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SPI PowerNet Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [ 2014] HCATrans 288  (12 December 2014)

Last Updated: 16 December 2014

 [2014] HCATrans 288 

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M35 of 2014

B e t w e e n -

SPI POWERNET PTY LTD (ACN 079 798 173)

Applicant

and

THE COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 DECEMBER 2014, AT 9.34 AM

Copyright in the High Court of Australia

MR S.H. STEWARD, QC: If the Court pleases, I appear with my learned friend, MS L.A. HESPE, for the applicant. (instructed by Deloitte Lawyers Pty Ltd)

MS H.M. SYMON, QC: If the Court pleases, I appear for the respondent with my learned friend, MR E.F. WHEELAHAN. (instructed by Australian Taxation Office)

CRENNAN J: Thank you, Ms Symon.

MR STEWARD: If the Court pleases, a housekeeping matter first. Could I make an application to change the name of the applicant to now Ausnet Transmission Group Proprietary Limited?

CRENNAN J: Yes, we make that change.

MR STEWARD: Thank you. If the Court pleases, could we do three things really? Could we first tackle the proposition, or the problem as we see it in a broad way, then can we identify the error below, then could I, or we, submit why we think the error merits special leave?

CRENNAN J: Well, we appreciate you have got the benefit of a dissent from Justice Davies, but one matter you might address is why we should grant leave in circumstances where there is some common ground between the primary judge and the majority justices in the Full Court.

MR STEWARD: The nub of it is this, your Honour. It is what is one to do with the authority of Cliffs International. The principle which was dispositive by the majority and by the learned primary judge below was the famous dictum of Justice Fullagar in the Colonial Case. The Court remembers it, it says:

It does not matter how they are calculated, or how they are payable, or when they are payable, or whether they may for a period cease to be payable. If they are paid as parts of the purchase price of an asset forming part of the fixed capital of the company, they are outgoings of capital –

Now, juxtapose that to the principle articulated by Chief Justice Barwick 26 years later in the Cliffs International Case where his Honour the Chief Justice said:

it clearly and, in my opinion, correctly appears that the fact that payments are made or received in performance of a promise given as part of the consideration for the acquisition of a capital asset does not necessarily mean that the payments are themselves of a capital nature.

So it is a proposition which is in stark contrast to the dictum of Fullagar, and the Chief Justice went on to say:

Whether [Colonial] . . . was rightly decided upon its own facts is not a matter I have presently to consider.

CRENNAN J: Neither of those Justices was considering a transaction of this kind, I expect, because there is something sui generis, is there not, about the special licence fees of this kind charged in the context of privatisation of what was once public infrastructure?

MR STEWARD: Yes, and indeed, we will come to it in a moment. What makes the case different from Colonial and different from even Cliffs International is that the paying of the impost has secured for my client no advantage at all, it was simply a tax which you have to pay. It was a tax which originated in a problem with the calculation of the ongoing maximum allowable revenue, so that - - -

CRENNAN J: When you say “a tax”, a compulsory exaction imposed by the State.

MR STEWARD: And not a fee for a service.

KIEFEL J: Or a return of revenue.

MR STEWARD: Yes, not a fee for service, unlike United Energy, where the payment secured a monopoly.

KIEFEL J: But as Justice Crennan has said, it is rather sui generis this impost. Can you put a matter of public importance on the basis that there are going to be other cases of this kind?

MR STEWARD: I cannot properly make a prediction one way or the other, other than to say that in the context of privatisations where you are not just simply selling a business or an asset simpliciter but you are doing so in the context of a regulated environment, the possibility or, indeed, the probability that businesses will be sold in connection with special imposts like the one we have here may very well arise in future years, particularly in those States where assets are not as privatised as here in Victoria.

Could I indicate to the Court that where we get to the issue of public importance is having juxtaposed those two principles, one of the judges below decided the case by reasoning, amongst other things, that the jurisprudence both before and after Cliffs International does not support the dictum of Chief Justice Barwick, that Justice Jacobs in the same case arguably focused on the wrong asset, and that Cliffs International did not justify a departure from what Justice Edmonds called “the orthodoxy” of Colonial.

