Amaca Pty Limited (Under NSW Administered Winding Up) v Booth & Anor; Amaba Pty Limited (Under NSW Administered Winding Up) v Booth

[2011] HCATrans 152

[2011] HCATrans 152

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S6 of 2011

B e t w e e n -

AMACA PTY LIMITED (ACN 000 035 512) (UNDER NSW ADMINISTERED WINDING UP)

Applicant

and

JOHN WILLIAM BOOTH

First Respondent

AMABA PTY LIMITED (ACN 000 387 342) (UNDER NSW ADMINISTERED WINDING UP)

Second Respondent

Office of the Registry
  Sydney  No S7 of 2011

B e t w e e n -

AMABA PTY LIMITED (ACN 000 387 342) (UNDER NSW ADMINISTERED WINDING UP)

Applicant

and

JOHN WILLIAM BOOTH

First Respondent

AMACA PTY LIMITED (ACN 000 035 521) (UNDER NSW ADMINISTERED WINDING UP)

Second Respondent

Applications for special leave to appeal

GUMMOW J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 JUNE 2011, AT 9.48 AM

Copyright in the High Court of Australia

____________________

MR J.T. GLEESON, SC:   May it please the Court, I appear with my learned friend, MR N.J. OWENS, for the applicant in matter S6/2011 and for the second respondent in matter S7/2011.  (instructed by Holman Webb Lawyers (S6/2011) and DLA Piper Australia (S7/2011))

MR G.M. WATSON, SC:   May it please the Court, I appear with MR J.C. SHELLER for the applicant in matter S7/2011 and the second respondent in matter S6/2011.  (instructed by DLA Piper Australia)

MR D.F. JACKSON, QC:   May it please the Court, I appear with my learned friend, MR S. TZOUGANATOS, for the first respondent in both matters.  (instructed by Turner Freeman Lawyers)

GUMMOW J:   Is there any agreement between you as to division of effort?

MR WATSON:   Yes.  We were going to confine ourselves to 20 minutes.  Mr Gleeson would go first.

GUMMOW J:   Very well.  Thank you.  Yes, Mr Gleeson.

MR GLEESON:   Your Honours, could I deal with causation first and duty second and ask your Honours perhaps to go straight to our bundle of materials which contain the two critical ‑ ‑ ‑

GUMMOW J:   The draft notices of appeal fix upon duty, breach and causation, do they not?

MR GLEESON:   Yes.  Our strongest point is causation.

GUMMOW J:   I would not have thought so.

MR GLEESON:   It is the most important point in terms of the larger resolution of asbestos cases in the Dust Diseases Tribunal.  There is a point on duty, but causation is this point.

HEYDON J:   Which part of your materials?

MR GLEESON:   Tab 3 has Professor Stapleton’s article which deals with the causation issue.

GUMMOW J:   What does it tell us?

MR GLEESON:   It tells us about the substantial discrepancy which has opened over at least the last 10 years between the approach in the highest courts of the United Kingdom and the approach in the Dust Diseases Tribunal.  Essentially, in the United Kingdom, based upon the same body of international knowledge in medical science, the law has candidly recognised that one cannot prove on the balance of probabilities by traditional methods that particular exposures to asbestos have caused mesothelioma and as a result have adopted a special Fairchild rule.  Professor Stapleton’s point is that the Dust Diseases Tribunal, instead of candidly recognising that issue, a form of expert evidence has been treated as establishing a proposition.  Your Honours will see this in the article on pages 115 and 116 of the bundle near the middle, that:

mesothelioma victims found success in Australian courts, not by the transparent judicial creation of a special Fairchild-type rule, but by persuading state courts to accept certain forms of expert evidence.

The essence of this expert evidence which Professor Stapleton says, and we agree, seems to outstrip the limits of medical knowledge is to this effect, that before the event one cannot know anything more than risk, but after the event if a person has contracted mesothelioma, the law concludes that every exposure to asbestos fibre played a necessary part in the actual bringing about of the disease.  That conclusion that every fibre is and played a necessary part in fact is where the expert evidence has outstripped the basis of medical knowledge.

HEYDON J:   The point of law, is it, is this, that there is no evidence to support the reasoning employed by Judge Curtis?

