Austin & Anor v Commonwealth of Aust

[2002] HCATrans 116

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M10 of 2001

B e t w e e n -

ROBERT PETER AUSTIN

First Plaintiff

KATHRYN ELIZABETH KINGS

Second Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Directions Hearing

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 15 APRIL 2002, AT 9.31 AM

(Continued from 21/3/02)

Copyright in the High Court of Australia

MR M.K. MOSHINSKY:   If your Honour pleases, I appear for the plaintiffs.  (instructed by Allens Arthur Robinson)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth:   If your Honour pleases, I appear for the defendant with my learned friend, MS M. SLOSS.  (instructed by the Australian Government Solicitor)

MR B.M. SELWAY, QC Solicitor‑General for the State of South Australia:   If it please your Honour, I appear for the Attorney‑General for South Australia intervening.  (instructed by the Crown Solicitor for the State of South Australia)

HIS HONOUR:   Now, ladies and gentlemen, what is the position?  Mr Moshinsky.

MR MOSHINSKY:   Your Honour, the plaintiff filed last Thursday a document which is substantially agreed between the plaintiffs and the defendant.

HIS HONOUR:   Yes.

MR MOSHINSKY:   Since filing that document, there are a number of very minor matters that have been picked up, both by the plaintiffs and the defendant, and they are agreed.  But subject to that, the document is agreed between the parties.

HIS HONOUR:   Yes.  Now, have you seen the submissions by the Solicitor for South Australia?

MR MOSHINSKY:   Yes, I have, your Honour.

HIS HONOUR:   What, if anything, do you say about that?

MR MOSHINSKY:   The plaintiffs do not wish to make any submissions on that.

HIS HONOUR:   May I raise two matters which are perhaps of no moment, perhaps they are.  If I take you to paragraph 11 of the case stated and contrast that with paragraph 25, we find in paragraph 11 that AAS31 applies to the preparation of consolidated financial reports.  I assume, but do not know, that that accounting standard does not apply by operation of statute; rather, that the position is akin to what is said in paragraph 25, that certain reports or statements are prepared in accordance with that accounting standard.

Now, in the end nothing may turn on this – I do not know – but I was struck by the contrast.  I was struck by the fact that I do not think I am the only one who has resorted to this form of drafting to obscure what is the real difficulty of knowing why it applies.  Now, it is a matter for the parties, but it is likely that other members of the Court will at some stage say, “Yes, the accounting standard applies.  Does it apply by statute?  Where do I find it?”  Perhaps there is no answer to be made immediately.

The second matter to which I draw attention is paragraph 71.  Again, a resort to passive voice drafting in the second sentence of paragraph 71 where it is said that the actuary is expected to exercise professional judgment in a manner that satisfies certain things.  Perhaps that is so.  I would have thought that the more relevant question is to know by whom that is expected rather than the fact that someone unspecified harbours within his or her breast this wonderful expectation that the actuary will do certain things in accordance with professional standards.

Perhaps in the end, Mr Moshinsky, all I am doing is demonstrating to the parties that I have at least tried to read the document but it may be that there will be other members of the Court who will raise these questions.

MR MOSHINSKY:   Yes, your Honour.  I am not able to answer either of those points at the moment.  They are not statements that the plaintiffs particularly urged to be included.  It may be the Commonwealth can address them.

HIS HONOUR:   Yes.  Now, Mr Solicitor for the Commonwealth, before I hear from the Solicitor for the State of South Australia, what is the position from the Commonwealth’s point of view?

MR BENNETT:   Your Honour, we have prepared a set of submissions this morning.

HIS HONOUR:   Yes, thank you.

MR BENNETT:   They are very short, your Honour, and they deal with the matters in issue.

HIS HONOUR:   Yes.  These are directed especially to the South Australian questions.

MR BENNETT:   Yes, they are, your Honour.

HIS HONOUR:   Is there anything you would wish to say at once about the matters to which I have drawn attention?

MR BENNETT:   Yes.

HIS HONOUR:   I do not expect you to but ‑ ‑ ‑

MR BENNETT:   Your Honour, in relation to paragraph 71, I do appreciate the technical inadmissibility, if that is the phrase, of the word “expected”.  The answer is that what the word is intended to convey, as I understand it, is expected in accordance with the standards of his or her profession.  The same way as a lawyer is expected to comply with certain ethical standards.