These observations by the Full Federal Court, with great respect, leave the authority of Cliffs International dangling in the air. Practitioners will not know what to do about it. Having regard to the criticisms made of it by the Full Federal Court, is it still good law? Is it not good law, or do they, as so often - - -

KIEFEL J: Or has Cliffs International always been a little on the stage left anyway because it turns on its own facts?

MR STEWARD: It may be, but the way in which the principle was expressed by Chief Justice Barwick in the quote I read out earlier, namely, you have got on the one hand all payments which are consideration for a capital asset are capital, that is a strong principle, clear. On the other hand, not all payments which are part of the purchase price of a capital asset are on capital account.

CRENNAN J: If you were to be granted special leave, would you be contending that it should not be overruled, or would you be making some submission short of that?

MR STEWARD: I will be making a submission that the result in Colonial is right but that the dictum of Justice Fullagar needs to be qualified in the way that Chief Justice Barwick qualified it. It is important in this case because – and it is probably best if I ask the Court now to go to the judgment below – appeal book, page 60. Now, if I can ask you to go to paragraph 35 of the reasons for judgment of Justice McKerracher. At paragraph 35, his Honour says:

It appears to be common ground (correctly) that although the Transmission Licence to which the Imposts attached was part of the assets sold, the Imposts –

what we are claiming a deduction for –

were not part of the purchase price under the Asset Sale Agreement . . . On the other hand, there was, under the same agreement, an obligation imposed on ATC to pay the Imposts.

The same juxtaposition between, on the one hand, not being part of the purchase price but nonetheless being part of the deal for the acquisition of the business, that juxtaposition lies at the heart of the issue of principle in this case.

CRENNAN J: It is a contractual route, is it not, to the same result?

MR STEWARD: With respect, perhaps it is, although we would submit, if leave were granted that the finding that there was a contractual liability created by the asset sale agreement was wrong, the only liability, we would submit, is that imposed by the order in counsel pursuant to section 163AA. But the principle which we seek to enliven is this, that it is perfectly true that if a payment is made which secures an enduring advantage such as a capital asset, it is on capital account, so be it.

But payments which are in connection with or more broadly causative or which, to use duty language may move the acquisition, in the case of such payments, as Chief Justice Barwick rightly observed, they are not necessarily on capital account because in each case you need to ask the question which, with respect, was not answered by the majority below: what was the character of the advantage obtained by paying the imposts? We know the character of the advantage obtained by paying the total purchase price – that got my client the business.

CRENNAN J: Justice Davies would say it is an expense in relation to the business operations, and that is the position for which you contend.

MR STEWARD: Yes. It becomes like other taxes which burden the business, albeit in this case it is a tax on one person only. They are part and parcel of the lawful imposts which a business may encounter year in, year out, and which have to be paid.

BELL J: The view of the majority was, I think, indicated in one part in the reasons of Justice Edmonds at application book 53, paragraph 12, the:

imposts were outgoings of capital . . . because they were part of the cost . . . of acquiring the assets of the business –

As I understand his Honour, in the sense that the deal would not have gone through had your client not agreed to become bound to pay the imposts.

MR STEWARD: Yes, and you are quite right, your Honour, but with great respect to Justice Edmonds, what he did in this case was approach the matter rather like it was a Duties Act case. He identified all the consideration which moved the transfer, what was the consideration for, and he said, well, this is plainly part of that so therefore it is on capital account because of what Justice Fullagar said. Our point is different, you do not - - -

CRENNAN J: Well, the liability that arose on the transmission of the licence is how Justice Edmonds analysed it.

MR STEWARD: He did say that, but even in his paragraph 13 at application book 53, his Honour commences his analysis by saying:

It is true that the s 163AA imposts did not form part of the “Total Purchase Price” –

and this is not a case, your Honours, where the total purchase price is some disguised consideration. It was never put that it was not the arm’s-length price for the assets.

CRENNAN J: So your point in a nutshell seems to be that the majority Justices in fact made observations which seemed to take these facts out of Justice Fullagar’s dictum, but then found this to be an expense on capital account, is that the nub of it?

MR STEWARD: Perhaps that is right. The nub of it I would perhaps express is this. Is that what they did was that they approached the Fullagar dictum as if this was a duties case, and by approaching it in that way they never asked the question, what was the character of the advantage secured by paying the imposts? If they had asked that question they would have seen three things, with great respect, and none of the facts were in dispute - (a) the origin of the impost lay not in the bargain struck for the sale of the asset but in the regulatory problem identified prior to sale, namely, that on an ongoing basis the transmission network owner was going to earn too much money.

