Murphy v State of Victoria and Anor [2014] HCATrans 214 (26 September 2014)

Last Updated: 30 September 2014

[2014] HCATrans 214

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M95 of 2014

B e t w e e n -

ANTHONY MURPHY

Applicant

and

STATE OF VICTORIA

First Respondent

LINKING MELBOURNE AUTHORITY

Second Respondent

Summons for interlocutory relief

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 26 SEPTEMBER 2014, AT 3.00 PM

Copyright in the High Court of Australia

MR R. MERKEL, QC: If your Honour pleases, I appear with my learned friend, MR J.W.K. BURNSIDE, QC, and subject to your Honour’s leave with MS S. GORY. Ms Gory, my junior who had appeared in the matter until now, had omitted to sign the High Court roll – possibly not expecting to be here quite so early. She was admitted to practice in 2005 and signed the Bar roll in October 2013 and I understand with your Honour’s leave she might appear with me. (instructed by Fitzroy Legal Service)

HER HONOUR: Yes. No objection to that, is there?

MR MERKEL: Thank you, your Honour.

MR M.K. MOSHINSKY, QC: If your Honour pleases, I appear with my learned friend, MS K.E. FOLEY for the first respondent. (instructed by Victorian Government Solicitor)

MR N.J. YOUNG, QC: May it please your Honour, I appear with my learned friend, MR R.A. HEATH for the second respondent. (instructed by Clayton Utz Lawyers)

MR M.D. WYLES, QC: If it please your Honour, I seek leave to appear for the East West Construction. Our party will be affected if any..... (instructed by Herbert Smith Freehills)

HER HONOUR: Did you appear before the Court of Appeal?

MR WYLES: Yes, I did, your Honour.

HER HONOUR: No objection to that?

MR MERKEL: No, your Honour.

HER HONOUR: Yes, you have that leave, Mr Wyles. Yes, Mr Merkel. Should I perhaps inquire at the outset whether anyone has any idea of how much time will be required? I have in mind the convenience of the transcript writers.

MR MERKEL: I would expect, your Honour, I think our submissions would go for about an hour. I am not sure but possibly less. I am not sure – we need to traverse the matters almost as if it were on a special leave application given the nature of the hearing and we wanted to take your Honour to the issues that arise.

HER HONOUR: Well, perhaps I can indicate right now - and it might be convenient to do so - this matter will be listed for the hearing of the application of special leave in the special leave list on Friday, 17 October next. There will be a list heard in Sydney but there is no reason why this matter cannot be heard by video link. Alternatively, parties can travel to Sydney if they wish.

MR MERKEL: Thank you for that, your Honour. I think that helps narrow the ambit of the controversy and I will adjust my submissions accordingly, your Honour, if I might.

HER HONOUR: Well, that would be helpful I think because, Mr Merkel, it is not really the occasion to be canvassing the merits of the special leave application.

MR MERKEL: Thank you, your Honour.

HER HONOUR: One could assume for the sake of argument today that there was a point of general importance.

MR MERKEL: Thank you, your Honour. Your Honour, can I, in this context, give your Honour a brief background as to what has occurred to outline why we say that the interests of justice require that short holding injunction which would in the circumstances outlined by your Honour be no longer than until the hearing and determination of the application for special leave on the 17th or further order.

Your Honour, the central underlying grievance that the applicant has is that – and I say this very explicitly without any fault at all on the part of the Court of Appeal who did all that could be expected to bring the matter on, but the effect of the orders made will render his application in a practical sense for the primary relief he seeks nugatory.

HER HONOUR: How is that, Mr Merkel, in circumstances where the applicant, as I understand it, is seeking declaratory relief as well as injunctive relief and other orders and one would assume, I suppose, having read the decision of the Court of Appeal that corrective advertising might be, for example, part of the relief which might be sought were you to succeed? I have not had a great deal of time of course to look at these papers and so correct me if anything I say appears to be wrong, but it appeared to me that the Court of Appeal proceeded on the basis that it was appropriate to assume that you may well succeed ultimately.

