Beck v Weinstock and Ors

[2012] HCATrans 285

[2012] HCATrans 285

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S56 of 2012

B e t w e e n -

TAMAR RIVQA BECK

Appellant

and

AMIRAM DAVID WEINSTOCK

First Respondent

HELEN WEINSTOCK

Second Respondent

LW FURNITURE CONSOLIDATED (AUST) PTY LIMITED
(ACN 000 894 557)

Third Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 NOVEMBER 2012, AT 10.00 AM

(Continued from 14/11/12)

Copyright in the High Court of Australia

____________________

FRENCH CJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  May I go first to some other aspects concerning the relevant statutory provisions and could I take your Honours to paragraph 20 of our written submissions, which is dealing with section 254A?  Your Honours, the point we seek to make is that if one looks at that provision and particularly subsection (2), it specifies the kind of rights attached – and I use the words of that provision itself – which have to be set out in the company’s constitution and we would submit that the provision does not prescribe the content of the rights in any other way, nor does it prescribe the manner or degree to which they may be in fact exercised, and we make the point set out in the last sentence of paragraph 20 of those submissions, that the provision focuses on the existence of rights rather than on their actual exercise or enjoyment.

Your Honours, could I go also to paragraph 22 of our written submissions?  The point we seek to make is that the Act does not place any restriction on the ability of a company to redeem redeemable preference shares by reference to the circumstances existing at the time of redemption, save for the requirements that we have specified there, that is, they must be fully paid up, the redemption has to be out of profits or the proceeds of a new issue of shares made for that purpose, and there can only be redemption on the terms on which the shares are on issue.  Those are the provisions of 254J and 254K.  Your Honours, could we just say that the reference, if one goes to section 254J to the terms on which the redeemable preference shares are on issue, suggests, in our respectful submission rather strongly, that one looks at the rights conferred by the constitution of the company on classes of shares.

Your Honours, could I refer also to paragraph 26 of those submissions and invite your Honours to go also to the considerations which we have set out in paragraph 56.  Your Honours, we would submit that there is no provision that has imposed a requirement that ordinary shares or shares of any kind continue to be on issue following redemption.  I am going to come in a few moments to the 1991 Act of the United Kingdom but, leaving that aside, your Honours, we would submit that no such requirement has ever been perceived to be necessary in the Corporations Laws and, without reading it out, could we refer your Honours to what is in paragraph 56.

Could I turn, your Honours, to the question of maintenance of capital, upon which the argument of the appellant appears to turn in rather significant measure.  It is said that their argument accords with the concept of maintenance of capital, but there are some difficulties, with respect, in adopting that view, we would submit.

The first reason, your Honours, against it is that there are separate statutory regimes applicable in relation to maintenance of capital on the one hand and redemption of preference shares on the other.  In the 1961 Act, your Honours have seen section 61(3) and section 61(5), and in the case of the Corporations Act, one sees section 254J(1) and 254K.  May I take your Honours to those for just a moment?  Section 254J(1) says that:

A company may redeem redeemable preference shares only on the terms on which they are on issue. 

But then one sees subsection (2) which provides that:

This section does not affect the terms on which redeemable preference shares may be cancelled under a reduction of capital or a share buy-back under Part 2J.1.

Your Honours, that provision, in our submission, makes it apparent that redemption and buy-back are separate things.  But also, your Honours, if I could go back to our written submissions in paragraph 29, we seek to make the four points which we have summarised there.  Your Honours, we would submit that each of the four points is germane.  The first is that redeemable preference shares can only be redeemed from profits or from the proceeds of a fresh issue of shares, and only where they are fully paid up, and because of that redemption does not affect the interests of creditors, we would submit, in any relevant way. 

The second thing is, your Honours, that reductions of capital under Part 2J do affect creditors because they reduce the commitment, whether paid or unpaid, that shareholders have made to a company and the contention of course advanced from time to time is that it is on the strength of that commitment that creditors choose to deal with a company.  There is a qualification to that, your Honours, which we have noted in the footnote to that paragraph, a qualification about perhaps commercial reality.

The third point, your Honours, is that not all preference shares are redeemable.  We would submit that to construe the expression “preference shares” in a narrow way in order to avoid the result that such shares, if made redeemable, might be redeemed in a manner contrary to the policy of the Corporations Laws is really to start at the wrong point.  The expression needs to be first construed in a way that accommodates preference shares of any kind, redeemable or not.  Finally, your Honours, in paragraph (d) we make the point this is not this case; they were always “A” class shares.

