Palmer & Ors v Australian Electoral Commission & Ors [2019] HCATrans 83 (23 April 2019)

Last Updated: 24 April 2019

[2019] HCATrans 083

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B19 of 2019

B e t w e e n -

CLIVE FREDERICK PALMER

First Plaintiff

JAMES WILLIAM McDONALD

Second Plaintiff

ROBERT JAMES FORSTER

Third Plaintiff

DANIEL ISAAC HODGSON

Fourth Plaintiff

and

AUSTRALIAN ELECTORAL COMMISSION

First Defendant

ELECTORAL COMMISSIONER

Second Defendant

AUSTRALIAN ELECTORAL OFFICER FOR QUEENSLAND

Third Defendant

AUSTRALIAN ELECTORAL OFFICER FOR NEW SOUTH WALES

Fourth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR VICTORIA

Fifth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR TASMANIA

Sixth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR THE AUSTRALIAN CAPITAL TERRITORY

Seventh Defendant

AUSTRALIAN ELECTORAL OFFICER FOR THE NORTHERN TERRITORY

Eighth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR SOUTH AUSTRALIA

Ninth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR WESTERN AUSTRALIA

Tenth Defendant

GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON TUESDAY, 23 APRIL 2019, AT 9.30 AM

Copyright in the High Court of Australia

____________________

MR L.T. LIVINGSTON: May it please the Court, I appear with my learned friend, MS S.J. CHORDIA, for the plaintiffs. (instructed by Alexander Law)

MR S.P. DONAGHUE, QC, SolicitorGeneral of the Commonwealth of Australia: May it please the Court, I appear with MS S. ZELEZNIKOW for the defendants and the Commonwealth AttorneyGeneral intervening. (instructed by Australian Government Solicitor)

HER HONOUR: I think you asked for this matter to be listed.

MR DONAGHUE: I did, your Honour. Your Honour will be aware that last Thursday Mr Palmer nominated for the Senate.

HER HONOUR: Yes.

MR DONAGHUE: At the time the agreed statement of facts was agreed he was the endorsed candidate for the House of Representatives.

HER HONOUR: I understand from this morning’s submissions that I got from Mr Livingston that you have agreed some amendments to the statement of agreed facts.

MR DONAGHUE: Yes.

HER HONOUR: Do you have a copy of that for me?

MR DONAGHUE: I think we probably do. Your Honour, I think perhaps we do not have that in a form I can hand up, but it is very simple.

HER HONOUR: Well, it may not be so that is why I would like to see it if I could, please. The reason why I ask, Mr Solicitor, is this. I understood from the very helpful submissions I got from Mr Livingston this morning that amendments were made to paragraphs 3 and 4.

MR DONAGHUE: Yes.

HER HONOUR: I had expected that there would be further amendments, one of them – and I may be wrong about this – concerns paragraph 37a. Am I misreading that paragraph?
MR DONAGHUE: No, you are not misreading it, but that is why we sought to have the directions hearing. There have been some discussions between the parties about amendments to other parts of the agreed statement of facts. The agreement is that we need to amend 3 and 4 in order to deal with the uncontroversial facts, if I can put it that way.

HER HONOUR: Is there any other paragraph that is in dispute?

MR DONAGHUE: I am not sure if it is still in dispute. The plaintiffs have sought some other amendments and we have said we do not agree to them.

HER HONOUR: Well, that is pretty unhelpful in this sense. Have you had a discussion with your senior counsel, with Mr Jackson?

MR DONAGHUE: He is away.

HER HONOUR: He must have a mobile phone.

MR DONAGHUE: Your Honour, would you permit me a few minutes to explain the issue because it is an issue of substance. It is not an issue of - your Honour might recall when this matter was first before you there was a question would we agree the facts and I said I was hopeful that we would but the main question was would the plaintiff agree to narrow the key fact to a fact about Mr Palmer because I said if they narrowed it in that way I was confident we would agree and if they did not narrow it in that way then there might be an issue. As it turned out there was no issue because the key fact was limited to Mr Palmer – and that is paragraph 37.

HER HONOUR: Yes.

MR DONAGHUE: The form that paragraph 37 now takes was a product of express negotiations between the parties. Does your Honour have the agreed statement of facts?

HER HONOUR: I do. I have read it again this morning.