MR MERKEL: Your Honour, it went further than that but can I answer your Honour’s question?

HER HONOUR: Yes.

MR MERKEL: The history of the matter I think is fairly important, your Honour. The matter commenced in April with that relief sought and at that time the applicant’s solicitors sought the co-operation of the respondents for an early final hearing in September which would have been prior to contracts being signed. What occurred – and I think it is important for your Honour to appreciate just in brief outline the history of the matter – the invitation was not accepted and the respondents sought to fragment the hearing into a special question hearing based upon whether that State was carrying on business and whether the representations published were in trade and commerce and they put in a limited - - -

HER HONOUR: Was there a decision made that the matter should proceed by way of special question over your opposition?

MR MERKEL: Yes, there was, your Honour, but the point of saying this is that we have been brought to the Court of Appeal and to the shrinking timeframe because of our opposition being unsuccessful, but can I just follow that through? As a result of that, the initial relief that was sought which was as your Honour indicated was going to be of no utility once the project commenced because it would be after the event – it could have no consequence and no practical utility – so in July without any opposition from our opponents, and I should say July is an important date because by July it became clear that a September hearing was not achievable because his Honour the trial judge was still considering pleadings and separate questions, we realised that the original relief would really not have any practical consequence and paragraph B(c) was added by amendment to the statement of claim, which is the critical paragraph for present purposes, which seeks to restrain the project which was not there originally and would have been unnecessary, or may not have been necessary, had the matter come on for trial.

HER HONOUR: Where is that in the papers, Mr Merkel?

MR MERKEL: Would your Honour just excuse me for a minute? The statement of claim is document 2 in the affidavit. There are two, the affidavit filed - - -

HER HONOUR: It is the further amended, I take it.

MR MERKEL: Yes, it is the further amended, your Honour, and your Honour will see at page 12 - - -

HER HONOUR: I now have it. You have added in (c) as the amended addition.

MR MERKEL: Yes, and that became the focal point of the proceeding, and when I say “the focal point” from July because when his Honour then was considering through July and August up to a hearing on 25 and 26 August, as is made clear in my instructor’s affidavit, your Honour, his Honour was concerned to ensure that he received assurances from the State of Victoria that the contract would not be entered into thereby, in effect, rendering his adjudication nugatory. What Ms Fitzgerald’s affidavit outlines in detail, your Honour, is that that became the status quo of this proceeding, the focus entirely on the contract.

So what occurred initially is that when his Honour heard the matter on 25 and 26 August, that is the separate question and I need to explain that briefly to your Honour, but at that stage his Honour said I needed time for judgment and the State assured his Honour that no contracts would be entered into before close of business on 16 September. His Honour handed down reasons on 10 September - - -

HER HONOUR: Yes.

MR MERKEL: - - - and that left until the 16th. Our instructors sought from the State an undertaking on the basis there would be an expedited appeal to extend that date. The State, as it is entitled to do, declined to give that undertaking. As a result of that, I think it was on the 16th, an application was made urgently - and I may be a day or so out on dates, your Honour - to the Court of Appeal. Acting President Nettle and Appeal Justice Beach sat on that day, that was last Wednesday – sorry, last Wednesday week – and their Honours indicated that the court could hear the substantive appeal on Monday and Tuesday of this week, which in fact has occurred, with the parties putting in extensive submissions on the Thursday, Friday and a full and comprehensive hearing occurred on Monday and Tuesday - - -

HER HONOUR: Am I right in this understanding that judgment will be delivered in relation to the substantive appeal at 10.00 am Monday next?

MR MERKEL: No, your Honour.

HER HONOUR: That is not right?

MR MERKEL: No. I need to explain that - - -

HER HONOUR: I am sorry, I am not sure where I got that from.

MR MERKEL: I am not sure where that came from, your Honour.

HER HONOUR: No.

MR MERKEL: No. If I can just complete the chronology, your Honour.

