Ashton Millson Investments Ltd & Ors v Colonial Ltd & Anor

[2004] HCATrans 348

[2004] HCATrans 348

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M314 of 2003

B e t w e e n -

ASHTON MILLSON INVESTMENTS LIMITED

First Applicant

AUTOMATIC MACHINES (NZ) LIMITED

Second Applicant

BARFLY LIMITED

Third Applicant

BEAUFORT STREET HOLDINGS LIMITED

Fourth Applicant

BISCETTI HOLDINGS LIMITED

Fifth Applicant

BONE MACHINE LIMITED

Sixth Applicant

BONE PALACE LIMITED

Seventh Applicant

BULWER STREET HOLDINGS LIMITED

Eighth Applicant

CAPTAIN KUPPE HOLDINGS LIMITED

Ninth Applicant

CATCHISM CAPITAL LIMITED

Tenth Applicant

CENTENNIAL PARK LIMITED

Eleventh Applicant

CHATTERTON GROUP LIMITED

Twelfth Applicant

CHIFLEY RESOURCES LIMITED

Thirteenth Applicant

CHINANSKI PARTNERS LIMITED

Fourteenth Applicant

CLEMENZA ASHTON LIMITED

Fifteenth Applicant

CLETUS CAPITAL LIMITED

Sixteenth Applicant

CORONIAL GROUP HOLDINGS LIMITED

Seventeenth Applicant

CRIMSON INVESTMENT LIMITED

Eighteenth Applicant

CURTIN INVESTMENT SERVICES LIMITED

Nineteenth Applicant

DE CLERK CAPITAL CORPORATION LIMITED

Twentieth Applicant

DOWNCAST PROMOTIONS LIMITED

Twenty-first Applicant

DREISER GROUP LIMITED

Twenty-second Applicant

EVERYTIME MANAGEMENT LIMITED

Twenty-third Applicant

FIFTH LESSON INVESTMENT LIMITED

Twenty-fourth Applicant

FIRST ALFONSO CAPITAL LIMITED

Twenty-fifth Applicant

FITZGERALD STREET HOLDINGS LIMITED

Twenty-sixth Applicant

FLASHING PROMOTIONS LIMITED

Twenty-seventh Applicant

FOLLOWS JAMES CAPITAL LIMITED

Twenty-eighth Applicant

GEORGE STREET LIMITED

Twenty-ninth Applicant

GIRDER INDUSTRIAL LIMITED

Thirtieth Applicant

GOTHIC HOLDINGS LIMITED

Thirty-first Applicant

GRAPEFRUIT HOLDINGS LIMITED

Thirty-second Applicant

GREAT SKY (NZ) LIMITED

Thirty-third Applicant

GREATER SOUTHERN INTERNATIONAL LIMITED

Thirty-fourth Applicant

GREEN BEACH LIMITED

Thirty-fifth Applicant

HONDO LIMITED

Thirty-sixth Applicant

HORSE FLY LIMITED

Thirty-seventh Applicant

HWANG HOLDINGS LIMITED

Thirty-eighth Applicant

HYDE PARK HOLDINGS LIMITED

Thirty-ninth Applicant

IMPERIOUS HOLDINGS LIMITED

Fortieth Applicant

INGRAM SECURITIES LIMITED

Forty-first Applicant

INNOCENT III LIMITED

Forty-second Applicant

INTERGLOBAL INVESTMENT CAPITAL LIMITED

Forty-third Applicant

JACKY M CAPITAL LIMITED

Forty-fourth Applicant

JD INDUSTRIAL LIMITED

Forty-fifth Applicant

JUSTINIAN HOLDINGS LIMITED

Forty-sixth Applicant

KARMO LIMITED

Forty-seventh Applicant

KENNEDY GROUP LIMITED

Forty-eighth Applicant

KULINSKI MOTT SECURITIES LIMITED

Forty-ninth Applicant

LABOR LEADERSHIP LIMITED

Fiftieth Applicant

LAKE STREET HOLDINGS LIMITED

Fifty-first Applicant

LANDSLIDE ROBOTICS LIMITED

Fifty-second Applicant

LORD UNDERTON LIMITED

Fifty-third Applicant

MACQUARIE STREET INVESTMENTS LIMITED

Fifty-fourth Applicant

MANNIX CAPITAL LIMITED

Fifty-fifth Applicant

MILL STREET CAPITAL (NZ)