MR GLEESON:   Yes.  On page 116, in the first full paragraph, Professor Stapleton suggests, and we respectfully adopt, that the focus which this Court in Amaca v Ellis applied to the question of traditional proof and distinction between increase in risk and proof on the balance of probabilities is one that the Dust Diseases Tribunal is not adopting and one which the Court of Appeal is not correcting.  That is the central point on causation.  I can show your Honours where in some of the evidence the elision between risk and cause has crept in and which the Court of Appeal is sanctioning in this State.  Perhaps if I just gave your Honours an example from Professor Henderson in the main application book; at pages 8 to 9 his evidence is set out.

GUMMOW J:   Page?

MR GLEESON:   Pages 8 to 9, paragraphs 25 to 26 of the trial judge’s decision.  He sets out a medical theory in paragraph 25 and in paragraph 26 he expresses a generalised conclusion:

all asbestos exposure, both recalled and unrecalled, will contribute causally towards the ultimate development of a mesothelioma.

That is the trial judge’s only examination of Professor Henderson’s evidence.  Let me show what Professor Henderson, in fact, also said.  If your Honours would go to page 108 at paragraph 50.  Professor Henderson was, in fact, basing not the whole, but a substantial part of his reasoning upon something referred to as the “Peto Model”.  The Peto Model is the international work which the Supreme Court in the United Kingdom considered in March this year and said does not prove cause and one sees ‑ ‑ ‑

GUMMOW J:   Is that in Sienkiewicz [2011] 2 WLR 523.

MR GLEESON:   Yes, it is in Sienkiewicz and, in particular, the paragraph references that are critical are:  Lord Phillips at paragraphs 18 and 19; the annexure summarising the state of international learning in this area to his judgment; and then particularly Lord Rodger at paragraphs 133 to 140, in particular, in paragraph 133, Lord Rodger having referred to the “rock of uncertainty” and at paragraph 135E that medical science has not advanced in the last decade, at 140, critically proposes the four ways a legal system could respond to this present state of medical evidence, they being, firstly, adhere to the traditional standard of proof, secondly, some form of reversal of onus, thirdly, some theory of doubling of the risk or, fourthly, the English approach, which is material increase in risk is good enough.  We submit what has occurred in the DDT is that while purporting to adopt the traditional approach, in fact, something like a Fairchild exception has crept into New South Wales law.

GUMMOW J:   Was the UK decision one that turned on their Compensation Act 2006?

MR GLEESON:   It turned on the common law of Fairchild.  It discussed how the Compensation Act related to the common law.  The effect of the Compensation Act was to remove that part of Fairchild which created several rather than whole liability for defendant tortfeasors.  However, the court was essentially grappling again with the common law.  In confirmed, in fact, that the Compensation Act did not alter the common law principle and did not mandate adoption of material increasing risk as the test.  It simply said where the common law applied it as the test, then these would be the quantification consequences.  Your Honours, the part I just wish to conclude on, Professor Henderson at page 108 of the main book, was that having referred to the Peto Model, at about line 25 he said that what:

emerged from the model was that “when there are multiple asbestos exposures, each contributes to cumulative exposure and hence to the risk –

We agree, and then he says –

and causation of mesothelioma –

It is that leap between risk and causation where the issue arises.  Could I show your Honours just in his other evidence ‑ ‑ ‑

HAYNE J:   You describe it as a “leap”, but there is that evidence, you may say the evidence on examination should not be accepted, but I thought you said in answer to Justice Heydon your point ultimately was a no evidence point.

MR GLEESON:   There was no underlying evidence of a true expert character displaying specialised knowledge to reach the proposition that one can leap from saying in advance there is an increase in risk, to saying after the event for that plaintiff every fibre that person was exposed to over 50 years, in fact, was a necessary step in that person suffering mesothelioma.  To the extent the expert was probed a little on that, if I could just show your Honours, at page 122 in his own report, this is Professor Henderson, the fourth last bullet point on that page said that:

Given the no-threshold model –

that he adopted –

exposures above background will, following an appropriate latency interval, confer an increment in risk –

Just finally with this expert, the last part was page 133 of the main book where, in the material extracted, the question put to him was:

are you able to say whether or not that particular risk of that last
exposure came home?