HER HONOUR: Sure.

MR MERKEL: On the 16th the State then undertook that it would not enter into contracts prior to the hearing and determination of the appeal which took us to Tuesday night and when the matter came on – I may be out by a day, but when the matter came on on the Wednesday of this week the State indicated it would not enter into contracts prior to 9.00 am on Monday next. The point of that, your Honour, is that it has been clear that whatever the original relief was that has all been overtaken entirely by paragraph B(c) which has been the focal point and the status quo which would run out at 10.00 am on Monday.

HER HONOUR: Is not the difficult aspect of today’s application, as I understand it, that you want interlocutory injunctive relief in relation to the signing of contracts and in relation to property acquisition, as I understand it, where notices have been sent out and I have indicated the special leave will be heard on 17 October. You are seeking that interlocutory injunctive relief. As I understand it, the State’s position is that if they do not sign the contracts by 1 October, I think it is, they will be exposed to foreign exchange losses of a certain order.

MR MERKEL: No, I think it is – risk.

HER HONOUR: At risk.

MR MERKEL: Your Honour, risk goes both ways, risk could go either way, but can I just say this, your Honour, the Court - - -

HER HONOUR: Sorry, I did not mean exposure. That is right, I did notice it is a risk.

MR MERKEL: A risk. Can I say this, your Honour - but I do need to explain why the interest of the administration of justice requires some special consideration as to what has occurred to the applicant in this matter, but may I say this. The Court of Appeal proceeded on the basis that the hearing of any application for special leave was a date uncertain and did indicate, for example, that the time running out for the signing of this contract under the bidding conditions was 5 December and the caretaker period was 4 November and I should indicate that - - -

HER HONOUR: This is the caretaker period for political – in relation to the upcoming election.

MR MERKEL: Yes.

HER HONOUR: Yes, I see.

MR MERKEL: There is evidence that after that date the contract as a matter of convention could not be signed during the election period.

HER HONOUR: Yes.

MR MERKEL: It is an incidental - - -

HER HONOUR: Well, the special leave application in relation to the interlocutory decision of the Court of Appeal will be heard by then.

MR MERKEL: So really, your Honour, the so-called problems of irreparable loss and damage given the magnitude of the case are relatively modest. There is no evidence – I think I am accurate because there were three factors that their Honours said weighed in the balance of convenience, only the foreign exchange risk stands between now and 17 October. But may I say why we say that the situation the State finds itself in on the assumptions we say your Honour should make is entirely its own doing of this shrinking timeframe.

HER HONOUR: Are you proffering, by the way, an undertaking as to damages?

MR MERKEL: We are, your Honour, but we do not quarrel with the Court of Appeal’s analysis that the undertaking as to damages would not be in the arena of loss that may occur and there are cases – two lines of authority. One is that an undertaking is discretionary in section 80 as opposed to equity, and secondly, there is a long line of authority that poverty is no bar to relief if it is otherwise justified but it is a factor that obviously is relevant to the discretion.

HER HONOUR: If your client succeeds, Mr Merkel, that success in relation to representations made in relation to a project – do I have that right?

MR MERKEL: Yes.

HER HONOUR: Therefore your client’s redress would involve some rectification of whatever might be the misrepresentations.

MR MERKEL: What we say, and we have noted that in our submissions, is that the Court of Appeal has acted on assumptions entirely in our favour in dealing with the matter and what we say, your Honour, is that there is nothing to stop the State proceeding with this project on the basis of an honest and not deceitful business case. It is not the project itself which is in issue. It is the representation of the project to the public which – and this is very important because his Honour Justice Nettle made it clear that the court was acting on the basis that the representations were made on assumptions. One, they were made in the course of the State’s business. Two, they were made in trade and commerce. Three, they were misleading and deceptive conduct. Four, they were predictions without not only reasonable grounds, without any grounds.