MR DONAGHUE: Yes. So paragraph 37a, in multiple places – 37 generally, and 37a specifically links the agreement to the TCP count in the seat where the first plaintiff is standing as a candidate.

HER HONOUR: That is why I asked – I do not know that that is right because what it says is:

In light of the matters referred to in paragraphs 30 and 31 above –

and you go back to 30 and 31 and they are general:

the notoriety of the first plaintiff and the position that the first plaintiff holds within the UAP –

again, general:

the publication by the defendants of either or both of:

a and b, which means that b stands regardless what happens to a.

MR DONAGHUE: But b says “that indicative” count, which is a reference to the indicative count in a.

HER HONOUR: Correct. It may be that 37 – I see.

MR DONAGHUE: So all that we have agreed is that the count about the first plaintiff has the capacity to effect and now there will be no count about the first plaintiff because he is not running in the House of Representatives. That leaves one in the situation where the suggestion is that any other indicative count about any other candidates for the UAP are in the same position, and that is the very thing we refuse to agree, or we decline to agree in because one – to give a concrete example, one might have, for the sake of argument, a UAP candidate who polls first preference votes of, say, 8 per cent.

HER HONOUR: So does that mean I need to have a trial? I mean, I am being serious about this.

MR DONAGHUE: I am too, your Honour.

HER HONOUR: What is the position?

MR DONAGHUE: The position is that if we take a seat where there is a UAP

HER HONOUR: No, I understand what the factual position is. I am trying to work out practically what to do with this matter.

MR DONAGHUE: The reason we sought the mention is that

HER HONOUR: I understand that. What do you want me to do? You can complain about it but I need a resolution to it. What do you want me to do?

MR DONAGHUE: In our submission, if your Honour allows this matter to proceed to the Full Court on the current scheduling, the position will be that we will say there is no factual basis to find the burden exists of the kind that they allege to engage the constitutional principle.

HER HONOUR: I understand that is your complaint. What do you want me to do?

MR DONAGHUE: Vacate the hearing.

HER HONOUR: Right. Have you discussed that with Mr Livingston?

MR DONAGHUE: That is the reason that we wrote to them on Thursday and we said we do not think there is a factual basis for this to proceed before the Full Court. But I do not have an answer to it because we do not see how the plaintiffs could generate the facts that they need to run their case. Now, I appreciate that they say “We’ve already got the facts we need to run our case” and if your Honour is persuaded by that then fine, but we are conscious of the fact that the Full Court has said on a number of recent occasions that there is an expectation that there will be a proper factual foundation to crystallise the issues and our concern is that that factual foundation does not exist in this case. So we sought to bring it to the Court’s attention as soon as we could, rather than to appear on the 6th and then say well, the facts just do not engage with the constitutional principle that the plaintiff is raising and have it said at that point, well, you should have said that earlier.

HER HONOUR: So is 37 the only paragraph you complain about? This is why I have asked you to put on short submissions so I was not doing this on the run. Anyway, what else?

MR DONAGHUE: I am sorry, your Honour. There are – in caretaker and over Easter there are practical impediments to that.

HER HONOUR: Of course there are. What paragraphs other than 37a do you complain about?

MR DONAGHUE: I do not complain about any other paragraphs, your Honour. I say that 37 can stay in the document but it is effectively now meaningless because the first plaintiff is not running.

HER HONOUR: It is not helpful.

MR DONAGHUE: So the factual foundation for the case is 30 to 32, and 38 seems to be where our friends rest their case, as we read their submissions that they filed this morning – principally those paragraphs. Obviously they rely on some others. Our position is that one cannot draw the necessary nexus between those paragraphs and the kind of proposition you see in our friends’ submissions where, to take an example, at paragraph 31 of their submissions they say the publication of the TCP count would:

impermissibly distort the voting system in a manner that would compromise the representative nature of a future Parliament.

Now, our submission will be when the Full Court looks at that it will need to have some facts to say well, how would the publication of the document of the count have that consequence, and there is nothing that would allow the Court to reach that conclusion. So you have legal submissions of the kind you see in 31 and 35, for example, very real capacity to preclude electors from exercising a free choice, and no factual basis for it.