A.       No.  I’d say particularly the risk from all of his exposures came home because the model which I adopt –

It all goes back to the model.  Could I just draw attention to that last bit of the answer –

so I think that all of the asbestos fibres that he’s inhaled, or at least a proportion of them, will contribute to the risk and to the ultimate development –

So when gently asked the questions, it is quite clear he does not assert that there is a basis in medical knowledge fulfilling the gap which the English courts have recognised.  Your Honours, that is all I wish to say on causation, if that is convenient.

GUMMOW J:   Yes.

MR GLEESON:   In relation to duty, the only matter I would put before your Honours is this, to take your Honours to two pages.  Firstly at page 154 at paragraph 192 we have the finding which will now be treated as

the law in New South Wales as to the appropriate approach to duty and about five lines from the bottom the question posed is:

The first [question] was whether there was available to a specialist manufacturer of asbestos products, such as [the applicants], information making it foreseeable that exposure to asbestos dust might involve risks to the health of workers so exposed.

That is the prism through which duty has been identified and if that prism is adopted, the law in New South Wales can perhaps be seen back at paragraph 180.  That is now the statement of the duty of care.  It means that any person who supplied asbestos products, that is, finished products containing asbestos, since 1953 owes a duty of care to a class of persons so defined.  The issue we had respectfully sought to raise is whether, so framing the duty at that level, it had failed to consider the sorts of matters we set out in our submissions at page 185.  That is what I wish to put, your Honour.

GUMMOW J:   Now, Mr Gleeson, you have indicated several times that your client regards this as something in the nature of a test case because it is a bad, you say, precedent.  If you were successful in obtaining a grant of special leave, it would be on terms that your client not disturb the cost orders below?

MR GLEESON:   Your Honours, I can put nothing against your Honours imposing an appropriate cost condition upon the grant of special leave if that ‑ ‑ ‑

GUMMOW J:   And bear the costs of the first respondent in this Court, in any event?

MR GLEESON:   Your Honours, I can put nothing against your Honours imposing those conditions.

GUMMOW J:   Very well.  All right.  We will hear from Mr Watson.

MR WATSON:   Your Honours, there is nothing I really wish to add to that on causation or duty, but may I just mention the impact of this decision, although it might appear to be limited to the Dust Diseases Tribunal.  Within the Tribunal itself there is a mechanism so that the decision is picked up and used again and again and it has been this very week.  Moreover, the Dust Diseases Tribunal is held out as a specialist Tribunal and its decisions are cited not only in New South Wales, but around Australia – I have practical personal experience of this – cited to the trial courts and the intermediate appeal courts around Australia as being the

product of some particular specialist learning.  It is an important decision Australia wide.  That is all I wanted to add, your Honours.

GUMMOW J:   The question of costs?

MR WATSON:   We are in the same position as Mr Gleeson, of course.

GUMMOW J:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I deal first with the question of causation.  Our learned friends ask or suggest to the Court that the position in the United Kingdom is one which represents perhaps the truer position, if I can put it that way, and that there is a difference between that and the position here which requires this Court to consider the matter.  Your Honours will see, if one looks for example at the reply on behalf of Mr Watson’s client, one sees at page 249 in paragraph 2 the rather beguiling question:

What can explain the difference between the result in the UK cases and the result in this case?

Well, an answer, your Honours, might be the difference in the evidence for a start, that is the case here, because in this case – and I will come to the detail of it in just a moment – there was evidence accepted by the trial judge from witnesses whose expertise was not challenged and the findings were not set aside on appeal, that the condition of the first respondent was caused by the work that he undertook and for which the applicants would otherwise be responsible.  That was not the case, your Honours, in the United Kingdom.  If one looks at Sienkiewicz at paragraph 18 per Lord Phillips, one can see in paragraph 18, and I will go on to paragraph 19 as well, that at paragraph 18 Lord Phillips referred, about the sixth or seventh line, to say:

It is not possible properly to consider the issues raised by this appeal without reference to what is known about mesothelioma.

He referred to a summary in many cases and his own summary in Bryce and then went on to say –

The cases under appeal did not involve the introduction of detailed evidence of what is known today about mesothelioma, proceeding on the basis that findings in previous cases could be taken as read.  There was, however, introduced in evidence a case control study by Peto and Rake –

Your Honours will see what is said about that in the remainder of the paragraph.  Then his Lordship went on to say:

In these circumstances I have turned to recent judicial authority in order to augment the information contained in Peto and Rake’s study.