Fifty-sixth Applicant

MODERN AGE LIMITED

Fifty-seventh Applicant

MORPHEUS LIMITED

Fifty-eighth Applicant

NATIONAL INDUSTRIAL ENTERPRISES LIMITED

Fifty-ninth Applicant

NINTH CIRCLE LIMITED

Sixtieth Applicant

NORTH INDUSTRIAL LIMITED

Sixty-first Applicant

OUTSIDE HOLDINGS LIMITED

Sixty-second Applicant

OUTWARD LOOKING LIMITED

Sixty-third Applicant

PANTHEISM GENERALLY LIMITED

Sixty-fourth Applicant

PERSEPHONE LIMITED

Sixty-fifth Applicant

PERTH STEAMSHIPS LIMITED

Sixty-sixth Applicant

PLENTY HOLDINGS LIMITED

Sixty-seventh Applicant

POUND PROFESSIONALS LIMITED

Sixty-eighth Applicant

PROUDMAN LIMITED

Sixty-ninth Applicant

QUICKSTYLE INVESTMENTS LIMITED

Seventieth Applicant

QUOKKA GROUP LIMITED

Seventy-first Applicant

REGIME CAPITAL LIMITED

Seventy-second Applicant

ROTTNEST ISLAND CASINO LIMITED

Seventy-third Applicant

SALMAS RESEARCH LIMITED

Seventy-fourth Applicant

SECOND CIRCLE LIMITED

Seventy-fifth Applicant

SEED CAPITALIST LIMITED

Seventy-sixth Applicant

SITH STYLE HOLDINGS LIMITED

Seventy-seventh Applicant

SMOKEBALL HOLDINGS LIMITED

Seventy-eighth Applicant

SPIDER SECURITIES LIMITED

Seventy-ninth Applicant

SQUIRE CAPITAL GROUP LIMITED

Eightieth Applicant

ST ANSELEM LIMITED

Eighty-first Applicant

ST AUGUSTINE INVESTMENT MANAGEMENT LIMITED

Eighty-second Applicant

STANDARD PARTNERS LIMITED

Eighty-third Applicant

STAPLETON RESEARCH PARTNERS LIMITED

Eighty-fourth Applicant

STARLESS SKY LIMITED

Eighty-fifth Applicant

STEP MANAGEMENT LIMITED

Eighty-sixth Applicant

STIRLING STREET HOLDINGS LIMITED

Eighty-seventh Applicant

STORMER LIMITED

Eighty-eighth Applicant

SWAN CAPITAL LIMITED

Eighty-ninth Applicant

TAURUS ONLINE LIMITED

Ninetieth Applicant

TECHNOTRONICS LIMITED

Ninety-first Applicant

GOTHIC SOFTWARE PTY LTD (ACN 090 377 137)

Ninety-second Applicant

and

COLONIAL LIMITED (ACN 074 042 112)

First Respondent

COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)

Second Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 SEPTEMBER 2004, AT 11.18 AM

Copyright in the High Court of Australia

__________________

MR B.H. TAYLOR:   May it please the Court, I appear for the applicants.  (instructed by Talbot & Olivier)

MR N.J. YOUNG, QC:   May it please the Court, I appear with my learned friend, MR P.W. COLLINSON, for the respondents.  (instructed by Freehills)

GUMMOW J:   Yes.

MR TAYLOR:   Your Honour, this is a case where it is submitted there should be a grant of special leave because of procedural irregularity attending the decision of the Victorian Court of Appeal.

GUMMOW J:   Say that again, would you?  Because?

MR TAYLOR:   Of procedural irregularity attending the decision of the Court of Appeal.  The situation is, your Honour, that there were two principal arguments of the applicants before the Court of Appeal, each on their own decisive of the appeal if successful.  The position is that despite there being full written and oral argument on the points, they were simply not dealt with in the Court of Appeal’s judgment.

It is well settled that a judge has an obligation to provide reasons for judgment of course, and I refer to the cases in my submissions in relation to that.  Further, there are a number of key purposes that underline the judicial obligation to provide reasons.  Those are summarised ‑ ‑ ‑

GUMMOW J:   You lost before Justice Warren, did you not?