Your Honours, could we also refer to the points we make in paragraphs 52 through to 61.  Your Honours, may I just say a couple of things about without going into detail?  Your Honours will see that at paragraph 53 we have referred to re Dicido Pier Company and to the reasons for judgment of Justice Chitty in that case. Could I take your Honours to that case for just a moment – [1891] 2 Ch 354? Your Honours, we make the general point about it that is set out in paragraph 53, but could I invite your Honour to note the concluding words at page 359, which rather militate against the notion that the case should be regarded as a precedent of general application, where his Lordship said:

The case is a very peculiar one and not likely to occur again.

Your Honours, more mainstream, one might have thought, were the same judge’s observations in another case to which we have referred.  Your Honours will see footnote 8 to paragraph 53 of our written submissions.  That takes one back to paragraph 38 of that submission where your Honours will see a case referred to – Re Floating Dock Co. of St Thomas Ltd [1895] 1 Ch 691. May I take your Honours to that? Your Honours, Floating Dock Co. of St Thomas had not been immensely successful.  Your Honours will see in page 691 ‑ ‑ ‑

HAYNE J:   It sunk, Mr Jackson; it sunk.

MR JACKSON:   I know, your Honour, and that is why, with some sensitivity to the circumstances, the second company omitted from its name the word “floating” and it became the St Thomas Dock Co.  It, however, appeared to be also a failure and was wound up.  Your Honours will see the company that was formed was one that had two classes of preference shares and also ordinary shares.  Now, what happened in the case was that there had been an agreement that there be cancelled one of the classes of preference shares and all the ordinary shares.  So the only shares that remained would be one class of preference shares.  Your Honours will see that at the conclusion of the judgment his Lordship said, and this is about the sixth line on page 699:

I think the evidence justifies me in the conclusion that the second preference and ordinary shareholders have no interest whatever in the concern.

He went on to confirm the proposed reduction of capital which left only preference shares.  Now, your Honours, that decision does not support the existence of the supposed understanding, if that be the right word, that preference shares require that there be other issued shares over which the preference shares had some priority.  That is a decision of, I think, 1895.  It is very difficult to say consistently with that decision that the understanding of the nature of a preference share are necessarily carried with it the need for there to be some subordinate share.

Against the existence of any such understanding also is the fact that it was thought necessary to make specific statutory provision in the United Kingdom in the 1981 Act in order to require that other shares be on issue at the time when redeemable shares, the word “preference” having been deleted, were issued.  Your Honours, that is the provision that is section 45(2) of the 1981 Act that was referred to yesterday by our learned friends which says:

No redeemable shares may be issued at any time when there are no issued shares of the company which are not redeemable.

Your Honours, the commentary by Professor Gower – and I will take your Honours to this in just a moment – the commentary by Professor Gower which was published for the purposes of discussions leading to the enactment of that legislation, does not really support the existence of any established notion that other shares must be on issue at the time when preference shares are issued or indeed redeemed; rather the opposite.  Now, your Honours should have a document called “The Purchase by a Company of its Own Shares”, a consultative document.  You will see that that document, June 1980, sets out, at the page numbered 1, the background to the matter:

Broadly speaking company law in the UK does not permit a limited company to buy its own shares.

Then you will see in paragraph 3, the fourth line:

In Part II of this document, Professor L C B Gower . . . discusses the present law in this country –

et cetera.  The relevant part of Professor Gower’s observations is set out at page 13, paragraph 21, where he suggested that two other amendments would be desirable.  Your Honours will see he said:

The first, a minor one, would be designed to ensure that the company, as a result of redemptions, did not end up without any members.

Your Honours will see at the end of that paragraph he said:

It is suggested therefore that a section 58 should be amended to provide that the power to issue redeemable shares should not be exercised unless the company has another class of (irredeemable) shares.

Your Honours, the observations there, in our submission, and the desire for there to be an amendment of the laws for the purpose set out in the first paragraph, the first sentence of that paragraph, do not support the notion that there was an established concept that a preference share had to be one that at the time of issue – I am sorry; I will start again – that in relation to a preference share, for the issue of a preference share, to result in the share being a preference share there needed to be in existence another class of issued shares.  Your Honours, could I just say in relation to ‑ ‑ ‑

HAYNE J:   Before you leave paragraph 21, was there, or is there, an Australian equivalent to the section 31 that is mentioned in the middle of that paragraph imposing personal liability on the remaining members when a company trades with less than the minimum?