I need to explain the procedural history for your Honour to understand why those assumptions had to be made by his Honour in the circumstances of the case because any other assumptions would have been an injustice to the applicant. If I can just explain why that is so, your Honour, but that is the most egregious breach and ultimately the question is at this stage by reason of time having passed the only remedy that would be protective of the public interest under section 232 is for that project not to proceed on this business case on the basis of those assumptions. There is no other effective remedy, and I can say without qualification that the way in which this matter has proceeded has effectively deprived the applicant of ever having a hearing on that remedy and can I give your Honour just one example of what we have been precluded by this process from adducing in court.

HER HONOUR: Yes.

MR MERKEL: I do not want to get distracted but I will come back to this - - -

HER HONOUR: I was going to say, I suppose I dare not hope that we have an undertaking from the State up until 17 October.

MR MERKEL: No, no, hope springs eternal, your Honour, but I think – I will explain the note I have just been handed up by my learned friend in a moment.

HER HONOUR: You are not obliged to if it is - - -

MR MERKEL: No, no, it is relevant, your Honour, but I need to finish what I am saying, if I might, your Honour. What occurred, your Honour, is when I say the applicant has been denied any opportunity to have the hearing that Re Paringa said he was entitled to - - -

HER HONOUR: Well, Re Paringa was quite different, is it not, Mr Merkel? The lower courts refused injunctive relief without a hearing.

MR MERKEL: No, the lower court refused injunctive relief with a hearing and the Court of Appeal was unable to deal with the appeal. The High Court said that was contrary to the administration of justice because he was not able to have his appeal heard and determined, which was a right he had, and therefore granted holding injunctive relief so he could get his appeal heard. We stand - before him we have never had the opportunity to actually apply for injunctive relief, but can I explain to your Honour why that is a matter of great significance just by one example? In our pleading, we have pleaded, your Honour, that the economic benefit on the State’s business case - - -

HER HONOUR: So this is back to exhibit 2.

MR MERKEL: Yes, I will take your Honour to it because I think I have to be careful about how I state this. Your Honour will see – can I take you to page 11, 35(f)?

HER HONOUR: Yes.

MR MERKEL: The BCR, your Honour, is the benefit cost ratio and can I just explain what that is. Basically, that is the cumulative present day value of all outgoings – sorry, of all income over the project’s life over all present day value of all outgoings which shows that in present value terms for every dollar spent there is $1.40 benefit which is a highly profitable project, and that is said to produce $1.476 billion. But the case that we would wish to make at its lowest, we would say probably higher and the Court of Appeal did refer to that, was that a large part of that is not calculable as an economic benefit and in fact if we were able to produce the business case which has been the subject of a public interest immunity claim which his Honour never determined, we would be able to show that this is a loss-making project according to proper economic accounting principles based on the State’s own calculations.

I say that advisedly because the State’s own documentation says that you should not include wider economic benefits which are very, very ephemeral in the benefit cost ratio without identifying them. Now, we, against this exchange risk, say that the public interest here suffers a harm of hundreds of millions of dollars if we had the opportunity to be heard and that is why I need to outline briefly the procedural history to show why we are in a Paringa situation, but worse than the applicant in Paringa because Paringa had the opportunity to be heard. By the process that has followed, we have been denied that opportunity.

Can I interrupt myself, your Honour, and say the note my learned friend handed says that this Court’s advice about the Court of Appeal is correct. I have just been told that the judgment will be handed down on Monday at 10.00 am.

HER HONOUR: It must have been there in the papers, I think, Mr Merkel.

MR MERKEL: We are the last to know. Anyway, your Honour, that is why the procedural history helps explain the grievance we have been subjected to and not through any fault of the Court of Appeal. Your Honour, what happened is - - -

HER HONOUR: But now, the intervener who wishes to sign up, is that right, is the preferred bidder?

MR MERKEL: Yes, although there is no indication yet on affidavit as to whether the contract will be in a position to be signed next week, the week after or by 17 October. This is a complex project and what the affidavit material does not say is that the contract will be signed before 17 October. There is a huge amount of complex matters they have to deal with; we do not know what they are. What is noticeably missing from the affidavit material is that the contract but for any order of the Court, will be signed on any particular date.

