Bennett v Minister of Community Welfare

[1991] HCATrans 300

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P23 of 1991

B e t w e e n -

WAYNE KENNETH BENNETT

Appellant

and

MINISTER OF COMMUNITY WELFARE

Respondent

MASON CJ

DEANE J

TOOHEY J

GAUDRON J

McHUGH J

Bennett 25 23/10/91

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 23 OCTOBER 1991, AT 9.45 AM

(Continued from 22/10/91)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Tannin.

MR TANNIN:  May it please Your Honours. This was always a

case of claim for damages arising by a tort

allegedly committed by the respondent. It was

never a case involving a claim for compensation for

breach of a fiduciary duty and it was a matter of

interest and alarm on this side of the continent

when that proposition was actually put. I think

Your Honours will recall the day of the application

was the day when Sesame Street interrupted the

proceedings of the High Court in Western Australia.

That point, however - it was an interesting - - -

McHUGH J:  You regarded the suggestion as bizarre as the

intrusion of Sesame Street?

MR TANNIN:  Yes well, I was hoping Your Honours would take

that point. That point is important though because
this respondent is protected by section 47A of the

Limitation Act, and none of the appropriate seeking of leave, whether it be in writing or within time,

has ever been sought in relation to such an action

in equity. That is the first point.

The second is, that we fought this case all

the way through, not only in the trial but in the

Full Court, on the basis that it was an action in tort and, with great respect, it is quite unfair to

introduce now such a claim which avoids very strict

limitation periods and puts the respondent in

jeopardy of answering a claim which it has never,

ever had to meet.

The grounds of appeal, in my submission, do

not, in fact, reveal significant error of law.

They are confined in ground (a) to an attack on the

learned trial judge's use of the "but for" test,

which I will come to shortly, and in the following

grounds involve a confusion of the concept of

"causation" with the concept of "foreseeability"

which I will unravel also.

The principles of law relating to negligence

can be very briefly summarized. The plaintiff must

establish that the defendant's breach of duty was

the cause, or at least a cause, of the damage

suffered - that is Chapman v Hearse. A finding of

causation is a finding on a question of fact, and

Your Honours have clearly made that plain in the

recent decision of March v Stramare. That question

has to be decided a practical common sense way and,

again, there is authority in March v Stramare for

that proposition.

May I take Your Honours to the authority,

Fitzgerald v Penn, which is No 2 on our list of

Bennett(2) 26 23/10/91

authorities and, I think, contained within the

applicant's book.	I have also provided a copy to
the Court.	I take Your Honours to Fitzgerald v

Penn because I would like to take up the point

raised by Her Honour Justice Gaudron in querying my

learned friend yesterday afternoon about whether

there could be a temporal disjunction between what,

on the one hand, is a breach and the damage caused.

If Your Honours could go to the passage at page 276

of Fitzerald v Penn. It is a case considered by

the High Court involving the appropriate directions

to be given to a jury on a tortious claim. The

Court recognized fairly that there can be such a

temporal disjunction between apparent breach and

damage caused, and if Your Honours look to the

third paragraph down, from which I quote. It

starts:

It is, of course, necessary that a jury

should be told that the cause of action is

negligence causing damage. The three elements

must be stated, and negligence defined -

and the elements being, obviously, the duty, the

breach and the damage:

For the rest, what it is necessary or wise to

tell them with regard to causation must depend

on the evidence in the case. Probably more

often than not it will not be necessary to say
anything more. In the generality of cases it

is probably true to say that no real question

of "causation" arises: if the negligence alleged on either side is established the

position will very often be that it can hardly

be considered otherwise than as a cause of the

damage. In such cases any attempt to analyse

or expound the notion of causation, or even

the introduction of an adjective to qualify
the noun "cause", is much more likely to

confuse than to assist the jury. On the other hand, there will not seldom

be cases in which the attention of the jury

ought to be called by the judge to the

question whether a particular act or omission,

which they may regard as negligent, can fairly
and properly be considered a cause of the

accident.

