that material did not show fraud by him as a director of the two companies named. Nor was such a submission made on the appeal and, indeed, we were not addressed at all on the contents of those affidavits. We are, therefore, relieved of the obligation to descend to any detail whatsoever for our confident opinion, were it relevant, that the conduct of which Mr Oates stands accused constitutes, for the purposes of Art 3 of the Treaty, either fraud as director of a company or participation in such fraud.

KIRBY J: Well, that poses the question and the answer given by the Divisional Court is you just look at it as a matter of interpretation.

MR ROBERTSON: But the fundamental point about the Divisional Court, your Honour - and this goes back to what I earlier put - that is a decision of a requested State about what the Secretary of the Home Department, I think, or the Attorney-General, was doing to give effect to a request that had been made by, I think, the United States. So there is still, as my learned friends wish to call that in aid - it is not a case about a requesting State; it is a case about - - -

KIRBY J: Yes, but the principle they seem to embrace is a principle of sheer legal comparison.

MR ROBERTSON: Well, your Honour, it is not because, as Lord Diplock said In re Nielsen and as is uncontrovertible, we would submit, in terms of the decided cases referred to by Justice Lindgren, including his Honour Justice Deane's decision in this Court in, I think, Riley's Case, one looks at the acts and omissions, the conduct. If one looks at the decision - and your Honours do not have it - of the House of Lords referred to, the Al-Fawwaz Case [2002] 2 WLR, again a case about the requested State, right throughout each of their Lordships refer to conduct, acts and omissions. That is what the case is about and the fundamental flaw here is that, as we have earlier submitted, Mr Oates did not go to that question.

KIRBY J: But the conduct, acts and omissions have ultimately to fit into the categories which are specified in the Treaty, subject to the prerogative-type argument.

MR ROBERTSON: But that is a question that Mr Oates did not ask Justice Lindgren to address and did not ask the Full Court to address and, in my respectful submission, that makes it an unsuitable vehicle for your Honours to address what might otherwise be interesting but, in light of what I have put, would be abstract questions if leave were granted. If your Honours please.

GAUDRON J: We need not trouble you, Mr Griffiths.

MR GRIFFITHS: Thank you, your Honours.

GAUDRON J: There will be a grant of special leave but it seems that the matter is one that should be expedited. Do both parties concur in that approach?

MR GRIFFITHS: Yes, your Honour.

GAUDRON J: It will take one day, but how soon could the appeal books be prepared?

MR GRIFFITHS: We will proceed with all deliberate speed, your Honour.

GAUDRON J: I do not like the sound of that.

KIRBY J: Very vague.

GAUDRON J: Let us have it measured in weeks, or something. Can we have it measured in weeks?

MR GRIFFITHS: We can certainly achieve that within weeks, your Honour.

GAUDRON J: And you would undertake then, I take it, to have the appeal books ready within 21 days?

MR GRIFFITHS: By the end of the month, your Honour, yes, if that suits, or 21 days, whichever - - -

GAUDRON J: Yes. Well, there may be some difficulty with the Registrar settling the index, but that should not prove insuperable, should it? We will note that. We will grant special leave and order that the appeal be heard with expedition.

AT 12.07 PM THE MATTER WAS CONCLUDED