Then what was the solution to that problem? It was to impose a tax to take away or deny the taxpayer the income which would exceed the threshold. We can see the origin and nature of the impost very clearly in the diagram which appears at application book 17 at paragraph 30 in the judgment of the primary judge. You can see that - and I trust the Court has got a colour version of this as I have - - -

CRENNAN J: We do, we do.

MR STEWARD: - - - the yellow bit is the bit that the impost is attacking. So from my client’s perspective, and bearing in mind unlike stamp duty where you look at it from the perspective of the vendor, from the perspective of the purchaser here, what was the advantage obtained by having that revenue denied to it by reason of this impost? With great respect, nothing; that is the whole point of the impost. It is not part of the exchange between the taxpayer and the State whereby the - - -

CRENNAN J: It is the suppression of profits, I suppose, but it is not a profits tax because it is not imposed in relation to profits.

MR STEWARD: No, it is not, and perhaps not a suppression of profits but a suppression, as Justice Davies said, of gross revenue, gross revenue, a taking away of gross revenue, revenue which economically my client under this regulatory regime is not intended to enjoy but nonetheless pays tax on it because it is included in its assessable income.

CRENNAN J: That all goes back to an assessment of an acceptable rate of return on investment, I take it.

MR STEWARD: Yes, it does, your Honour, quite right. So what we say is that we think – and you can see what we - - -

CRENNAN J: You submit.

MR STEWARD: Yes, we respectfully submit, you can see the error most clearly when you get towards the end of the judgment of Justice McKerracher. If you go to application book 70, paragraph 71, and this is it in a nutshell:

The provisions of the Asset Sale Agreement imposed a separate contractual liability to pay the Imposts in order to acquire the Assets, including the Transmission Licence. The payment was therefore a capital amount.

That was the process of reasoning identifying what causatively caused the transfer of the business; if the payment causes the transfer of the business, therefore, capital. With great respect, that is not the principle and if that is what Justice Fullagar’s dictum means – and we do not submit that it is – then the dictum needs to be qualified, corrected, illuminated so that we are brought back in every case to the key principle that we get from some newspapers that the chief, if not critical, factor to ask is what is the character of the advantage sought.

Here, with profound respect, the error that we would say is this: is that, if the dispositive principle requires that all payments which condition the transfer of a capital asset, or which cause or ultimately move it, or to use the language of the recitals here, the recitals use the phrase “in connection with” the fact or transfer - if that is the test that we get from Justice Fullagar then, with respect, it is wrong and would need to be qualified in three ways as a matter of principle.

First, the payments which exhibit a broadly causative relationship of the transfer of a capital asset may nonetheless be on revenue account, as Chief Justice Barwick with whom Justice Jacobs and Murphy agreed on the result. Secondly, that from an agreement for the sale of a capital asset there may spring liabilities, some of which will be on capital account, undeniably, but some of which may be on revenue account; and thirdly, a payment may be a condition of sale but nonetheless be over and above the price paid for the asset. If that is the case, and it was here, then that additional payment is not necessarily infected with the same capital characterisation as the price.

BELL J: Can I just take this up with you? As I understand it, significant to the reasoning both of Justice Edmonds and Justice McKerracher and the primary judge was the consideration one sees at application book 53, paragraph 13 – the balance of the paragraph – where it is pointed out that the imposts were “prospective obligations/liabilities of the Seller” and that the contract used the expression in terms of the calculation of the price “net of Creditors and Contract Liabilities” so that the State became the creditor for the purpose. Now, what is wrong with that reasoning?

MR STEWARD: The error is this. In no part of that reasoning has his Honour asked the question (a) what was the advantage obtained by making the impost; that is the first error. The second error is this. Imagine A is the owner of a shop and sells the shop to B and does so for a capital sum. There can be no doubt that the sum in question would be on capital account because it secures an enduring advantage. But suppose you change the example slightly and A says to B, I will sell you the shop for $100 but also I want you to promise to enter into a lease with me as a condition of sale that you lease the shop which I will retain ownership of for five years and give me a warranty that you will pay the rent.