Our case here, Your Honours, is that there is such

a disjunction because, clearly, there was a breach

as found by the learned trial judge in that there

was a failure to provide some independent advice,

but the damage which the - - -

Bennett(2) 27 23/10/91

GAUDRON J: Yes, what is the damage that you say was

suffered?

MR TANNIN:	The damage is the damage that occurred in 1979, and not before, when the appellant lost the chance
to sue the respondent in negligence for the loss of his fingers.
GAUDRON J:	You see it seems to me that that is actually

looking somewhat too far into the future. Was not

the damage that was really suffered the loss of an

opportunity to make an informed decision as to the

rights or the claims that might be pursued?

MR TANNIN:  No, with respect. The duty that arose, arose

because this appellant was a ward of the

respondent, or its Director. He was a ward during

the period 1973 to 1975 and in 1975 he was some

19 years of age, so by the Age of Majority Act he

was for all intents and purposes an adult at that

stage. The duty that arose and which was pleaded

against us and which was found against us was that

having had that relationship, there continued an

obligation to provide independent legal advice.

Now, our submission is that that is

precisely - - -

GAUDRON J:  Why was that duty - it was not just because he

was a ward - the duty was directed to the avoidance

of some harm.

MR TANNIN:  No.

GAUDRON J: Was it not? The duty does not arise in a common

law context independent of a foreseeable harm.

MR TANNIN:  No, Your Honour. The duty arose here because,

as His Honour the learned trial judge put it, there

was, in effect, a conflict and the characterization

of the duty is made at page 21 of the appeal book,

number one, in the judgment of His Honour
Justice Nicholson.	The finding there, in

characterizing the duty - and it is very important

that we characterize the duty correctly - was that:

the plaintiff is correct in his contention

that the Director owed a fiduciary duty to

him; that included in that duty was the

obligation to assert rights on his behalf -

and bearing in mind it was a duty confined within

1973 and 1975 - - -

GAUDRON J: But we are not talking about a common law duty.

I thought you just told us the whole case had been conducted on the basis of a common law duty.

Bennett(2) 28 23/10/91

MR TANNIN:  Yes.

GAUDRON J: Well, what is the common law duty?

MR TANNIN:  The common law duty was the one that was pleaded

against us in the statement of claim, that is, that

we were negligent in not having provided

independent legal advice.

GAUDRON J:  The question I ask you is: what was the

foreseeable risk of harm that	called that duty
forth? If it is a common law	duty it had to be
called forth by a foreseeable	risk.

MR TANNIN: Foreseeable risk would be that the appellant

would receive no advice. Our argument is - - -

GAUDRON J: But an advice by itself is nothing.

MR TANNIN:  Your Honour, the problem with it is that the

duty that was pleaded against us, and what we were

said to have failed to provide, was independent
legal advice, not correct advice. It was never in

issue between the parties that we provide legal

advice of a particular quality or, indeed, we

provide any information which would lead to that

advice. It was merely that we provide independent

legal advice.

DEANE J: But implicit in that must be independent competent

advice given in a context where the relevant

information was available. I mean, if the Director

had just shoved a back sheet around this boy and

sent him into the legal service, he would not have

discharged his duty in respect to obtaining proper

legal advice for him.

MR TANNIN:  In our submission, the advice that he got from

the late Mr Martin was independent legal advice.

DEANE J: That is not what I put to you. What I put to you

was competent advice given on the proper

information.

MR TANNIN:  Your Honorr, it was never part of the Director's

duty to warrant the quality of the advice.

DEANE J:  I do not think you are understanding what I am

putting to you, and that is, it was the Director's

duty to obtain competent legal advice based on the

provision of the necessary information which was in

the Director's control.

MR TANNIN:  The duty was to provide independent legal advice

and, we say, no more. The question of the

competence of that legal advice was a question that

related to the legal advisor's personal

responsibilities. Now, in this case - - -

Bennett(2) 29 23/10/91

DEANE J: But I was directing you to "based on proper

information".