Now, I could make that submission to the Full Court but I thought I should make it to your Honour first because it does seem that there is a difficulty, and it is a difficulty that is compounded by the fact that, as your Honour would have seen in paragraph 39 of the agreed facts, the parties had agreed that there was:

no practical means, in the time available before the election, to quantify the extent or likelihood of any effect –

Now, that was the effect identified in 37, so the effect about Mr Palmer, but if that is true about Mr Palmer it must be equally true about lower profile candidates for the UAP.

HER HONOUR: This is why I asked you what your complaint was. For my part, assume for the moment 37 requires amendment. If you came down to 39, I had always understood the plaintiffs’ case to be on two bases. Yes, they have put a number of eggs on Mr Palmer – in the sense they have put a number of their eggs of their basket on him, but the end of 39 is more general.

MR DONAGHUE: In my submission it is not, your Honour. It refers back to 37:

the extent or likelihood of any effect on the electoral choices . . . identified in paragraph 37 –

So that is Mr Palmer:

or to ascertain whether any such effect –

so that is the effect identified earlier:

would be favourable or unfavourable

HER HONOUR: Is that the same for 40?

MR DONAGHUE: Well, 40 is pointing the other way. So 40 is saying in addition to the 37 factors there are all these other factors. None of those are subject to complaint. So, for example, in 40a it is accepted that there will be:

progressive first preference counts for –

each candidate. So in my example before one might see, on the first preferences, a certain number of votes for the ALP and the Liberal National Party, a certain number of votes for the UAP, all on first preferences on a progressive basis, and yet it is said even if the UAP candidate is miles behind on that count, when one then goes to the next graph, the pie chart showing the indicative two party preferred and leaves out the UAP, that that second publication is what distorts electoral choice and we say how?

HER HONOUR: Mr Solicitor, I think we are at crosspurposes. I had always understood this case to be put on two bases, what I will call the Mr Palmer basis and the broader basis. Assume for the moment that 37 is addressed, because at the moment it factually does not represent the position, what is your position if it is amended to deal with what I will call the general basis, so there is just a general complaint about it having regard to paragraphs 30 and 31?

MR DONAGHUE: I am not trying to be obtuse, your Honour. Is your Honour suggesting that 37 would be amended?

HER HONOUR: It would have to be. It would have to come out at the moment.

MR DONAGHUE: To come out rather than to be broadened.

HER HONOUR: I will put my proposition again. I had always understood the statement of agreed facts to be put on two bases: first, what I will call the specific Mr Palmer basis; second, a more general complaint dealing with what I will call the party. You find that reflected, as I read it, in the fact that you have paragraph 4, although I have not seen the amendment to paragraph 4. You have what I will describe as the paragraph dealing with the indicative two candidate preferred count, you have the events relating to the 2013 federal election

MR DONAGHUE: Which is all about Mr Palmer.

HER HONOUR: But that does not matter. That is a factual matter that affects the party itself, as I understand the way it is put. Then you get to the federal election in 2016 and then you have the United Australia Party, which deals with 30, 31 and 32.

MR DONAGHUE: Yes.

HER HONOUR: You then come across to – so, at the moment there is a complaint about people other than Mr Palmer, just dealing with the complaint about the count, vis-à-vis the party, finding reflection especially in the fact in 32.

MR DONAGHUE: So one has a fact in 32.

HER HONOUR: No, I am just building up

MR DONAGHUE: Sorry, your Honour.

HER HONOUR: to deal with this contention – I might be wrong – that was put on two bases. It may be a weaker case but it is at least put on on two bases. Then we have the election. Put aside 37 for the moment. Then, for present purposes, 34, 35 and 36 deal with a whole range of matters applicable to every candidate for the UAP, in particular the plaintiffs identified as Nos 2, 3 and 4 – I will put Mr Palmer aside for the moment.

MR DONAGHUE: Yes.

HER HONOUR: Put aside 37; 38 plaintiffs rely upon these articles – I accept that there is a difficulty with possibly 39 and 40 but if one took out the reference to 37 one would still have the general complaint, vis-à-vis the party.

MR DONAGHUE: Your Honour, we had not conceived of the case as involving those quite separate complaints so that the facts at 30 to 31, 32 and then 33 to 36 do, I accept, deal with the party generally. They build up toward the proposition that there is an effect on electoral choice and the effect on electoral choice is the 37 fact.