HIS HONOUR:   I had understood it that way.  Again, I am just concerned that somebody will say, “Yes, expected.  Where do I find the statutory warrant for that expectation?”, and in particular in this field where there is a debate about sufficiency of criteria in the taxing statute.  I wondered whether someone may later say, “Yes.  Well, is that an expectation said to be rooted in the statute?” and I understand it is not.

MR BENNETT:   Yes, that is my understanding, your Honour.

HIS HONOUR:   Yes.

MR BENNETT:   Your Honour, in relation to paragraph 11, I express great ignorance.  The accounting standard itself contains words “This applies to governments of States in relation” ‑ ‑ ‑

HIS HONOUR:   Just so, but is that simply something that the Accounting Standards Board devises and publishes, in effect, for its own purpose or does it have some statutory warrant?

MR BENNETT:   My ignorance, your Honour, is as to the statutory basis of the Accounting Standards Board.  I know one of our powers under section 51 is weights and measures.  I am not sure if that includes Australian standards or if there is some statutory ‑ ‑ ‑

HIS HONOUR:   Of this kind at least.

MR BENNETT:   Yes.  But I just do not know the answer, your Honour.  Ms Sloss may be able to assist on that and I will ask her ‑ ‑ ‑

HIS HONOUR:   But, again, my concern is only that we not get to the Full Court and we discover that there is either some additional statute to which we all ought to be looking and, if there is, let us have it early, or to have warfare break out about what it really is intended to mean.  Now, I do not expect answers to these questions now, but the parties might perhaps be

good enough to consider them to avoid problems emerging later.  That is all I am fussed about.

MR BENNETT:   Yes.  If your Honour defers signing the case until this afternoon or tomorrow, that perhaps can be dealt with as between the parties by agreement.

HIS HONOUR:   Yes.  Now, is it better, Mr Solicitor, that I read these ‑ hear from Mr Selway first?  What do you say I should ‑ ‑ ‑

MR BENNETT:   I suggest that course, your Honour.

HIS HONOUR:   Hear from Mr Selway first?

MR BENNETT:   That your Honour read this, then hear from Mr Selway, then ‑ ‑ ‑

HIS HONOUR:   Yes.  Well, if I may just have a moment.  Now, Mr Solicitor for South Australia.

MR SELWAY:   Your Honour can see we have two broad issues.  One of them arises out of, if I might say, the problem of drawing implications from a case stated.  It may be – and I do not know if your Honour has had a chance to have a look at the Commonwealth’s submissions – that that problem, in effect, is resolved by the way the Commonwealth approached it.  Our broad submission is that in view of the cases on the Court ascertaining constitutional facts, the ordinary principles about the Court not drawing implications cannot sensibly apply where the implication is in relation to a constitutional fact.  Consequently, if there is a problem, then ordinarily we would say it would not apply in this case and we are happy to, as it were, put that submission to the Court in due course.

The primary issue we are then left with is, if you like, the first one, the question of whether this is, if you like, a State officer carrying out a Commonwealth function, or merely reporting to the Commonwealth in relation to a State function.  It is not unconnected, I suspect, with the assertion about compliance with the Australian Audit Standards because I suspect the Commonwealth’s argument is that because the State is complying with these standards, it is doing this calculation in any event.

As to that, we would say that the compliance with the standards are voluntary by each State and by the Commonwealth, though it is reflected, firstly, in the Auditor‑General’s requirements in each jurisdiction and it is picked up in requirements of the Australian Bureau of Statistics and other things as to the manner in which accounts are consolidated around the country.  But leaving that issue aside for the moment, we would say that it is open to us, if necessary and if appropriate, to file affidavits, for example, from the actuary in New South Wales and Victoria, at least, as to why they do the calculations and whether there is any difference in the calculations they do to provide the information to the Commonwealth than the calculations they would do for the State.

We suspect the answer to both of those is “Yes”.  There may then be an argument about whether that is legally relevant or not, but it is hard to see how there would be an argument about the credit‑worthiness of the State actuary in making the affidavit.  Assuming that is so ‑ ‑ ‑

HIS HONOUR:   Can I just – and I may be taking you right off on a tangent, so forgive me if I do.  Assume we get to a Full Court, assume that there is no statutory path demonstrated as revealing statutory obligation on some relevant State officer to prepare a set of accounts that accord with AAS31, let it be assumed that there is no demonstration of the existence of such a statutory path.  Would it not then be open, even perhaps inevitable, that the conclusion would be that for want of demonstration of statutory obligation, what is done may be done, whether for good administrative practice or because somebody thinks it would be a good idea, but for no other better reason than that, though that may be perfectly sufficient reason for doing it?