MR JACKSON:   I cannot give your Honour an answer at this minute, but I will endeavour to give one before I finish.

HAYNE J:   Thank you.

MR JACKSON:   Your Honours, I was also going to say, in relation to the provisions of that 1981 Act, that our learned friend’s submissions yesterday – and I am referring to paragraph 1275 of the transcript – in relation to section 45(2) said that the concept in section 45(2) is exactly the one that is built into the concept of preference shares in Australia.

We would submit, your Honours, that that submission encounters some problems.  The first is that the requirement in the United Kingdom is only that there be other non‑redeemable shares on issue.  They need not be junior ranking shares and that, of course, is the situation here.  The “A” class shares have been on issue at all times and are not redeemable.

Your Honours, the contention advanced by our learned friends is that the concept built into the concept of preference shares in Australia is that there must be other shares on issue and that they rank below the preference shares.  Now, that is not the United Kingdom position.  It is simply a requirement there that there be other shares.  That is pursuant to the 1981 amendments.

The second point we would make is that it is not the case, as our learned friend’s argument would seem to involve, that the United Kingdom Act prohibits the redemption of redeemable shares if to do so would leave the company with no shareholders.  The restriction is as to issue, not redemption.  The current United Kingdom provision, the equivalent to section 45(2) of the 1981 Act, your Honours, is section 684(4) of the Companies Act 2006.  The wording is similar.

As in Australia, where the statutory object of preventing no‑member companies is achieved by a separate provision, which is section 114 of the Corporations Act in Australia, in the United Kingdom that object is achieved, for example, by prohibiting buy‑backs that would leave a company with only Treasury or redeemable shares on issue.  That is section 690 of the Corporations Act 2006.

Your Honours, the third and your Honour will be pleased to hear last point I wanted to make about this was that the 1981 amendments were not directed to maintenance of capital.  They are directed to ensure the companies were not left without members.  Your Honours, could I return then to our written submissions for a few moments and to paragraph 55 of those submissions. 

The point we would seek to make - your Honour, I do not think I need to elaborate upon it, more than to say we would refer particularly to the last two sentences of paragraph 55.  Your Honours, could I go then to our written submissions in paragraphs 58 through to 61, and your Honours, in paragraph 58 we would say that, at least in relation to Australia:

the fear of a company being left with only redeemable preference shares . . . is not one which has ever prompted any legislature to impose an additional constraint on a company’s ability to nominate that “part” of its share capital which may be redeemed. 

Your Honours, we emphasise in paragraph 59 – a matter to which I have averted already – and that is that there are two different regimes, one being for redemption of shares and the other being for reductions of capital.  Your Honours, we elaborate upon that in paragraph 60 and, your Honours, we would submit that the Court should take the view set out in paragraph 61 that the two concepts do not combine to form a doctrine of maintenance of capital that imposes additional restrictions upon the ability to redeem shares. 

Your Honours, so far as the appellant’s historical argument is concerned, we dealt with that in some detail at paragraphs 36 to 51 of our written submissions.  Your Honours, may I refer to a few aspects contained in those provisions?  If I could go to paragraph 36 of our written submissions, the point we seek to make is that it may well be right that preference shares were originally devised as a means of raising additional capital to complete engineering works and so on. 

Your Honours, we refer in that paragraph to the fact that there were various private Acts including that involved at the time of Re Brighton and Dyke Railway Company where they divided the shares into two halves.  But what we would say, your Honours, is that if one goes to paragraph 37, your Honours will see that our learned friend’s submissions suggest that shares which conferred a priority only over unissued shares would not have been an attractive bait, as it were, for investors.

But, could we just say, your Honours, as we say at paragraph 37, that an important feature of preference share is it has a priority over all ordinary shares, whether already issued or yet to be issued.  Your Honours, in relation to – and I refer particularly also to paragraphs 46 and 47, your Honours, we discuss in the earlier paragraphs the various cases there referred to, and the point we seek to make is that if one looks at the cases one starts with contentions of quality of shareholders.