So, your Honour, at the moment the signing of the contract is a matter of total uncertainty, that is, we expect it will be signed soon but there is no reason to believe it will be signed before 17 October. I should say apart from the foreign exchange risk there is no evidence that any delay between now and 17 October will cause substantial loss of a kind that would not otherwise be caused by any kind of delay which has occurred anyway.

HER HONOUR: Perhaps I will just make an inquiry of Mr Moshinsky since the prospects are we will be sitting after normal Court hours. You have just heard what Mr Merkel said, Mr Moshinsky. You came to Court without knowing that I would inform all the parties here that the special leave application be listed for hearing on 17 October. Do you have proleptic instructions or do you wish to seek some instructions? I mean, it seems a lot of effort to go to over however many days it is, bearing in mind that all of us here know that signing a contract of this sort is not just bringing one or two people into a room but is usually a pretty large undertaking, if I can put it that way.

I have, of course, read the evidence about the risk of exposure but I am just inquiring, you may have nothing to say and I am not seeking to force something from you but I thought it might be practical to make an

inquiry of you about whether you had any response to make to the certainty that the special leave application is listed for 17 October.

MR MOSHINSKY: Thank you very much, your Honour. We have been on a track over a long period of time through the bidding process going back a year, the tender process, then whittling it down to three then whittling it down to the preferred bidder. We are at the very, very advanced stages of finalising the contract. It is due to be signed in the very, very short term, subject to the assurance that we gave to the Court of Appeal on 10.00 am Monday. So unfortunately the track that we are on is to sign it well before 17 October and the losses or risks that your Honour referred to and others do start well before 17 October. I will address them in more detail in due course, your Honour.

HER HONOUR: Certainly, yes. Sit down by all means. Yes, Mr Merkel.

MR MERKEL: Your Honour, the Court of Appeal’s decision on Monday will obviously be hugely important for our position, and relevant, and therefore we would ask whatever happens today for the matter to be adjourned over for that reason. But can I just explain the problem that besets us which the Court of Appeal will deal with and our complaint will be upheld or rejected, but we will know that at 10.00 am on Monday.

What happened is his Honour Justice Croft initially allowed us to seek production of the business case and other relevant documents for the purposes of the separate questions and the conduct of the case. The respondents objected to the production of all bar one document and took out summonses which raised public interest immunity claims on the basis that the business case had gone to Cabinet or a subcommittee of Cabinet for approval. So we are not asking for Cabinet deliberations but a document which was required to be prepared by the State irrespective of Cabinet that went to Cabinet for approval which is not surprising for a $6 to 8 billion project.

The State in its material had indicated that the PII contest would delay the case because if they lost they would appeal which one can query whether that was what ought to have been said or done, but for whatever reason his Honour was concerned to try and conclude the hearing of the matter prior to the contract being signed and because the public interest immunity problem became time delaying, his Honour then made a ruling on 8 August in a detailed judgment stating separate questions on carrying on business and trade and commerce.

But his Honour said that those questions were to be decided on agreed facts or on the pleadings. There was no real potential for agreed facts because we did not know what they were. We had pleaded all the facts in our knowledge and all the facts not pleaded were in the knowledge of the defendants, so we could not really establish the entirety of our case and complete the facts until we had had discovery to enable us to complete our particulars. His Honour said we were not entitled to do that, contrary to 100 years of authority, without citing any authority other than case management.

His Honour then determined that in the absence of agreed facts he will determine the matter on the pleadings, and his Honour then had a hearing for two days on the pleadings and the parties were at odds before his Honour and at odds before the Full Court on what pleadings his Honour was entitled to have regard to or not have regard to.