MR SELWAY:   I take your Honour’s point and perhaps that is the point the Commonwealth makes in its written submissions.

HIS HONOUR:   But that would then leave you, would it not, making your argument on an identifiable factual platform?

MR SELWAY:   Yes.

HIS HONOUR:   Whether the argument is good, bad or indifferent is, of course, separate.

MR SELWAY:   Yes, it would, your Honour, but there is another sort of level of the argument which is a question of degree.  The concern we have is that there are other obligations that the Commonwealth imposes upon the State as an employer:  an obligation to provide pay records and pay details to the Commonwealth and an obligation to issue group certificates, an obligation to make PAYE deductions and so forth.  We do not say that any of those are invoked because we say that is an obligation imposed on us generally in relation to all employers and does not require us to assess tax.

We contrast that obligation with this.  If the information being provided is information that we already have for our own purposes, applying that distinction, it may then put the matter on another side of the

boundary, as it were.  It is, in effect, to meet that argument that we look to make this factual analysis, on the understanding, as we are told, that in every jurisdiction there is a separate calculation made for this purpose and it involves different analysis.  Now whether it should be made or not, or whether in complying with the Australian Audit Standards we ought to be doing these calculations anyway may be another issue, but the reality as a matter of fact, we are told, is that this is a different calculation.

HIS HONOUR:   What then do you say I should do?

MR SELWAY:   Your Honour, the way the Commonwealth responds, which, as we understand it, is it is unnecessary to put this fact in and, in any event, the fact would be wrong, but they do not deny the broader proposition we put that as an intervener we may be entitled to put material before the Court.  If that is the position, I am happy to rely upon that basis and attempt in due course to put – if we come to the view that it is necessary to put it before the Court, to try to do so by affidavit or whatever means are available, subject to the Court expressing a view in due course as to whether it is useful.

I certainly do not want to force this back to the Federal Court for some hearing on a disputed fact on this issue, but the reality is what I cannot simply accept is that we cannot put this fact before the Court if we come to the view that it is relevant to the argument we are putting.

HIS HONOUR:   Yes.  Yes, thank you, Mr Solicitor.  Well, Mr Solicitor for the Commonwealth, what are we to do?

MR BENNETT:   Well, your Honour, we just do not understand how my friend seeks to do this.  If he were to put on such an affidavit at a hearing to determine the facts to enable this case to be stated, one would object to the affidavit.  It would simply be an inadmissible statement of a conclusion, because if my friend only wants the specific fact, that seems to have no constitutional relevance, that in this case extra work had to be done.  If he wants the general fact, the general fact would depend on all sorts of circumstances which would change from time to time and which are just incapable of proof.  That is the problem.  What my friend is seeking to do is to say, “Well, this is always going to require some degree of special work by the State”, and that just does not ‑ ‑ ‑

HIS HONOUR:   Well, that is not what I would understand paragraph 4(a) of the Solicitor for South Australia’s submission to say:

the Attorney General has sought the agreement of the parties that the Case Stated contain as an agreed fact that the calculation made by the actuary was done for the purpose of the Commonwealth Act.

MR BENNETT:   In the particular case for a particular year.  How can that affect constitutional validity on any view?  Even that, we have ‑ ‑ ‑

HIS HONOUR:   Well, he says it may.  You say it may not.  If there is no dispute about it, what is against its inclusion?

MR BENNETT:   Well, there is some element of dispute because we have a document suggesting the contrary, your Honour.  My friend has a statement – and that is the problem.  It involves fine questions of degree and it is almost impossible to see how it can be relevant.

HIS HONOUR:   I am not, I think, going to be much swayed by questions of its relevance.  There is much in this case stated which each side will at the end of the day say, “It is interesting but of no relevance to constitutional validity.”  The question is, is there a disputed fact or is there not?  It is, indeed, odd that the matter should be a matter for dispute by the Commonwealth about what the State did or did not have to do.  The Commonwealth is omniscient, I am sure.

MR BENNETT:   Your Honour, the problem is there is – would your Honour just pardon me or ‑ ‑ ‑

HIS HONOUR:   Indeed.

MR BENNETT:   I can show your Honour the documents which give rise to the problem.  Your Honour, I will not go into the detail of it.  In general terms we have an actuarial review from New South Wales in relation to the judges pension scheme which makes certain statement.  My friend has obtained a letter which suggests to the contrary.  Now, we were not there.  We do not know.  We can put on one, if my friend puts on the other.  It seems such an unlikely issue to be of the slightest relevance, that it all seems a bit silly.