In that example, the promise to enter into the lease and pay the rent is a condition of sale. It is broadly causative of the disposition of the capital asset, but for that promise a capital asset will not move. Yet, in that example, the payment of the rent will be on revenue account and what concerns us is that in so broadly putting the proposition in this case you would reach the conclusion that the rent is on capital account, because, to use Justice McKerracher’s reasoning, it is paid in order to acquire the assets. That is the problem here.

CRENNAN J: I suppose the common ground though is it goes a little bit beyond that, as Justice Bell was suggesting, and it is this. The imposts were integrated into the sale in a way – this is what seems to be what is the nub of the reasoning of both the primary judge and the majority Justices, agreeing they took different pathways, but the nub seems to be that the impost was integrated into the sale in a way that means treating them for tax purposes as anything other than part of the purchase price may be

artificial, that that may explain why Cliffs International was passed over, if you like.

MR STEWARD: That would be so, your Honour, if the proper finding below was that the imposts formed part of the total purchase price, but that was not the finding below. Indeed, you can see that in the recitals – and this will be the last thing I take the Court to, having regard to the time - at application book 60 and 61. The recitals, which are put against my client, commence with the identification of the total purchase price – 2.5-odd billion. Then in recital F, we get to the inextricably bound up point:

The parties agree that the total payments to the State in connection with the privatisation of [PNV] are $2,732,500,000 –

and that includes the present value of the liability to pay the licence fees. The proposition that we respectfully submit is that if a payment is merely in connection with the sale of a capital asset, in circumstances where the price for the assets is identified and not in dispute, you must go on and ask the question, what did making that payment get you? For the reasons that we have submitted on the facts of this case, it is like a tax, it really got you nothing. Indeed, it would be antithetical to the purpose of the impost if my client were to get something back given that the purpose of the impost was to take something away. If the Court pleases, those are the submissions for the applicant.

CRENNAN J: Thank you, Mr Steward. Yes, Ms Symon.

MS SYMON: If the Court pleases. Our submission is that there is not a special leave point here. What the applicant is trying to do is extract principle from Cliffs International and set up a principle to be applied from Cliffs International against a supposed principle appearing in the Colonial Mutual Case.

CRENNAN J: Do you accept these imposts are rather sui generis in the context of privatising what was once publicly held infrastructure assets?

MS SYMON: Indeed, your Honour, but part of our case – our opposition is that this case does turn on the distinct arrangements made in the privatisation of the Victorian electricity transmission system, and that in the particular context of the particular arrangements put in place for the conveyance of the State run electricity transmission system into private hands those arrangements were correctly construed in characterising the payments in question and even if there was a doubt about it, there certainly is not sufficient doubt to warrant the grant of special leave in this case, having regard to the common ground, as your Honour Justice Crennan pointed out at the outset between the - - -

CRENNAN J: There is no relevant dispute about the facts though, is there, Ms Symon?

MS SYMON: No, there is not a relevant dispute about the facts. In fact, my learned friend seems to rely on very much the same facts as I do and the same parts of the agreement. The question between us is what does one construe from – or what does one – what are the consequences of that - - -

CRENNAN J: It is a characterisation question, is it not, for tax purposes?

MS SYMON: Indeed, indeed, and the nub of the point is the one I would respectfully attribute to your Honour Justice Crennan that in the arrangements that were made the obligation to pay the imposts was assumed and became part of/embedded in the asset sale agreement itself, that is, they were integrated into the sale.

KIEFEL J: Well, it was certainly notified in the sale agreement, there was good reason for it having to be notified in the sale agreement, of course, but because the impost is sui generis is it possible that it is to be characterised as neither capital nor revenue in nature?

MS SYMON: Recital F at page 60 of the book, that recital did indeed set out the purchase price, but in a second paragraph specifically acknowledged that “total payments to the State” included these payments and that all the payments made to the State, these payments in particular, were made “in connection with the privatisation of [PNV]”. So again, the imposts are connected to the process of the privatisation. Then in clause 13, the terms of which are set out in paragraph 42 at page 62 of the application book, there were warranties. There was a variety of warranties, but critically it was acknowledged that the imposts would be made “in order to carry on the Business”. Again, there is this notion of the imposts, the obligation to pay the imposts, being integrated into the acquisition of the business.