But, in the end what the courts have emphasised is the dominance of the articles of association in working out the respective rights and liabilities of shareholders, including preference shareholders.  Your Honours, in paragraph 47 our submission is that the emphasis in the appellant’s argument appears to be not to give the weight or perhaps dominance to the articles of association that, in our submission, it is appropriate to give.

HAYNE J:   I think I may be right in suggesting that the observation you make in your written submissions about preference shares being first statutorily recognised in, I think it is the 1929 Act, is it ‑ ‑ ‑

MR JACKSON:   I think that is right, your Honour, yes.

HAYNE J:    ‑ ‑ ‑ reflects the fact that if you go back into the cases, I think starting at case called Scarborough Hotel, it all had to be rooted in the articles, and if it was not in the articles, no capacity to issue preference shares.

MR JACKSON:   Yes.  But, the two Scarborough Hotel cases, I think, and in the end the result that was arrived at was that where it had been held that a company could not alter its articles to provide for the issue of preference shares, that decision was overruled and the focus of the case is to say it depends on the articles.

HAYNE J:   Yes.

MR JACKSON:   Your Honours, could I go, in relation to this historical aspect, finally to paragraph 51 of our written submissions, and, your Honours, the point we seek to make is, however preference shares may have originated and whatever their original purpose, we have rather moved on.  Your Honours, could I go then to the reasons for judgment of Justice Young in the present case?  The submission which we make is that his Honour’s reasons do not, with respect, provide a substantial basis for the appellant’s case.  Could I go first, your Honours, to page 214, paragraph 75?  Your Honours will see that the judge, after saying that:

what little there is on the subject, points in the one direction –

he went on to say –

that is, that a preference share is one which has preferred rights over another class of share.

Your Honours, I will come back to that observation in a moment and particularly the emphasis on the word “rights”.  But what his Honour was talking about was the analysis that commences I think effectively at paragraph 63 on page 212.  The point I am seeking to make, your Honours, is that if one looks at the paragraphs between that paragraph and the observations in paragraph 75, one sees that either the observations refer to rights in relation to shares or are neutral on matters relevant for present purposes.  If your Honours look at paragraph 63 where there is a quotation from Gower and Davies, your Honours will see that says that:

ordinary shares are the residue of rights to the company’s assets after the special rights have been taken.

Then in paragraph 64, his Honour says:

Indeed, there can be situations . . . where each share has different rights.

That must come from the constitution of the company.  Then in paragraph 65 his Honour said:

One gets little assistance from the key text books . . . Gower and Davies p 620 says that the term “preference share” covers a wide field from equity shares to quasi debentures.

Which supports the proposition to which I was referring a few moments ago that these shares are used for various purposes.  Then at paragraph 66 he speaks of the 4th edition of Gower as saying:

the distinguishing features –

of various types of preference shares –

being that they confer on the holders some preference over other classes in respect of dividend or of repayment of capital or both.

At paragraph 67, Jowitt, some:

“shares in a company having some preference over other (‘ordinary’) shares”.

The decided cases, his Honour I think rightly says, are of little help.  That is at paragraphs 68 and 69.  At paragraph 70 the quotation, third line:

Preference shares have preferential rights; common shares have rights, but not preferential rights.

Paragraph 71:

“Preferred Stock” as “stock which in relation to other classes enjoys certain defined rights and privileges.”

Then, your Honours, paragraphs 72 and 73 and 74 really do not go anywhere.  So finally, your Honours, one comes back to paragraph 75 where his Honour said:

The above analysis shows that what little there is on the subject points in the one direction, that is, that a preference share is one which has preferred rights over another class of shares.

Your Honours, so far we would submit that is perfectly correct.  His Honour then goes on to say:

It logically follows that, if there is no other class of share, there cannot be any preference shares.

His Honour must mean, one would think, no other class of share issued.  If what he was saying is that there is no provision for any other class of share then it might be a different question.  But, in our submission, if he is speaking about rights then the conclusion at which he ultimately arrived is not supported by the decisions and authorities to which he has referred.

Your Honours, what might perhaps follow logically is that if the memorandum and articles of the company made no provision for any other class of shares then perhaps there could not be preference shares issued. 