It may be the answer is that if we each put on affidavits, in the almost inconceivable event that the Court considered this fact mattered, at that stage the Court would say it depends on that fact and send it back.

That is the problem, your Honour.  What my friend really wants is, one would have thought, a general fact because that is what is constitutionally relevant and the general position, we would have thought, is as stated in our submissions.  It certainly imposes an obligation.  That obligation might or might not have different degrees of onerousness because of what the State otherwise does in a particular case, full stop.

If the Court at the end of the day answers the question by saying it is invalid if there is a substantial independent obligation imposed on the State and not otherwise, so be it, and the issue of fact could be tried.  But it seems, as I say, almost inconceivable.  I noticed my friend did not address your Honour on (b), (c) and (d).  I do not know if they are being dealt with separately or if he does not need to address on those.

HIS HONOUR:   I had understood your submissions to be that (b) was a pure question of law.   Paragraphs (c) and (d) rather took the point away, but as you say, there was no separate submission about it.

MR BENNETT:   Yes.  Well, in that case I do not need to deal with those.  So, your Honour, we only have the problem in relation to (a).  It may be that if we do some more work on it we can try and reach agreement on some compromise formula but it is very difficult ‑ ‑ ‑

HIS HONOUR:   But for the extraordinary history of this document, Mr Solicitor, I would say “enough”, but the history of a document prepared in a form which, on its face, seemed to be an attempt to agree the opposite party out of its case does not engender great confidence.  Now, let us not go back into the history.  This is the litigation of the parties.  It is not the litigation of the interveners.  The parties will go forward on the case stated they agree.  It would be passing strange if the representatives of two governments could not agree upon that which was undisputed.

For my own part, I am unpersuaded by the notion that because one party says it is irrelevant that, of itself, concludes the question of whether it should be included in the case stated.  There is much in this case stated which one party will say is irrelevant.

MR BENNETT:   Your Honour, the real problem is not the irrelevancy.  The problem is the nature of the fact on which agreement is sought which is a subjective fact, not an objective fact, as to which the answer is subjective in the specific case and fairly obvious, as we put it in our submissions, in the general case.  That is the real difficulty, your Honour.  I accept what your Honour says about relevance, but where a statement in broad form which, in broad form would not be an admissible statement, it would be a conclusion, almost an argument is put, an admission is required of it, it makes it very difficult.

HIS HONOUR:   Yes.

MR BENNETT:   If the Court pleases.

HIS HONOUR:   Mr Solicitor for South Australia, do you want to say anything in answer?

MR SELWAY:   Your Honour, the way my learned friend puts it is if it is a specific fact it is not relevant.  We say as a specific fact it may well be and it is a specific fact we wish to put before the Court and we cannot see why that, in principle, should cause a problem.  If there are some differences to what the New South Wales actuary has reported to each of us in due course, that should be resolvable by us in the New South Wales actuary.

In terms of the general proposition my friend puts, which, as I understood it was that there is an obligation imposed by the Commonwealth Act, that that obligation will impact upon States differently depending on how the State is set up and what calculations it makes, that, with respect, is the conclusion we wish to draw from the specific fact.  So, it may be that we are in no great dispute as to the conclusion.

The other problem we have is this problem of inferences and my learned friend says it is a conclusion and a matter for argument but, with respect, conclusions are stated in the case stated, conclusions of fact certainly.

HIS HONOUR:   Why should I not treat the case stated as being the case stated by the parties?  They stand or fall on it.

MR SELWAY:   Your Honour, as between the parties that may well be an appropriate course.  The difficulty we have is that assume party A and party B, two private parties, come before the Court and agree a case stated about the validity or otherwise of a Commonwealth Act.  The Commonwealth comes along after the case stated has been agreed and says, “These facts are, frankly, nonsense”.  The Commonwealth, we would say, is perfectly entitled to put before the Court what material it has to prove that the case stated is wrong so the Court does not proceed and hold invalid a Commonwealth statute based upon, if you like, the private agreement of the parties.  We say there is plenty of authority to support that proposition and we are, for our part, happy to oblige.

HIS HONOUR:   But, at the end of the day, the fact with which we are principally concerned here is a fact about obligation, is it not?

MR SELWAY:   Yes, your Honour. 

HIS HONOUR:   Obligation is statutory.

MR SELWAY:   Yes.

HIS HONOUR:   You can either point to a statute or not.

MR SELWAY:   Yes, you can.