HER HONOUR: The reason why I ask that question is because when you read the submissions they have filed, it seems to be consistent with that thesis.

MR DONAGHUE: Yes, it is broadened to that because the Mr Palmer part of the case has

HER HONOUR: I think it has always been there. It is just a question of whether or not – I mean, they would have to amend their submissions, at least in paragraph 40 it seems to me. But I might be wrong about that. So we come back to two questions. The first is I do not know where we are up to with the statement of agreed facts, but as I said, as I read the statement of agreed facts and I read their submissions I had understood to be put on two bases.

MR DONAGHUE: Your Honour, I think where we are up to with the statement of agreed facts, from the defendants’ aspect, is that we agreed a document, some facts changed which required some updating, which is uncontroversial, so that updating can happen, but the fact that Mr Palmer has now decided to run for the Senate is not, in our submission, an occasion to totally reopen negotiations about the agreed facts.

HER HONOUR: I am not a party to any of that. I have only what I have in front of me.

MR DONAGHUE: No, I understand that.

HER HONOUR: I have no amended statement of agreed facts. I have a statement. No one has given me what you have agreed.

MR DONAGHUE: Your Honour, I can hand up the page that has the agreed amendments – I cannot hand up the whole document but I can hand up that page if that would assist – it has paragraphs 3 and 4.

HER HONOUR: Right.

MR DONAGHUE: Would that assist, your Honour?

HER HONOUR: As I said, it would seem to me that that is probably not sufficient given what you and I have just discussed.

MR DONAGHUE: That is the difficulty, your Honour. If it is not sufficient, in my submission, your Honour should be proceeding at the moment on the basis that other than the amendment to 3 and 4 there is no amendment to the agreed statement of facts. The question, in my submission, is then what happens because

HER HONOUR: That is why I asked you and at the moment I do not have other than it should not go to the Full Court. I have to resolve the matter before an election. I have to deal with it.

MR DONAGHUE: But your Honour has to deal with it in circumstances where the plaintiffs are not able to advance the factual foundation for the case that they want to run. That is not our fault.

HER HONOUR: Well, they can. They can put forward a case. At the moment you have not agreed to whatever is proposed, which I have not seen, so the question which arises is what is before me and how am I going to determine it.

MR DONAGHUE: In my submission the answer to the question what is before you is the existing agreed statement of facts amended in paragraphs 3 and 4. If there need to be further facts negotiated, to put the matter in a form that is fit for the Full Court, then that has not happened and if what the plaintiffs want is us to agree 37 but applying to everyone – to all candidates of the UAP – then that is the very thing that created the problem right at the start of this case that I identified at the first directions hearing. We do not agree that that is true.

We do not understand how it is put that a two party count has a distorting or burdening effect on electoral choice in circumstances that include, for example, the hypothetical I raised where there is a Palmer candidate getting a very small primary vote. To publish the two party count in that seat has, in our submission, no effect on electoral choice. One looks at the first graph one says the Palmer candidate is not in it and then to say what the two party count is says nothing about how – so, if our friends want the Court to decide that publishing the two party count burdens electoral choice they need to explain factually how they put that and there is just nothing

HER HONOUR: They have put it legally. It is set out in their submissions. It is either good or bad.

MR DONAGHUE: As I say, your Honour, if what they have said in their submissions and what they currently have in the facts is enough for them to succeed, so be it, and we can argue the case on that basis. But, in our submission, the fact that linked – and it was reasonably tentative even when Mr Palmer was running for the House but the fact that linked to the constitutional argument was 37. That was the fact that showed how it was said that there was a capacity to impact on electoral choice, to affect electoral choices. In circumstances where 37 has been overtaken by events, in our submission, the plaintiffs are – or the Court is in a position where it might be said that there is not a proper factual foundation for the case.

Now, I fully accept, your Honour, that if they put it legally, they have said in the submissions that they have filed this morning they have what they need, if your Honour is content with that then

HER HONOUR: I am asking you – I have asked three times what you want me to do and you tell me it is not in a state to go forward. I have an election called and I have an application. So there would seem to me a number of options. I will hear what Mr Livingston has to say, but I still do not actually know what you want me to do or what you are suggesting the Court should do. You might have a think about it while I have a chat to Mr Livingston. Mr Livingston.