MR TANNIN:  That was also argued but our submission is that,

bearing in mind that there was the conflict

initially, the key to the advice was that it be

independent and it would detract from that
independence if the legal advisor made his or her

assessment on the basis of information provided by

us. The point in this case was that the legal

practitioner, Mr Martin, did, in fact, have

sufficient information to at least alert him to

what the difficulties were. It is clear in

the - - -

GAUDRON J: But, do we not proceed on the basis, even on

your view, that the probabilities were that if

independent legal advice was obtained, it would be

competent? We do not go round on the assumption

that it was probable that it would be incompetent.

MR TANNIN:  Your Honour, the advice given by Mr Martin,

whether it was right or wrong, was not properly or

fully determined in the trial nor, indeed, in the

Full Court. We know now, or indeed in hindsight,

that the advice was wrong but the scheme under

which Mr Martin gave advice was a very good scheme.

GAUDRON J:  But that is not the point. The point is in

relation to the duty of care, which is not disputed

from your side of the bar table, namely, to secure

independent legal advice. Just on that view, do we

not operate on the assumption that it is more

probable than not that such advice would be

competent?

MR TANNIN:  No, and we say that because - - -

GAUDRON J: That is a very strange statement coming from the

legal profession itself. If we operate on a

different assumption, I do not know why we ever go

to lawyers.

MR TANNIN:  Your Honour, you say "we", but the respondent,

the Minister for Community Welfare, was not there

to warrant the quality of the advice and you cannot

read into "independent legal advice" some kind of

warranty of the ability of the practitioner. What
you have to look at is what actually occurred here.

This appellant - he was a young man then of
20 years of age - actually saw the practitioner.

The practitioner was a barrister who had - if I

just pick up the other point that was raised
yesterday afternoon - been referred this brief

pursuant to the legal assistance scheme. That had

a pro bone element.	I think the charge in the
evidence was $200.

Bennett(2) 30 23/10/91

At that time the independent bar here had

relaxed its rules to allow that kind of referral so

that he, in effect, was acting in the role of

barrister and solicitor, and before that

practitioner he had the appellant himself, and the

appellant himself, as appears from Mr Martin's

notes, gave pretty comprehensive information about

what had occurred. He gave the sort of information

that might interest a practitioner determining what rights, if any, he had such as the fact that he was

16 years of age, that he had never used a circular

saw, that people were not supervising him properly

and that he had lost his fingers.

All of that information was before the

practitioner and on all of the evidence, not only

the part of the cross-examination my learned

referred you to, but earlier on pages 122, 123

and 124, it is plain on the appellant's evidence

that he told that practitioner what had occurred,

that he explained to him the accident - I am

referring to page 122 of the appeal book. He

explained the circumstances of how his hand got

caught.	He explained that he had never been in a
carpenter's shop.	He explained his side of the
story.	So all of the information was properly

before the practitioner and he made an assessment.

We do not know now, and there has never been any evidence, of his reason why he made the

assessment that there was no claim other than that

which he mistakenly took as a worker's compensation

claim. The point is that when Your Honour talks

about providing the information, all of the

information that was necessary to make a competent

legal assessment was there. We were only required

to provide independent legal advice. Now that is

precisely what he got from Mr Martin in 1976, and

there is no damage that is caused by reason of the

fact that we failed to give independent legal

advice because on all of the findings of fact which

are not challenged the cause of the appellant not

proceeding with his claim before 1979, that is

before the time of the damage occurring, the

statutory bar, was reliance on Mr Martin.

GAUDRON J:  It does seem to me that this case depends very

much on how you identify the harm in respect of

which it was the respondent's duty to guard against

by this duty that has been asserted. Why does one

not say the duty was to provide independent legal

advice so as to guard against the risk that this

person might not be able to make an informed

decision as to the pursuit of claims? I should
say, if you say that, it then seems to follow, of
course, that the second lot of advice has got

nothing to do with anything because it is certainly

Bennett(2) 31 23/10/91

not advice on which an informed decision could have

been made.

MR TANNIN:  Your Honour, this appellant was a ward between

1973 and 1975 as is clear. He went as an adult to

Mr Martin. In our submission, it was following

Mr Martin's advice that he did not pursue his

action and that he, therefore, allowed the

statutory limitation period to elapse. All we were

ever required to do - - -

GAUDRON J: But that, again, is identifying the harm as

bringing the action.