But that is not this case.  Your Honours, if one goes then to paragraphs 76 to 78 your Honours will see, referring to our side of the case, the appellants say that, while their broad proposition may be accepted, there is no reason why the articles of association cannot.  Your Honours will see the remainder of that paragraph, and your Honours will see then a submission by our side and then what is said in paragraph 78:

a share holds the same status as on the day it was issued.  If, when it was issued, it was not in law a preference share, it remains a non‑preference share even though, had it been issued after shares with inferior rights, it would have been a preference share.

His Honour said:

To my mind this is a good answer.

Your Honours, it is a little difficult, with respect, we would say, to see that this is a good answer.  It just seems, with respect, a little bizarre if in a company, the constitution of which allows there to be preference shares and ordinary shares, the order of events of the issue of preference shares as against ordinary shares determines the validity or perhaps efficacy of preference shares.  Why really should it matter that the preference shares are issued on day two rather than day one?

If your Honours then go to page 217, paragraph 93, which relates to the matter to which I was just referring, his Honour relies on an analogy with elections and says that in some cases A must precede B.  Your Honours, questions of status and capacity often involve matters of this kind.  One could not be doing what I am doing unless I were a legal practitioner able to appear before the Court and entered on the Court’s roll of practitioners and able to do it.  But, your Honours, that is hardly in the same realm of discourse, with respect, as the present.

Your Honours, your Honour Justice Hayne asked was there an equivalent in Australia to section 31 of the UK Act.  The answer is no.  Your Honours, those are our submissions.  In our submission, the appeal should be dismissed with costs.

FRENCH CJ:   Thank you, Mr Jackson.  Yes, Mr McHugh.

MR McHUGH:   Your Honours, there are two or three points that I need to deal with.  The first one is the role of the doctrine of maintenance of capital in my argument because, as my friend said a little while ago, it plays a significant part.  What I am wanting to focus on is the significance of the concept of cancellation of shares and the way in which that is a feature of the doctrine of maintenance of capital, because that is really the crucial background to an understanding of sections 254J and K.  That was the matter that I was endeavouring to deal with yesterday when, in answer to something Justice Kiefel was saying to me, I said at one point I was worried that I had misunderstood the point your Honour was making and, having gone back and re-read the transcript, I think that may be right.

The point I was wanting to make yesterday about Dicido is this:  that under the 1877 Act, section 4, any reduction of capital needed court approval, but it was only the ones that involved the payment to a shareholder out of paid‑up capital, as it was called, which then brought on the requirement to be heard from creditors.  In the discussion I was having yesterday with Justice Kiefel on this point, that distinction may have been lost.  What happened in Dicido was that Justice Chitty accepted that even though it was a reduction out of profits, it was nevertheless a reduction of capital for the purposes of the statute because the shares were being cancelled.

Your Honours will find that – I need not go back to it – at the very end of the judgment at 359, and it starts a little earlier on 358.  That was why court approval was required.  That was why an order was made.  The issue with which his Lordship was concerned was whether or not the creditors had to be heard from, and the answer was no.  Those concepts of redemption out of profit and cancellation end up in the regime which is 254J and 254K.  They stand outside, as my friend was just saying, the general regime for reduction of capital.  The point that I am wanting to make out of all of this is that there is in Australia no general provision for the cancellation of shares out of profit.

That special exception to the doctrine, which prohibits the cancellation of shares and the return of money, applies only in relation to preference shares, and that is what your Honours find in 254J.  The reason for that, in my submission, the reason why it is reserved in that way, is this concern about cancellation and the basic proposition that preference shares will always have, as part of their necessary existence, an anterior issue of shares that are on issue and that exist, so that when one cancels preference shares one is not exposed to the concern that there end up being no shareholders.

In that regard, might I take your Honours to the green paper, Professor Gower’s report?  There is an earlier paragraph that my friend did not take your Honours to and I need to draw to your Honours’ attention.  On page 6 your Honours find in paragraph 4 where Professor Gower, undoubtedly one of the great authorities on questions of company law in the later part of the last century, says:

The main reason for restricting the power to issue redeemable shares to preference shares was, no doubt, that the possibilities of abuse are less in this case since they do not normally afford voting control –

Then when your Honours come down to the very last sentence of that paragraph:

The only worthwhile purpose that the word ‘preference’ seems to serve –

in the existing legislation –

is that it ensures that the company has other, non‑redeemable, shares and therefore helps to avoid the complications which occur when a company finds itself without any shareholders.