MR LIVINGSTON: Yes, your Honour.

HER HONOUR: It seems you have some problems.

MR LIVINGSTON: Your Honour, we say we do have sufficient facts in the current agreed statement, particularly because we put the case as we always have, on what your Honour has identified as being the second basis, that is the broader basis relating to the party rather than Mr Palmer personally. It is also important to recognise that

HER HONOUR: Just before you – let us deal with that factual question first. As I discussed with the Solicitor, I had expected – and as I said I do not have an amended copy other than to be told it is only paragraphs 3 and 4 – that you would have to amend paragraphs 37, 39 and 40, would you not?

MR LIVINGSTON: We accept that we would, but only for the purpose of making clear that they have been overtaken by events.

HER HONOUR: I do not know what that means.

MR LIVINGSTON: It means that 37 as it currently stands is a concession regarding effect on electoral choice which would remain relevant to the Court because we say it is a small logical step beyond paragraph 37 as it currently stands.

HER HONOUR: I do not understand that. You will have to take me through that. I am being slow. Paragraph 37 deals with a position that no longer factually pertains, that is that Mr Palmer was going to be a candidate in the House of Representatives.

MR LIVINGSTON: Yes, and we say that no longer obtains, but the very fact that the Commonwealth was prepared to accept that the two candidate preferred count relating to Mr Palmer had the capacity to affect voters’ choices elsewhere in the nation is itself relevant when the Court comes to decide whether it will draw what we say is the logical inference that the TCP count relating to other candidates of the same party likewise has the capacity to affect voters’ choices elsewhere in the nation.

HER HONOUR: So is that second matter going to be the subject of agreement?

MR LIVINGSTON: We had proposed on Thursday to the defendants’ solicitors an amended form of 37. That has not been accepted but of course we would welcome the opportunity to continue those discussions.

HER HONOUR: Well, time is running out, Mr Livingston.

MR LIVINGSTON: Yes, I appreciate that. Your Honour, I should say that paragraph 37 is not necessary in any form for the statutory case which we put, that is to say the argument concerning the implied statutory limitation as opposed to the constitutional limitation does not depend on the Court making any finding about effect on electors’ choice. For that reason alone the matter remains appropriate

HER HONOUR: That is how I had understood your submissions, which is the reason I put the submission to the Solicitor.

MR LIVINGSTON: Yes, your Honour. So we say in those circumstances the case remains appropriate to go forward to the Full Court but there

HER HONOUR: It does not at the moment because I do not have a statement of agreed facts and this is my problem. The question is how we resolve that, if at all, or whether or not there is some other mechanism for the resolution of this matter that will deal with it in the most expeditious way.

MR LIVINGSTON: Your Honour, bearing in mind that paragraph 37 deals with a logical conclusion or an inference rather than a primary fact, that is to say it is a conclusion about capacity to affect electoral choice, and it is a fact which is really not readily knowable or capable of affirmative proof by either party, it concerns an imponderable, that is what are the considerations in the minds of millions of voters protected by the secrecy of the ballot box. That is a matter that

HER HONOUR: Let us put the rhetoric to one side and let us deal with it. Paragraph 37 is at the moment inaccurate and that affects 39 and 40 and is no longer the subject of agreement. So we have to resolve that agreement.

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

HER HONOUR: Either it comes out if it is not going to be agreed and you go forward on the materials, or it is the subject of some other agreement between you. How long are you going to need to work that position out?

MR LIVINGSTON: We expect we can do that by the end of tomorrow, your Honour.

HER HONOUR: I think it is too late. The defendants’ submissions are due on Friday.

MR LIVINGSTON: Yes, your Honour.

HER HONOUR: Does that also require you to amend your submissions?

MR LIVINGSTON: No, it does not. It does not because paragraph 40 of our submissions, which is the only paragraph that refers to 37 of the agreed facts, simply records a concession made by the defendants and goes on to make the submission that that concession supports a wider logical conclusion.

HER HONOUR: My difficulty though, is 37 will not be there. So the factual foundation for that concession and, therefore, the submission will no longer be apparent.

MR LIVINGSTON: Well, that will be so if 37 comes out entirely.

HER HONOUR: Yes.