MR TAYLOR:   Yes, we lost before Justice Warren, importantly on that point as well – there are two points – in relation to one point which I have describe as the quoted security point.  In fact, that matter was not dealt with by Justice Warren either, so we come to this Court where a matter advanced at first instance was not dealt with, the matter advanced before the Court of Appeal was not dealt with, and that is the position we are in.

HAYNE J:   And is this the point which is amplified at page 124 of the application book in paragraphs 15 and following?

MR TAYLOR:   That is correct, your Honour.

HAYNE J:   Why should we give leave unless it is demonstrated that the point was one capable of argument?

MR TAYLOR:   It seems from the decisions that I have seen on the subject – the QBE Insurance Case which I refer to seems to suggest that it might be that it has to be plainly arguable or arguable, that is the point you raise, interestingly, referred to within the Fletcher Construction Case referred to in my submissions, at paragraph 171 of that, which appears in the supplementary materials book at page ‑ ‑ ‑

HAYNE J:   Before you go to authority, is the point that you seek to agitate one that has any merit at all?

MR TAYLOR:   Yes.  In relation to ‑ ‑ ‑

HAYNE J:   Why?

MR TAYLOR: The reason it has merit is this. It turns on the section, section 1097A, and it turns on whether or not these securities were quoted or not. The fact of the ‑ ‑ ‑

HAYNE J:   And they were suspended?

MR TAYLOR:   Yes.

HAYNE J:   And Colonial was required, so you say, at 124 of the application book, paragraph 18, to apply for termination of listing on the first business day after the effective date, is that right?

MR TAYLOR:   That is right, your Honour.

HAYNE J:   And did that happen?

MR TAYLOR:   That did not happen.

HAYNE J:   No?

MR TAYLOR:   It was intended to happen but did not happen.

HAYNE J:   But was there any step to terminate, as distinct from suspend, listing before the effective date?

MR TAYLOR:   There was no step taken to terminate quotation at any time, even at the time that the company was removed from the official list in July 2000.  So there was never any step taken.  Despite the clear words of the scheme, there was no positive step taken to do so.

HAYNE J:   But the securities were removed from the official list some time in July, is that right?

MR TAYLOR:   The company itself was removed from the official list in July; remembering, of course, your Honour, that there is an official list of companies on the ASX and then separately there is a list of those securities which are quoted securities.  The situation in this case, your Honour, is that the only basis on which the discretion to refuse to register could possibly arise was if it was still alive under the provisions of Article 5.6 of Colonial’s constitution.  It had a discretion to refuse to register it.  The Listing Rules gave it that power. 

If you look to 8.10 of the Listing Rules you will see that there is no discretion referred there, of course, to refuse to register, but then what are provided in 8.10.1(h) is that there is such a discretion – and this is in relation to quoted securities – if it is less than a marketable parcel.  But, of course, that discretion does not arise unless we are dealing with quoted securities, given the preliminary words of 8.10.

So in order for there to have been any discretion to refuse to register, the securities must be quoted. If there was none, there was an obligation to register. The position then is, what does “quoted security” mean? “Quoted security” itself is defined in section 9 of the Corporations Law by simply making reference to section 1097A of the Corporations Law.  Remembering that physically on the event of suspension what actually occurs is that quotation physically ceases in relation to securities.  So what does 1097A provide?  Well, in 1097A(1):

A quoted security is a marketable security in a class of marketable securities listed for quotation on a stock market of a securities exchange.

So by the event of suspension on 1 June 2000, the effective date of the scheme, what, in effect, happened was that it ceased being listed for quotation, and we say the effect was that it no longer became a quoted security.  You then go on in 1097A(3) – and it seeks to save something from the operation of 1097A, which is, relevantly:

For the purposes of subsections (1) . . . securities or rights in a class of marketable securities or marketable rights are not taken to have stopped being listed for quotation on a stock market of a securities exchange merely because of a temporary suspension of quotation of securities or rights in that class.

It imports then this notion of what is a temporary suspension.  In the circumstances of this case the suspension, if it could be characterised as anything, could not possibly be characterised as a temporary suspension.  The provisions of the scheme, in effect, provided that from the date of suspension within a period of one and a half weeks, then Colonial securities would all be held by the Commonwealth Bank and they would have ceased to have been quoted.

GUMMOW J:   Well, does the point of construction come down to the phrase “temporary suspension” in 1097A(3)?