HIS HONOUR:   And if there is no statutory obligation for the work that is undertaken, that is one set of circumstances.  If there is statutory obligation found only in the Commonwealth statute and not in any State statute, whatever follows from that follows from that, does it not?

MR SELWAY:   Yes, your Honour, and if that is sufficient answer for the Court in due course, we are happy to rely upon it.

HIS HONOUR:   Whether it is sufficient is something that I am not going to answer, Mr Solicitor.

MR SELWAY:   No, I understand, your Honour.

HIS HONOUR:   And I cannot even give you one‑seventh of the answer to that yet.

MR SELWAY:   But, maybe that is the way we proceed on the basis that, in effect, we have the affidavits in our bag.  If it turns out that the Court is interested in the factual matter we can inform it of it.  If it is not ‑ ‑ ‑

HIS HONOUR:   There is, again underlying all of this, a notion of which there has been much currency in the last 20, 30 years, namely the Treasury can legislate by press release.

MR SELWAY:   Yes.

HIS HONOUR:   And that that which Treasury says by its directions and the like somehow becomes the law of this country.  For my own part, that is at least a contestable proposition.

MR SELWAY:   I am pleased to hear it, your Honour.  Your Honour, as to the other matters, the position we take on that is that the position, as we understand the Commonwealth’s submission, is that we would not be prevented from putting the submissions we wish to put on any argument based upon the nature of a case stated which we say is right in law.  To that extent, we do not require those facts to be agreed and we are happy to rely upon whatever implication we can draw from the case stated.

HIS HONOUR:   Yes.

MR SELWAY:   Thank you, your Honour.

HIS HONOUR:   Yes, thank you, Mr Solicitor.

I will execute a case stated substantially in the form submitted if, no later than close of business Friday next, the parties were in a position to submit a form of case stated substantially in the current form and to which the parties are agreeable.  I will execute a case stated in that form.  The costs of today should, I suspect, be costs in the cause, should they not?  I will certify for the attendance of counsel.

Yes, Mr Solicitor.

MR BENNETT:   Your Honour, there is the issue of timetable.

HIS HONOUR:   Yes, something to which I have given no attention, Mr Solicitor, though undoubtedly I should have.  It is fixed for what time?  It is in the proposals, I know.

MR BENNETT:   It is June 19 and 20, your Honour.

HIS HONOUR:   June 19 and 20.  Now, have the parties given any thought to timing of submissions?  There was some debate about length, was there not?

MR BENNETT:   Your Honour, on the last occasion there was some discussion and some tentative dates were discussed.  I think the two dates, your Honour, for the plaintiffs’ and defendant’s submissions respectively were 6 and 31 May.

HIS HONOUR:   Yes.

MR BENNETT:   There is a question about the South Australian submissions.

HIS HONOUR:   Yes.

MR BENNETT:   It is in a slightly different position to a normal intervener because it has issued its own notice under section 78B, which raises different issues to those raised between the parties.

HIS HONOUR:   Yes.  My note of the last hearing was 6 May; interveners 13 May; answer 31 May; reply 7 June.  That was, I thought, the note.

MR BENNETT:   Yes, that is so.  Your Honour, we are content with that.

HIS HONOUR:   Yes, Mr Solicitor.

MR SELWAY:   Your Honour, for my own part I am content with 13 May for South Australia.

HIS HONOUR:   Yes.

MR SELWAY:   Some of the other States are considering their position.  They have not yet seen the case stated, in particular, the new part M, which is the Commonwealth State agreement.

HIS HONOUR:   Yes.

MR SELWAY:   It may be that that will cause some interest which has not arisen hitherto. 

HIS HONOUR:   And is 13 May unlikely then to be capable of achievement by States other than South Australia?

MR SELWAY:   That is what I was going to suggest, your Honour, and as I say, certainly for South Australia, 13 May.  For other States – it may be of some benefit to the Commonwealth if they knew the States’ position before 31 May.

HIS HONOUR:   If we were to say all interveners by, say, 22 May, that gives an over‑rounded week for the Commonwealth to pick up on what is happening from the interveners.

MR SELWAY:   I have heard no suggestion that anybody is contemplating any argument beyond those that are being put by the plaintiff and by South Australia.

HIS HONOUR:   Yes.

MR SELWAY:   But, all I can say to your Honour is that I have been asked to plead for a bit of extra time for the others, but so far as South Australia is concerned we will have ours in by 13 May.

HIS HONOUR:   Yes.  Well, Mr Solicitor for the Commonwealth, would 22 May give you time enough to digest interveners’ submissions?