Your Honours will see what is said in relation to that in the remainder of paragraph 19.  So that one has a situation, your Honours, where there was a construct, if I can call it that, in Fairchild amended, as you will see, in paragraph 1 of Lord Phillip’s reasons by reference to the Compensation Act 2006 and the test as it is set out in the last sentence of paragraph 1 of those reasons for judgment.  That is a very different situation from that obtaining here because there was evidence from four medical specialists to the effect that mesothelioma was caused by the cumulative effect of ingestion of asbestos. 

The applicants called no evidence on this issue, none at all.  The evidence is summarised by the primary judge at page 8 of the application book in paragraphs 25 to 38.  These are not witnesses, your Honours, proceeding from a theory.  They are witnesses who are people of very considerable expertise and their evidence, your Honours, we will see, if one commences at paragraph 25 – you will see Professor Henderson, in the passage that has been referred to in part, arriving at the conclusion in paragraph 26 that:

“It is, I think, almost universally accepted that all asbestos exposure, both recalled and unrecalled, will contribute causally towards the ultimate development of a mesothelioma”.

Could I invite your Honours to note, if one goes back to paragraph 24, that three of those witnesses had given evidence of their own experience in relation to the ingestion of asbestos from working with brake linings.  You will see Professor Musk’s evidence referred to in paragraph 27 commencing and then paragraph 28, the top of page 10:

“It’s a proven risk – and most people, as far as I know, are prepared to say that it’s a causative association.”

Your Honours will see Dr Heiner’s evidence, top of page 11, and then paragraph 36 with Dr Leigh:

once the disease had occurred, the accumulating risk had come home, and that it was the accumulation of fibres that caused the disease in the particular case.

Whatever might be the position in the United Kingdom, the position in Australia, or the position in this case perhaps I should say more accurately, was that there was evidence from persons, four persons, very qualified on the issue whose expertise was not challenged and against whose evidence no other evidence was cause to say that, well, entitling the judge to say and the Court of Appeal to say the judge was entitled to say, indeed, right to say on that evidence the condition of the first respondent was caused by his work in dealing with the brake lining.  There is really, your Honours, with respect, no issue.  It is a false issue to suggest that there is an issue about causation which arises in this case. 

Now, maybe this case is one that will have effect in relation to future cases, but it is a question of evidence.  If different evidence comes, then the judges are entitled to look at the evidence that emerges in those cases.  So our submission would be, your Honours, that there is in reality no issue in relation to causation raised by our learned friends.  Your Honours, could I just say that this aspect was dealt with by the Court of Appeal and could I refer, for example, to page 121, paragraphs 84 and following and then, your Honours, if one goes to page 133, paragraph 118, the second line:

As has been adequately demonstrated above, there was evidence (from Professor Henderson among others) which provided a more than adequate basis for a conclusion that all inhalation of asbestos contributed to the injury. 

Then your Honours will see paragraph 119 which elaborates upon that a little and makes clear that this was a case where, as is said in the second line on page 134:

It was open to his Honour to conclude that Professor Henderson, for example, did not use risk synonymously with cause and to conclude that Professor Henderson did not “prefer” to describe the state of medical science in terms of risk; indeed, he described “risk” as “a very bad term”.

So, your Honours, that is what we would want to say about the causation aspect of it and could we say, your Honours, that one notes the observation that was made by the primary judge in this case that there was no evidence which was adduced which suggested that the situation had changed since the case of Plane nearly 10 years before.

Your Honours, could I come then to the question of duty of care.  Our learned friend, in relation to duty of care, took the Court to paragraph 192 in the Court of Appeal’s reasons and, your Honours, that is at page 154.  What your Honours will see is that the passage that is being dealt with at paragraph 192 and, in particular, the passage which commences about five lines from the bottom of the page, is that the court was there dealing with some criticisms that were being made by the present applicant

and, if one goes to the previous page, what was being dealt with, as is apparent from the heading three lines from the bottom of the page, is a question of foreseeability.  The judges were simply setting out the two issues that they said the criticism confused.  Your Honours will then see, if you go to page 155, that it is said, about line 19:

No issue is raised on the appeal (or it appears below) as to the knowledge of Amaca or Amaba in respect of the industrial processes engaged in by automotive mechanics removing and fitting brake linings.  There is no complaint that his Honour could not have found that it was reasonably foreseeable to Amaca and Amaba that automotive mechanics undertaking that task would be exposed to asbestos dust.