MR LIVINGSTON: For our part, we remain hopeful that some version of paragraph 37 can remain and we put a version of paragraph 37 to the defendants late last week and we are certainly prepared to continue that discussion.

HER HONOUR: Anything else you wish to say?

MR LIVINGSTON: No, your Honour.

HER HONOUR: Mr Solicitor, I find myself in a very unusual position where I do not have the facts, I am being asked to make a decision in a vacuum and we are under time constraints. What I put to you, I think, reflects what Mr Livingston has now made by submission. It may be, on your case, hopeless, that is the Palmer matter may be hopeless – I do not know. What I do know is what I have before me and that is a set of facts which are subject to 3 and 4 been amended. I accept 37 is a bit odd and will
affect 39 and 40. But when I read the submissions that were filed, as I said to you when you first stood up, they seemed to me to be put on two bases – factually and legally.

Now, the options seem to me to be blunt and they are these. We either have an agreed statement of facts by 2.15 this afternoon or we do not. If we do, then Mr Livingston will have to amend his submissions by 4 o’clock this afternoon to take account of whatever agreement is met and you can file your submissions by Friday. So I assume that this little wander down the pathway is not going to have affected the preparation of those submissions.

MR DONAGHUE: It certainly has not, your Honour.

HER HONOUR: That does not surprise me. If they cannot be agreed then you can come back and see me at 3 o’clock this afternoon and it may be that what I will do is just work out how it can go forward in one way or another and if it cannot then it may be that I will have to determine it myself and be the subject of appeal. But it seems to me it has to be dealt with before the election.

MR DONAGHUE: I understand that, your Honour, and we are certainly not seeking to stand in the way of that. To try to be as clear as I can – in terms of amending the statement of facts so that there is a proper statement of agreed facts before the Court, there is no difficulty with 3 and 4. With 37, 39 and 40, for my part, I would not anticipate difficulty tidying it up a bit, if I can put it that way, but not changing the substance of those.

HER HONOUR: That is a matter for discussion with Mr Livingston.

MR DONAGHUE: Yes.

HER HONOUR: He has to make a choice as well.

MR DONAGHUE: Yes.

HER HONOUR: Both of you do. Time is limited. He says he does not need 37, 39 and 40 for the second part of his argument. He may need something more for the first. Well, he can have what he can get and otherwise, as I said, there are options available.

MR DONAGHUE: Yes, all right. I understand, your Honour.

HER HONOUR: The other option is to remit it to the Federal Court and you can have a big trial down there, although I cannot imagine they are going to do that before the election.

MR DONAGHUE: Part of the problem, your Honour, is that the fact recorded in 39 speaks to the difficulty in getting the material. So there is, as 38 refers to – some work has been done in this area. It is possible but in other jurisdictions overseas in quite different systems, we say.

HER HONOUR: I have read them.

MR DONAGHUE: But in theory that kind of work could be carried out, but obviously not before the election. So one is feeling around in the dark, I suppose, in the absence of any evidence about how that might play out here.

HER HONOUR: Well, this morning that is exactly how I feel.

MR DONAGHUE: Yes, I understand, your Honour.

HER HONOUR: I do not have a draft in front of me to even consider it so I think in the circumstances you can have until 2.15. You can let me know whether or not you need me to come back, otherwise I will see you all at 3. But I think both of you have some decisions to make pretty quickly.

MR DONAGHUE: In the event that an amended document is agreed and filed, then we just proceed on the existing timetable.

HER HONOUR: You have it. Is that all right?

MR DONAGHUE: Yes.

HER HONOUR: Anything else?

MR DONAGHUE: No, your Honour.

HER HONOUR: Mr Livingston?

MR LIVINGSTON: No, nothing further. Thank you, your Honour.

HER HONOUR: Mr Livingston, just to make it abundantly clear, you are going to have to make some hard decisions pretty quickly.

MR LIVINGSTON: Yes, your Honour.

HER HONOUR: If you have an agreed statement by 2.15, which you will email to the Registrar so at least I can have a look at it, I will make sure that I am still of the view that it is in a state to go forward but you will have to file amended submissions by 4 o’clock this afternoon as well.

MR LIVINGSTON: Yes, your Honour.

HER HONOUR: Anything else? Adjourn the Court.

AT 10.00 AM THE MATTER WAS ADJOURNED