My friend said earlier today that there was no established conception that preference shares necessarily involved the existence of other shares.  Here we have Professor Gower telling the United Kingdom Parliament that that is exactly what the existing conception was.  That was one aspect of the conception of preference shares and that was the explanation for why it was only preference shares that could be redeemed out of profits.  There is no general provision that allows that.  So it is still a reduction of capital, it is still a cancellation of shares and it is confined to a special class of shares which, by their nature, require the existence of another class of shares.

Now, my friend referred to the United Kingdom Act in its present form.  As my friend very fairly pointed out, in section 690 of the 2006 Act, there is a prohibition on, for example, buy-backs which leave only redeemable preference shares.  So, although the section with which your Honours were concerned yesterday that I took your Honours to, as my friend says, was concerned with the issue of these redeemable shares, the scheme of the legislation makes sure that there must always be on issue some other class of shares in the United Kingdom.  My submission is that that is the work that is done in Australia by confining this class of shares to what I called redeemable preference shares. 

My friend referred to the Floating Dock Company Case.  The submission I make about that is that that was a case in which, in accordance with the ordinary conception, there were ordinary shares on issue and preference shares.  There was then an amalgamation or restructure pursuant to a scheme of arrangement and the effect of that, I submit, is that what remained, whatever they were called, were not truly preference shares.  There was only one class of share left.  They had no preference, even under the constitution, over any other share at that point.  They were the only ones left, and in any event they were not redeemable.  So, that case does no violence to the argument that I have been putting at all.

Next I need to come to the point my friend was making about Justice Young’s reasoning below.  If I can take your Honours to 216 in the book.  At paragraphs 82 and 83 your Honours find what I submit is the heart of the reasoning.  My friend has not taken your Honours yet to these two paragraphs.  What Justice Young was saying was:

Unissued shares have no existence.

In 83:

If the indicia of preference shares is that they have preferred rights over something else, that something else must actually exist.

Justice Handley, as it happens, at page 223, paragraph 127, accepts that proposition that the shares “did not exist”.  His Honour, quoting from Pilmer v Duke Group Ltd accepts that:

Before the shares in question were issued, they did not exist –

Now, that is the heart of his Honour’s reasoning and, in my submission, it is plainly correct.  That leaves only one thing I need to do, which is to come back to your Honour Justice Gageler’s issue about the transitional provision.

GAGELER J:   It is not so much an issue; it is a request.

MR McHUGH:   A request, I should say; your Honour Justice Gageler’s request.  We have prepared overnight a note taking up what your Honour Justice Hayne put to me yesterday about buyer beware.  I do need to say that this was prepared in circumstances where we were doing the very best we could, but we could not always find a copy of what was the relevant piece of legislation at the time of the transition.  To some extent we have had to work this out from later reprints but, as far as we can tell, it is correct.  Your Honour Justice Hayne’s account, I am submitting to your Honours, was substantially correct and it is set out here.

The main point I want to make about it is only the point that your Honours see in the first few paragraphs – namely, that the way this current Act works is that it applies to companies that are registered.  That is in section 9.  All the provisions that we are referring to refer to a company.  Section 9 refers to a company registered under the Act.  The relevant transitional provisions have effect that this company with which we are dealing, the third respondent, is taken to be registered under the Corporations Act and at that point all the provisions relevantly apply, but what we have set out further down in the rest of the document is what the historical provisions are so that your Honours have them.  The submission is they do not have any bearing on the submission I have just made, but your Honours have a list of them if your Honours wish to pursue that issue.

The final point, of course, which is sauce for the goose and sauce for the gander on this issue – my point is, whichever Act it is that applies, they were not redeemable under the 1961 Act.  They are not redeemable under the 2001 Act either because there were no other shares on issue.  My friend’s argument applies exactly the same way in reverse.  On his argument it would not make any difference either.  Your Honour, those are the submissions in reply.

FRENCH CJ:   Thank you, Mr McHugh.

MR JACKSON:   Your Honours, so far as this document my learned friend just referred to is concerned – and we only saw this just before we came into Court – may we perhaps say seven days to reply to the Court as to whether we agree or disagree with this document?

FRENCH CJ:   Yes, you may, Mr Jackson.  The Court will reserve its decision.  The Court adjourns until 9.30 tomorrow in Sydney and 9.30 tomorrow in Canberra.

AT 10.45 AM THE MATTER WAS ADJOURNED