MR TAYLOR:   It is not as simple as that, your Honour.  You also then go on in 1097A(4), a point relied upon by my learned friends in their submissions in reply – and, of course, we do not have the Court of Appeal’s reasons for it ‑ ‑ ‑

GUMMOW J:   Do not worry about that.  We can pick things up.

MR TAYLOR:   Yes.  But 1097A(4) makes provision that:

If:

(a)      there is a suspension of the quotation . . . 

(b)      during the suspension, the issuing body in relation to the securities or rights ceases to be included in an official list of the securities exchange ‑

which, of course, did occur in this case only in July 2000 –

then . . . marketable securities or marketable rights in that class are taken to stop being listed for quotation on a stock market of the securities exchange when the issuing body ceases to be so included.

So what is sought to be said by my learned friends in relation to that particular point is that given that the company was removed from the official list in July 2000, that is the relevant date and the July 2000 date comes some considerable time after the decision was made by the directors of Colonial to refuse to register the transfers, in which case they say the power was alive at the relevant time

HAYNE J:   Now, in construing the words “temporary suspension of quotation”, at what point do you assess whether it is temporary?  At the point of suspension, or do you take to account events that later are known to have occurred?

MR TAYLOR:   We say the correct time is the time of suspension, and in this case at the time of suspension it was known exactly what was intended to happen.  The nature of ‑ ‑ ‑

HAYNE J:   It was known what was hoped and intended to happen, namely that there would be a favourable vote, is that right?

MR TAYLOR:   No, that had already occurred.

HAYNE J:   The vote had happened?

MR TAYLOR:   This is in a situation where the votes have already occurred.  The situation is the scheme has been approved and then what has to happen is the mechanics have to be carried out of simply the offers being made between Colonial and the Commonwealth, the acceptances and just all the necessary procedural requirements to transfer ownership of shares.  So all that happened.  There was a certainty that once this scheme had been approved by the court that these things would happen.  The only way that would not happen was if for some reason the scheme was amended.

HAYNE J:   Or if the court refused approval.

MR TAYLOR:   Yes, but I am saying in the event – remembering the suspension only occurred after the scheme was approved.

HAYNE J:   Approved by the court?

MR TAYLOR:   Approved by the court.  So it only arose at that particular time.  Another section within 1097A which is of direct application is 1097A(5).  As I mentioned earlier, the point the respondents seek to argue in relation to 1097A(4) is that that is specifically what happened in this case, in which case the date detailed there is the answer, which was a time after the decision to refuse to register was made.  In 1097A(5) though, a section not dealt with in the respondent’s submissions, it actually says:

Subsection (4) does not limit the circumstances in which marketable securities in a class of marketable securities . . . may be taken to have stopped being listed for quotation on a stock market of a securities exchange.

So it seems quite clear, we would submit, the intention of section 1097A(4) is to put in effect an end date by which quotation would certainly have ceased. Section 1097A(5), in effect, we say, provides that at any time in the continuum between the date of suspension onwards they might be said to have ceased. In the circumstances of this particular case we would say that the suspension occurs on the first day. The relevant time for consideration is then and the nature of the suspension is truly a permanent suspension.

That is but one of the two arguments that were advanced before the Court of Appeal but were not dealt with in its judgment.  The second argument that was raised was an argument that relied upon the provisions of clause 6.4 of the ordinary scheme.

GUMMOW J:   Now, that ordinarily would not be a special leave point, would it?

MR TAYLOR:   The construction of clause 6.4?

GUMMOW J:   Yes.

MR TAYLOR:   No, on its own it certainly would not, but in the circumstances what we have is an irregularity in the process.  We had a situation where there has been no reasons given in relation to that matter, as I have summarised in the submissions the cases relevant to that, but I mean there are four good reasons for why reasons for judgment are given and they are fundamental.

GUMMOW J:   We do understand these things.  Where do we find the text of clause 6.2?

MR TAYLOR:   Clause 6.2 and 6.4 are contained in the application book at page AB4.  You will see just as far as the operation of clause 6 is concerned, we are dealing in this case, your Honours, with Colonial ordinary shares and we are also dealing with paper-based transfers.  The further point to bear in mind in the reading of these clauses is that the transfers themselves are registrable transfers.  So in 6.1:

For the purpose of establishing who are Scheme Shareholders, dealings in Colonial Ordinary Shares will only be recognised if –

and then subsection (b) is the relevant one:

if registrable transmission applications or transfers in respect of those dealings are received on or before the Merger Record Date at the place where the Register is kept.