Your Honours will see from the next sentence that it remains dealing with that question of foreseeability.  Your Honours, so far as the duty of care was concerned, the complaint made in the written submissions appeared principally to be that the judge had not descended to greater detail in the definition of the duty of care, and we have referred to a number of matters in that regard in our written submissions including passages from your Honours Justice Gummow and Justice Hayne in Vairy and also of Justice McHugh in Graham Barclay Oysters.

Your Honours, if one goes to page 150 of the application book and to paragraph 180, one sees there, in our submission, the Court of Appeal putting the question of duty of care in an entirely orthodox way, your Honours, something that, in our submission, is a reflection in 2011 or 2010, whenever the judgment was given, of the situation which has derived from Donoghue v Stevenson, nothing more, nothing less.

Our submissions are, your Honours, that one accepts there is a difference between Australia and England on the duty of care, so what?  It does not really that this is a case for the grant of special leave when the basis on which the Australian case is decided is different from that and different in evidence.  It is clearly case of evidence – even the judgments in the Supreme Court of the United Kingdom recognise that things may change if the evidence in the case is different.  Your Honours, in our submission, this is a case where there is no basis for the grant of special leave, with respect.

GUMMOW J:   Mr Gleeson.

MR GLEESON:   Just two matters, your Honour.  In relation to the submission that the decision in the United Kingdom was simply referring to earlier judgments, the position in fact, as set out in the annexed to Lord Phillip’s judgment at pages 77 to 79 of our bundle, shows that the

earlier judgments were a decision of Lord Justice Rix in 2011, that is the Trigger litigation, page 77, letter A, then at page 78, letter G, some findings in the 2008 litigation where the judge there had heard evidence from the five internationally recognised experts in the field.  Our point is that none of the evidence in this case identified a body of medical knowledge for some reason available only to Australian experts and not to those internationally. 

Your Honours, the only other matter was in relation to the importance of the distinction between risk and cause.  Mr Jackson took you to page 133 of the main book in the Court of Appeal’s judgment and took you to paragraph 118.  That was that evidence of Professor Henderson where I noted that he had given the game away by saying that they all contribute, or perhaps a proportion of them do, but, really, the issue of law for your Honours might be crystallised by whether paragraph 119 is an available and correct conclusion in the light of the evidence, because what Justice Basten has done is said, on the one hand one can speak of risk and everything his Honour says there about risk is supported by the evidence, the risks have various steps to them, but at the foot of the page his Honour then says:

If the risk materialises –

this is a risk that had five contingent factors to it –

a causal connection may be inferred.  Professor Henderson’s evidence accepted [it] –

Our short point is, what is the basis in expert evidence to leap from risk to a conclusion that every fibre was necessary?  If your Honours please.

GUMMOW J:   Mr Watson.

MR WATSON:   May I take your Honours in the application book to page 36.  Mr Jackson’s submissions were put on the basis that the trial judge had looked at the medical evidence and perhaps had found something satisfying in terms of perhaps a biological process to explain causation, but it is not how the trial judge decided the matter.  At page 36 in paragraph 137 one can see that the trial judge was speaking about a background risk and an additive risk which was described as 44 per cent.  May I just explain that.  That is from all brake work, Amaca, Amaba, plus other manufacturers.  This was drawn together at page 43.  The heading in about the middle of that page “Specifically” is dealing with causation.  These are the specific findings of the trial judge on causation and, in our respectful submission, they relate only to risk.  The first few paragraphs are introductory.  Paragraph 166 is a calculation once removing the other brake manufacturers so that it is said that 10 per cent of the risk or additional risk came from Amaca’s products.

GUMMOW J:   The heading above paragraph 161 is “Causation”, is it not?

MR WATSON:   Yes, “Conclusions on Causation”, “Generally” and then above 163 “Specifically”.

GUMMOW J:   Then “Foreseeability” starts at 173.