HER HONOUR: This rather demonstrates the wisdom of Justice Brooking in Jacobson’s Case - - -

MR MERKEL: Your Honour, the sad thing about this and I will not say any more than your Honour will see at 10.00 am on Monday – will know at 10.00 am on Monday Justice Brooking’s wisdom. His Honour Justice Croft thought he was applying Justice Brooking. I will say no more about that, but what happened in the trial on the pleadings is that his Honour, notwithstanding he precluded us from discovery, precluded us from calling evidence such as the business case, said we carried the onus of proof and we had failed to discharge the onus and delivered a comprehensive rejection of our case pleaded on incomplete facts.

The first ground of appeal was that what his Honour did was in breach of the fundamental duty of a court and there was – procedural fairness was denied. Now, your Honour, the effect of all that meant that, assuming we succeed on Monday which we must for present purposes because if our action stands dismissed we are before your Honour on an entirely different basis. It would have to be a Burgundy Royale or an Erinford Case because our case stands dismissed.

But if we assume, as the Court of Appeal did in refusing relief, that we succeed on the appeal that means we have been deprived from the commencement of our proceeding until next Monday morning when we expect if we succeed the matter will be remitted back to a different trial judge – expect – then that will be the first occasion on which we will be able to go to a judge and say we wish to have our interlocutory application for injunctive relief heard and our first occasion to be able to call the business case and show that the business case, 1.4, by any economic principle is a lost case, amongst other things.

HER HONOUR: I will just ask Mr Moshinsky something else, Mr Merkel, I think. Is there any prospect of you obtaining an undertaking until 4.00 pm on Monday – I believe you have given one until 10.00 am on Monday - - -

MR MOSHINSKY: Yes, your Honour.

HER HONOUR: - - -so that Mr Merkel is not obliged to make his submissions on the basis well, if this happens, if that happens, if the other happens? I mean, I understand Mr Merkel has a discrete special leave application and that is the one that is listed for hearing on 17 October next.

MR MOSHINSKY: Certainly, your Honour, I would be happy to seek some instructions.

HER HONOUR: I am happy to sit on tonight, that is not the issue. It is not the Court’s availability or convenience. It is just that Mr Merkel came here not realising that judgment will be delivered at 10.00 am on Monday and now he is in the position where he is sort of driven and I do not blame him. I mean, he has no choice in a way to be making sort of one submission and in the alternative another contingent submission and I just wonder whether all of you have some thoughts about the practicality of the best way of handling Mr Merkel’s application in the light of what is going on in another court.

MR MOSHINSKY: Yes, certainly, your Honour. Will your Honour pardon me for a moment?

HER HONOUR: Mr Merkel, I have assumed that would be of assistance to you.

MR MERKEL: It would be because, your Honour, on one hypothesis which I was on before his Honour - - -

HER HONOUR: That is right and, I mean, we are here at 25 to 4 on a hypothesis of just - - -

MR MERKEL: Your Honour, I cannot - - -

HER HONOUR: Of course, the Court is willing to meet any need for urgent relief but the trouble is the urgent relief is now going to be sort of casting contingencies and so on and just - - -

MR MERKEL: Of course, your Honour, and - - -

HER HONOUR: I am available on Monday for the whole of the day. It just might be a sensible course, I think.

MR MERKEL: We say, your Honour, logically it is very hard to justify making submissions to your Honour at 3.30 on a Friday afternoon in respect of a decision that is going to be handed down at incredible effort by the Court of Appeal on Monday which is the way this matter has in fact proceeded.

HER HONOUR: Yes. I mean, the doors of this Court are open, Mr Merkel, so - - -

MR MERKEL: That is what the Court of Appeal said when we asked - - -

HER HONOUR: But as you well know, they are open after hours. Yes, Mr Moshinsky.

MR MOSHINSKY: Your Honour, could I just say two things? To some extent it may not make a difference because the way in which the Court of Appeal dealt with the injunction application was on the assumption that the appeal was successful, but nevertheless it is one thing making that assumption, I accept, and another knowing what the reality is perhaps, and so I cannot get instructions sort of on the spot but - - -

HER HONOUR: And knowing what the reality is, Mr Merkel may wish to make some different application to the Court of Appeal because with Burgundy Royale, one needs to have applied to the court below for whatever stay is desired before coming to this Court.