6.2      Colonial must register registrable transmission applications or transfers of the kind referred to in clause 6.1(b) by the Merger Record Date.

Now, the point we make about clause 6.2 and the nature of the scheme is the scheme, in effect, is an order of the court and should be looked at and carefully considered.  It really takes effect in accordance with its meaning and it is not appropriate, we say, to try and look elsewhere.  You have 6.2 which reads, we say, quite clearly:

Colonial must register registrable transmission applications or transfers of the kind referred to in clause 6.1(b) by the Merger Record Date.

It carries two things.  It carries an obligation to do a certain thing, which is register registrable transfers.  It also carries a timing issue, that is, that that should occur by the merger record date.

Now, submissions in relation to 6.1(b) and 6.2 were made and those were dealt with in the Court of Appeal, but when the Court of Appeal dealt with the argument they did not deal with 6.4.  The significance of that is quite considerable because within the judgment of the Court of Appeal they actually state at the very start, page 92 of the application book at paragraph 12:

The main thrust of the appellants’ case on appeal was that the provisions of clause 6 of the ordinary scheme solely determined entitlement to registration of transfers of Colonial shares in the period –

and they talk about the particular period, which was some seven days.  What we said below was that the scheme effectively had an exclusive code for dealings in Colonial shares over a short period of time, which effectively amounted to seven days.  What that refers to is the phrase “solely determined entitlement”; that is, “clause 6 . . . solely determined entitlement”.  That would appear to be a reference, of course, to clause 6.4 of the ordinary scheme, and it is a clause we relied on below and, in fact, was central to the submissions in relation to interpretation of clause 6.  It read:

For the purpose of determining entitlements to the Scheme Consideration, Colonial will, until the Scheme Consideration has been provided, maintain the Register in accordance with the provisions of this clause 6 –

no reference to also maintaining it in accordance with the Articles of Colonial –

and the Register in this form will solely determine entitlements to the Scheme Consideration.

We say on a proper construction of 6 – absent 6.4 it has that effect.  We say 6.4 makes it very clear that it is to have that effect.  So the very real difficulty we strike is that clause 6.4 was not dealt with in the reasons.  In fact, it was omitted when the provisions of clause 6 were summarised in the Court of Appeal’s judgment.  They, in fact, did not include clause 6.4  The fact that these matters were before the court and fully argued is not in dispute.

GUMMOW J:   Does the current Corporations Act include provisions in the same text as 1097A of the law?

MR TAYLOR: The Corporations Act does not itself, but its regulations do. Its regulations do. Off the top of my head I am having some difficulty identifying what they are. At page 110 of the application book there is reference made at footnote 2 to the fact that, in fact, it is Regulation 7.11.03(3) of the Corporations Regulations 2001.

GUMMOW J:   Thank you.

MR TAYLOR:   Those are my submissions.

GUMMOW J:   Yes, thank you, Mr Taylor.  Yes, Mr Young.

MR YOUNG:   If the Court pleases.  Our learned friend started with a proposition that neither Justice Warren at trial nor the Court of Appeal had dealt with these arguments.  That is wrong.  Justice Warren dealt explicitly with both arguments.

GUMMOW J:   Where do we see that?

MR YOUNG:   In relation to the suspension argument, she dealt with that at AB28, paragraph 54.  Importantly, the second‑last sentence at page AB28 contains a finding that:

the shares remained listed for quotation albeit suspended at all relevant times up until July 2001.

And that was the position.  Her Honour dealt with the 6.4 argument at several pages.  Firstly, at page 21 she dealt with the exclusive code argument in paragraph 31 and in paragraph 32 she again noticed the suspension argument that she later dealt with.  Then at page AB29 her Honour dealt with the clause 6.4 argument, specifically in paragraph 56 and across the page again at paragraph 58.

GUMMOW J:   Just a minute.  Yes.

MR YOUNG:   Now, it is our submission that the point was dealt with by Justice Warren ‑ ‑ ‑

GUMMOW J:   What about the 1097A point?  Is that dealt with otherwise than at the bottom of AB28?