MR WATSON:   Yes.  So, your Honours, these are the specific findings on causation.  They do not refer to any biological process or the evidence of those doctors.  It refers to a 10 per cent increase in risk from Amaca’s products and, at paragraph 167, a 20 per cent increase in risk from Amaba’s products.  Then there are a couple of paragraphs which intervene.  We say that his Honour the trial judge got those wrong.  Then there is the conclusion at paragraph 172 and it is based upon risk, not cause.  Your Honours have already been taken there three times, but I want to take your Honours back to application book page 133. 

Your Honours will see that paragraph 117 of the Court of Appeal’s decision records the submission that what was being dealt with was risk, not cause and the next few paragraphs are the answer to that submission from the Court of Appeal.  Your Honours, again, you have been shown it before but we would ask your Honours to look at the very last phrase of Professor Henderson’s answer.  This is the item of evidence selected by the Court of Appeal to justify the finding of some kind of causal basis rather than risk basis.  Professor Henderson adds at the end, after speaking explicitly of risk with “and to the ultimate”, et cetera.  That phrase was given a lot of work to do.  In the next paragraph, 119, the Court of Appeal ruled that that was a distinction between risk and cause, that is, the addition of that phrase alone ‑ ‑ ‑

GUMMOW J:   Was the question asked in‑chief?

MR WATSON:   No, cross‑examination, I believe.  Then on that page alone, page 133, in paragraph 119 ‑ ‑ ‑

GUMMOW J:   Was there any re‑examination on it?

MR WATSON:   I do not recall.  In paragraph 119 following upon that and distinguishing risk from cause, Justice Basten refers on that page alone no less than on six occasions to the concept of risk.  At the heart of this case it was decided ‑ ‑ ‑

HAYNE J:   The critical step is taken in the clause commencing last on page 133:

If the risk materialises, a causal connection may be inferred.

If the evidence were to be understood properly as an absolute and universal proposition, I think that the conclusion would be if the risk materialises a causal connection must be inferred.  That is, if the premise is one of universality of connection, the inference follows.

MR WATSON:   Yes, and that is what is denied by Professor Henderson in that answer.  He speaks first of risk and then he says, even of all those fibres, that perhaps only a proportion of them contributed.  So that, in fact, universality is out the window.  Your Honours, this was a case decided on the basis of risk.  It is indistinguishable in that sense from the issues raised in cases like Sienkiewicz.  May it please the Court.

MR JACKSON:   Your Honours, may I add one word in the light of our learned friend’s expansive reply and it is this.  If this is a case in which, as they suggest, it has been decided on the basis of risk, although that small passage that is extracted says the opposite, then, in our submission, it is a case where the result would still be the same.

GUMMOW J:   We will take a short adjournment.

AT 10.25 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.38 AM:

GUMMOW J:   In each application, upon the condition as to costs in this Court indicated in oral argument and non‑disturbance of the orders for costs below in any event, there will be a grant of special leave.  It will be in terms found as ground 2 at page 226, and this will apply to the reformulation of the other notice of appeal as well.  Ground 2 will be the sole ground of appeal.  Ground 2(b) at page 226, however, will be qualified by striking out the words “inadmissible or” so that (b) will read:

declining to correct, or alternatively by approving, the primary court’s reliance upon insufficient expert opinion evidence in respect of causation.

We should alert the parties that in the preparation of their argument they should understand that that ground 2 is understood by us as inviting examination of the question whether there was evidence that if a person developed mesothelioma, each and every exposure to asbestos was a contributing cause of the development of that disease.

MR GLEESON:   Could I raise one matter, your Honour, in clarification to avoid our confusion?

GUMMOW J:   Yes.

MR GLEESON:   If your Honours could go to page 187, we had identified two aspects to causation in paragraph 34.  I understand your Honours grant of leave clearly relates to 34a.  Paragraph 34b was the reverse question which was whether if ‑ ‑ ‑

GUMMOW J:   Well, this is an evidentiary ‑ ‑ ‑

MR GLEESON:   Yes.  I just wish to clarify whether your Honours were permitting us to do 34b or not?  The link to 34a was the argument that assuming a warning had been given, did one need to find that the warning would have led to zero exposure consistent with the primary theory?  I just raise it for your Honours’ consideration so we are clear.

GUMMOW J:   You do not have 34b and you both accept the cost conditions?

MR GLEESON:   Yes, your Honour.

GUMMOW J:   Very well.  We will adjourn to reconstitute.

AT 10.41 AM THE MATTER WAS CONCLUDED