CRENNAN J: Well, Justice Davies has an answer – and I am not saying one way or the other whether it is correct or not, but Justice Davies does propose an answer in relation to your 13.3(d) point. In other words, at page 81, at the end of paragraph 107, she deals with the argument, but her finding is that:

the fact that SPI was the holder of the licence when the amounts became payable –

is the critical factor rather than an acknowledgment, as you might describe clause 13.3(d). In other words, we find in the dissent some answer to the contractual argument.

MS SYMON: Well, in our submission, not, because it ignores the particular terms of clause 13.3(d). It ignores two things. Firstly, it ignores the fact that the State was a party to the agreement and the juxtaposition between the conditions precedent which were in the power of the State to fulfil and the taking up of the obligation to pay the imposts. So there is a direct relationship between the party who can effect the transfer of the licence and the making of the payments under the licence of the order.

CRENNAN J: So focusing on the acquisition of the assets, not on the moment at which the liability is triggered.

MS SYMON: That is right, because if one looks at the structure that was put in place at the time the assets were acquired, when one comes to make the payment – when one stands in the time of the making of the payment, one sees that it is referrable to the obligation undertaken as part of that acquisition. The other aspect is the terms of clause 13 itself. If I could ask the Court to go to paragraph 42, page 62 of the book. The warranties contained acknowledgement but also critically warranty (3) was an agreement to make the payments:

whether or not the Licence Fee Order is valid or enforceable –

That is an important aspect, as Justice McKerracher held, because that set the obligation to make the payments up separately and independently of the licence fee order and, indeed, there is a further gloss to that in 13.3(d)(2) in which the purchaser undertook not to:

challenge the validity of the Licence Fee Order –

Again, moving back, the payments were acknowledged to be an integral part of the regulatory framework which is part of what the purchaser is acquiring.

CRENNAN J: So you would say more like a “duties” case than not, to answer Mr Steward’s main point.

MS SYMON: Yes, perhaps so. I am not sure if the judges below were conscious that they were treating it as a duties case but, indeed, all those points that emerged from the warranties and the structure of the arrangement were the ones that were teased out by Justice McKerracher below in paragraphs 66 through to 70, the notion that the obligation to make the payments was part of the regulatory framework which was part of the substance of what was being acquired.

There is another important aspect which Justice McKerracher points to and that is that the purchaser’s parent company was a guarantor under the asset sale agreement. That means that when the obligation to make the impost payments was embedded into the asset sale agreement, it created an additional obligation, that is, an obligation additional to the licence fee order itself, because as a result of the agreement the State now had the opportunity to enforce the making of the payments against the parent company as well as the actual purchaser of the assets.

I do not know if your Honours would be assisted by some discussion of the Cliffs International/Colonial Mutual point. I suppose the short point is that both of those cases turned on their own facts. They were acknowledged to do so by the judges who heard them and Cliffs International is different from this case. It was quite rightly distinguished and the reasons for the differences are articulated by the judges below.

CRENNAN J: And you are not seeking to overrule it or suggest that it should - - -

MS SYMON: Certainly not. We say that the two cases sit - - -

CRENNAN J: Sit together.

MS SYMON: - - - perfectly happily side by side if one recognises they turn on their own facts, and the judges – certainly in Cliffs International the Court was very much of the view that Colonial Mutual turned on its own facts. Indeed, what Chief Justice Barwick said was – well, let me just find his paragraph – importantly at 151, point 4 to 151, point 6, Chief Justice Barwick who is relied on as creating a division said as to Colonial Mutual:

I do not find the facts . . . analogous . . . depended upon its own facts and is, in my opinion, clearly distinguishable –

and then our learned friends rely on the following -

Whether it was rightly decided upon its own facts is not a matter I have presently to consider.

That says no more than that Colonial Mutual turned on its own facts which had no bearing on the case before the Chief Justice.

CRENNAN J: I suppose the point really is you have got Justice Fullagar speaking about part of the purchase price and then you have got Chief Justice Barwick talking about the consideration for acquisition of capital assets and you have got different results, so that accepting that the cases are distinguishable an argument arises, if you like, of the kind that Mr Steward is advancing.