MR YOUNG: Save for an anticipatory reference at page AB26, paragraph 49, no, your Honour. But it is not at all clear that section 1097A was referred to at all at trial. In the Court of Appeal section 1097A was not referred to in the applicants’ written submissions filed with the Court of Appeal and it received a very brief mention in oral argument only before the Court of Appeal. This was no more than a footnote to the argument presented to the Court of Appeal, but is now being elevated as if it was a central part of the argument.

GUMMOW J:   Well, it has been so elevated.  What is the answer to 1097A?

MR YOUNG:   The answer to it is ‑ ‑ ‑

GUMMOW J:   If there is one.

MR YOUNG:   To the construction?  Well, the answer is this.  The applicants elide two concepts:  actual quotation and listed for quotation.  The critical term is “listed for quotation”.  The Court sees that in 1097A(1):

A quoted security is a marketable security in a class of marketable securities listed for quotation on a stock market of a securities exchange.

That is the key expression, “listed for quotation”. This becomes relevant simply because of the form of the ASX Listing Rule 8.10.1. At page AB45 it is set out. List Rule 8.10 refers, in the last few words of the third line, to “quoted securities”. It is not otherwise defined in the Listing Rules. So one then, under Listing Rule 19.3, picks up the Corporations Law definition, which takes one to 1097A.  But the critical thing to bear in mind is that the question is whether the relevant ordinary shares of Colonial were shares “in a class of marketable securities listed for quotation on the stock market”, and they were so listed at all relevant times and Justice Warren so found.

Now, our learned friend’s argument really amounts to this.  Despite the fact that they remained listed for quotation, although suspended from actual quotation, the alleged inevitability that they would be removed from the list for quotation means that you could essentially ignore that fact and treat a suspension as the equivalent of a de-listing for quotation.

GUMMOW J:   Yes, 1097A(1) says a quoted security is one listed.

MR YOUNG:   Yes.

GUMMOW J:   And then subsection (3) says that there is not a loss of the character of being listed “merely because”, et cetera.

MR YOUNG:   Yes.  Subsection (4) is not really answered by what has been advanced for the applicants.  It makes no reference to temporary suspension.  It simply says:

If:

(a)      there is a suspension of the quotation –

which Justice Warren found, and:

(b)      during the suspension, the issuing body . . . ceases to be included in an official list –

which she also found –

then, for the purposes of subsections (1) and (2), marketable securities or marketable rights in that class are taken to stop being listed for quotation . . . when the issuing body ceases to be so included.

Subsection (4) was directly applicable.

Now, it is not entirely correct that section 1097A is replicated in the current legislation. The form of the relevant provisions in Part 7.11 and in the Regulation have changed somewhat, so we are not dealing with the same verbiage.

GUMMOW J:   Yes, thank you, Mr Young.

MR TAYLOR: In relation to the suggestion that Justice Warren did not deal with either of the appeal grounds that are now referred to, if I did say that – I do not believe I did but if I did – it was only intended that section 1097A was the particular ground that was not dealt with, we say. In fact, in the relevant section, application book 28, it is quite clear that there is a finding made in relation to listed for quotation, which relies in no way in an analysis of section 1097A. It is apparent there is no reliance made on that particular point and it was not referred to.

As far as the interpretation of section 1097A is concerned, the point which was not dealt with in the respondents’ submissions in writing, and has still not been dealt with, we say, is 1097A(5). Section 1097A(5) provides specifically that:

Subsection (4) does not limit the circumstances in which marketable securities in a class of marketable securities, or marketable rights in a class of marketable rights, may be taken to have stopped being listed for quotation on a stock market of a securities exchange.

So it is intended that the section does not limit it.  So it could be at any date.  We say it is the effect of it, it is to be an end date.  At the end of the day, of course, about this point, we say, of course, the point has to be arguable.  If there has been a procedural irregularity, as we say there has been, and it is a matter of whether or not the point is arguable, and we suggest it clearly is.  Those are our submissions.

GUMMOW J:   In respect of the two grounds developed in argument by the applicant as the grounds which it is said were not dealt with by the Court of Appeal of Victoria, we are of the view there is insufficient prospect of success to warrant a grant of special leave.  In saying that we have regard to the substance of the grounds put forward.

In respect of the other grounds put forward in a draft notice of appeal, we are of the view that the Court of Appeal was correct.  Accordingly, special leave is refused with costs.

We will adjourn to reconstitute.

AT 11.46 AM THE MATTER WAS CONCLUDED