MR BENNETT:   Yes, your Honour.

HIS HONOUR:   Now, as to length ‑ ‑ ‑

MR MOSHINSKY:   Excuse me, your Honour.

HIS HONOUR:   Yes, Mr Moshinsky.

MR MOSHINSKY:   Just on the timetable, the plaintiffs are content with ‑ ‑ ‑

HIS HONOUR:   You mean the plaintiffs have some interest in this somewhere.  It is not just a war between governments, Mr Moshinsky.

MR MOSHINSKY:   The plaintiffs are content with 6 May for their initial submissions to be filed and served.  However, particularly given the length that is anticipated for the Commonwealth’s submissions, they think they will need some extra time for their reply and I was wondering whether they could have, instead of one week, two weeks for reply.

HIS HONOUR:   For my own part, I would much rather bring it back, at least to Wednesday 12.

MR MOSHINSKY:   Yes.

HIS HONOUR:   Simply because, in the real world, the available time, once sittings begin, is much, much less.

MR MOSHINSKY:   Yes, I am content with 12 June.

HIS HONOUR:   Now, as to length, I am not minded to give a general dispensation for as long as the parties want.  What are the bids, and the auction might be of the Dutch kind rather than the ordinary kind at this stage?  Yes?

MR MOSHINSKY:   Your Honour, last time we were before you, the Solicitor‑General for the Commonwealth was proposing that each party be allowed 50 pages for their submissions.

HIS HONOUR:   Yes.

MR MOSHINSKY:   On the plaintiffs’ part, we do not think we need as long as that.  We are not opposed to an order being made allowing that length.  I would say, also, though, that we would like a bit longer in length for the reply submissions than under the practice direction.  Under the practice direction it is five pages and we would seek ten pages.

HIS HONOUR:   Yes.  Now, Mr Solicitor, 50?

MR BENNETT:   Yes, your Honour.

HIS HONOUR:   Is that the outer limit?

MR BENNETT:   I hope so, your Honour.

HIS HONOUR:   Well, it will be.

MR BENNETT:   Yes.  We do, of course, have to deal with two separate opponents but in different constitutional arguments.

HIS HONOUR:   Yes.

MR BENNETT:   One does really, in submissions here, have to explain and contrast the other types of superannuation scheme which exist in the community and how they are taxed in order to demonstrate a central proposition that this really is assimilating one group to the position of another, as near as can be and that submission does require a little length to explain.

HIS HONOUR:   Yes, I can understand that.

MR BENNETT:   But we are happy with 50 pages, your Honour.

HIS HONOUR:   Yes.  Then, if I were to give directions that the written submissions on behalf of the plaintiffs be filed and served no later than 4 pm 6 May; written submissions on behalf of any intervener be filed and served not later than 4 pm, 22 May.

MR BENNETT:   Sorry to interrupt, your Honour.  I understood South Australia was to be 13 May and the other States 22 May.

HIS HONOUR:   If there is no objection to that, then I will do that.  Then, let us begin again.  Plaintiffs’ submissions on or before 4 pm, 6 May;  submissions on behalf of the Attorney-General for South Australia intervening, on or before 4 pm, 13 May; submissions on behalf of any other intervener on or before 4 pm, 22 May; submissions on behalf of the Commonwealth on or before 4 pm, 31 May; submissions in reply by plaintiffs on or before 4 pm, 12 June. 

I direct that in lieu of the limits specified in the practice directions the submissions in‑chief of the plaintiffs and of the Commonwealth not exceed 50 pages in length and the plaintiffs’ reply not exceed 10 pages in length.  There is no dispensation made in respect of the interveners and, I think, none, at least for the moment, is needed.

There is, I think, no other direction, is there, that would be necessary to assist the preparation of the matter?  The current form of case stated will give us, I think, will it not, a pretty much self‑contained set of volumes of documents that will take us to almost all, probably all, of the relevant statutory provisions, I think, will they not?  I am just trying to think whether there may be any other way in which, mechanically, we could ease the way through but none occurs to me.  The parties are not conscious of anything, I suspect. 

Yes.  Well, there will be directions in that form.  As I say, I will execute a case stated substantially in the form submitted if the parties submit it to me initialled no later than close of business on Friday.  It would assist me if the parties could direct my attention to those amendments that are made from the draft that I have seen.  That will simply be of some assistance.

Now, all that being said, do the parties wish to be heard further?  There will be orders in those terms.

AT 10.11 AM THE MATTER WAS CONCLUDED