MS SYMON: Well, in our submission, this is where our learned friends are trying to extract statements of principle which are not found in the cases, so the passage from Justice Fullagar’s judgment is taken out of context. When one reads the sentences before and after the passage which he has extracted, it is clear that his Honour is speaking in the context of the facts of that case. The relevant passage is at page 454, point 4 in the judgment. Colonial Mutual is at tab 2 of the book. Our learned friends rely on a passage which begins about 10 lines from the beginning of the main paragraph, that is, the passage which begins:

It does not matter how they are calculated –

but if one goes back two or three sentences, one finds this -

For it is incontestable here that the moneys are paid in order to acquire a capital asset. The documents make it quite clear that these payments constitute the price payable on a purchase of land, and that appears to me to be the end of the matter.

Then his Honour goes on, “It does not matter”, and indeed, the passage continues after where our learned friends would have it stop, his Honour goes on to say, again coming back to the facts:

It does not indeed seem to me to be possible to say that they [these payments] are incurred in the relevant sense in gaining or producing assessable income –

and he finishes about 10 lines up from the bottom of the page -

The questions which commonly arise in this type of case are (1) What is the money really paid for?

If there is a statement of principle to be extracted from this passage, that is the statement of principle, not the passage relied on by our learned friends, so one can see that the cases sit happily together. Justice Edmonds, in a way, was not doing anything different in this case referring to Cliffs International than Chief Justice Barwick did in Cliffs International itself, referring back to Colonial Mutual, on the facts that Cliffs International, had they been before him, Justice Edmonds might have decided that case differently, but he had this case before him and on the facts of this case Cliffs International was not applicable. If the Court pleases.

CRENNAN J: Thank you, Ms Symon. Yes, Mr Steward, anything in reply?

MR STEWARD: Just four brief matters. Firstly, it was only Justice Davies in dissent who asked the right question in paragraph 107, and for the reasons that she gave in identifying the character of the advantage sought we respectfully submit that she was right to reach the conclusion she did. Secondly, in relation to Cliffs International and Colonial, they are not cases that can be reconciled on their face. At page 149 of Chief Justice Barwick’s judgment, his Honour the Chief Justice said:

It is also true that its promise to make the payments in the events which occurred –

and the ones in dispute –

formed part of the consideration given for the acquisition of the shares. But they were acquired without making the payments in question. The recurrent payments were not made for the shares –

stamp duty language –

though it might properly be said that they were payable as a consequence of the purchase of the shares.

That, in a sense, is our case in a nutshell. The payments that we made were not for the business, but we accept undeniably they were payments made in consequence of us acquiring the business and being the holder of the transmission licence, and that brings me to the third point. The liability here was not imposed upon the purchaser of the business simpliciter. It was imposed upon the person who was the holder of the licence and that person would be ascertained not in the year of purchase but in future years. So that in a very important sense, and with great respect to Justice Edmonds, his Honour was wrong to say that the liability was inherited. There was at the time of acquisition no present liability. The liability would arise in future years and be imposed on the holder at that time.

CRENNAN J: And travelled with the assignment.

MR STEWARD: Yes. It was a contingent liability and in accordance with Ballarat Brewing and other classic 51(1)/8-1 cases, the time for its incurrence would be when the contingency was made good in the future year, so the liability was not even incurred in the year in which the business was acquired. Finally, your Honours, we do place some significance upon the fact not that the liability was thrown into the contract as part of the asset sale agreement, but upon the particular means chosen by the State to solve

its regulatory problem. We can see what means were chosen in the very words of the section – 163AA:

The Governor in Council, on the recommendation of the Treasurer, may, by Order . . . in the Government Gazette, declare that specified charges . . . are payable as an impost by the holder of a licence –

So it is fundamentally important to understand in this case that the way in which the liability arises its form is that of a tax, not a fee for a service, not part of the deal for the sale of the business, but an impost chargeable to the holder of the licence. If the Court pleases, if anything else arises.

CRENNAN J: The Court will adjourn briefly to consider what course it will take.

AT 10.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.18 AM:

CRENNAN J: There will be a grant of special leave in this matter and the parties are reminded to check timetabling, having regard to the imminent holidays, with the Registrar as they go. Thank you. No more than a day, Mr Steward?

MR STEWARD: No more than a day, your Honour.

CRENNAN J: Do you agree with that, Ms Symon?

MS SYMON: I agree, your Honour.

CRENNAN J: Thank you.

AT 10.19 AM THE MATTER WAS CONCLUDED