MR MOSHINSKY: Which Mr Merkel did and the Court of Appeal - - -

HER HONOUR: No, he said to me this may turn into Burgundy Royale tomorrow.

MR MERKEL: If we lose.

MR MOSHINSKY: I see. Your Honour, if - - -

HER HONOUR: It is true, of course, that the basic underlying principles are very similar, but even so, he was entitled to say the legal landscape may have changed by tomorrow.

MR MOSHINSKY: Yes.

HER HONOUR: He would be entitled to renew an application for a stay if he wished to in the light of the reasons of the Court of Appeal. The fact

that they have refused an interim injunctive relief on the basis of evidence before them then does not automatically mean that there is no – well, we do not know what the Court of Appeal’s reasons are. I do not think any more should be said at this stage.

MR MOSHINSKY: Yes. Your Honour, I appreciate the time but if your Honour would like me to seek instructions, if the matter was stood down for say five or 10 minutes, I could - - -

HER HONOUR: Well, I am available Monday and I presume it would meet the convenience of the parties if I said – I mean, I am happy to say from noon onwards or whatever suits the convenience of the parties to press on with this application, but in the knowledge of having the reasons of the Court of Appeal in the substantive appeal. So, Mr Merkel, I think it would be a good idea for Mr Moshinsky to have the opportunity to get some instructions.

MR MERKEL: Yes, your Honour, I feel ridiculous talking about a hypothetical situation which ceases to be hypothetical at 10.00 am on Monday, so any time would be helpful, your Honour.

HER HONOUR: I will stand the matter down for 10 minutes and if any further time is needed you can just apply to the Registrar.

MR MOSHINSKY: Thank you, your Honour.

AT 3.36 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.56 PM:

HER HONOUR: Yes, Mr Moshinsky.

MR MOSHINSKY: Your Honour, thank you very much for that time and I am sorry it took us a bit longer than expected. Your Honour, I have instructions in light of the new developments to extend the assurance that the State gave to the Court of Appeal on Wednesday to extend that assurance until 12 noon on Monday. At the moment that is sort of as late in the day as I can get but a lot depends on what happens after 10 and then depending on what happens and what steps the applicant wishes to take it would be possible then to review whether more time is needed during the

course of Monday. In those circumstances, in our submission, it would be appropriate to hold this matter over until approximately noon Monday or perhaps shortly - - -

HER HONOUR: Perhaps until 11.30 or 11.45 to give Mr Merkel the opportunity to make an application on the basis that the time runs out at noon.

MR MOSHINSKY: Exactly, your Honour.

MR MERKEL: Yes, we are very happy with that, your Honour.

HER HONOUR: Yes, very well. I will adjourn this matter for further hearing until 11.45 Monday next.

MR MERKEL: Can I just indicate, your Honour, we have handed up to your Honour’s associate an authorities index which cross-references to the authorities in the explanatory memorandum we had referred to in our submissions.

HER HONOUR: Perhaps I should say and reserve the costs of today. Yes, Mr Young.

MR YOUNG: There was one matter, your Honour, concerning a confidential exhibit. MF-12 is an affidavit from our camp. It is marked as a confidential affidavit - - -

HER HONOUR: Yes, I noticed that.

MR YOUNG: - - - but we need an order, as I understand it, in this Court to maintain confidentiality.

HER HONOUR: Yes.

MR YOUNG: It may be unnecessary having regard to the short time but otherwise it would be a document on the Court file.

HER HONOUR: Well, I will make that order. Can you attend to the details with the Registrar of the precise order to be taken out?

MR YOUNG: Yes. Thank you, your Honour, yes.

HER HONOUR: Thank you. Very well, the Court is adjourned until 10.45 am on Monday.

AT 3.58 PM THE MATTER WAS ADJOURNED
UNTIL MONDAY, 29 SEPTEMBER 2014