MR TANNIN:  Yes.

GAUDRON J: Again, that seems to me to be a little remote in

itself.

MR TANNIN: That is how the matter was determined.

GAUDRON J:  It is an aspect of the calculation of the

monetary sum that represents the harm but if you

characterize the harm as the inability to make an

informed decision, that seems to be the immediate

harm that flows.

MR TANNIN:  Your Honour, the harm has always been

characterized in this case as the loss of the right

to sue which is caused by the elapse of time. The

elapse of time does not occur until 1979 and to say

that by not giving independent correct advice he

may have been more vulnerable to listening to

advice from Mr Martin is really beside the point

because the only harm that ever occurred at which

the assessment was directed was the harm that

occurred in 1979. He had suffered no injury prior

to the elapse of the limitation period.

It is not a situation, Your Honour, which can be fairly characterized as two causes, as my friend

suggested yesterday, because whatever we did, or
failed to do, had done no injury.	The injury that

occurred was that directly caused on the findings

of fact through the appellant listening to, or

relying upon, the advice, right or wrong, of

Mr Martin, and whilst I would accept that the
omission to provide independent advice, if

Mr Martin had not intervened might, if all things,

or other things were equal and he did not seek

other advice, have led to this.	The fact is that
it did not.	The fact is that there is directly a

question in this case of the effect of Mr Martin's

advice. It is just completely contrary to the

evidence to say that Mr Martin's intervention

in 1976 is irrelevant because on the plain

evidence, and it comes out in cross-examination,

Bennett(2) 32 23/10/91

there was no re-examination of the appellant in his

testimony to qualify or clarify that evidence in

any way. The reason he has not proceeded with his

claim, the reason he has suffered his loss, is

reliance on Mr Martin and that is not something for

which we can be responsible.

It was put by my learned friend yesterday that

the application of the "but for" test must be

qualified by common sense and that is obviously the

law, but you cannot use this idea of common sense

to actually overcome the weight of the evidence

itself. It cannot be some kind of formula to

overcome what the evidence reveals and thereby

reach a result desired by the appellant.

The qualifications in March v Stramare to the

"but for" test all arise because of its inadequacy

to deal with those situations where there are two

competing causes. Your Honours were clear about

that, but there are not two competing causes.

His Honour the learned trial judge made that

finding of fact in his judgment at page 25,

line 19. His Honour found:

It does not seem to me that this is a case

where another factor combined with or

duplicated the effect of the defendant's

breach of the first duty to jointly produce

the plaintiff's harm.	The new factor
supplanted that breach.

If there were two competing causes one would fairly

see that the "but for" test could produce an
artificial result, but that is not the evidence
here. The evidence unequivocally points to the

intervention of Mr Martin which, we say, was at

least an informed intervention by a qualified legal

practitioner, right or wrong, and it was upon that

which the appellant relied. The duty of providing

independent advice could never go further than
that.	We could never be said to be required to

provide a qualified legal practitioner because

that, surely, was not the duty of - I withdraw

that.

DEANE J:  Mr Tannin, what if, reading page 25 which you have

taken us to, one were to form the view that the

central passage on that page was simply wrong or

that, at least, one should assume that if the

Director had arranged for independent advice, the

probability was the advice would have been to

institute proceedings?

MR TANNIN: 

Your Honour, I would read that paragraph in the

context of the learned trial judge's original
finding that the duty extended to the provision of

Bennett(2) 33 23/10/91

independent advice and not a duty as to the quality

or character of the advice.

DEANE J: But assume for the moment that the correct view is

that if independent advice had been obtained it is

probable that it would have been correct. That
means that if independent advice had been obtained

it is probable the proceedings would have been

instituted. What, then, is the relevance of the

fact that incompetent advice was subsequently

obtained?

MR TANNIN:  The incompetent advice, if it be that - and

there is really no finding about that - - -

DEANE J:  You say that, but a few minutes ago you said it

was wrong.

MR TANNIN:	I accept, in hindsight, it is.
DEANE J:	And it was given on the basis that the proceeds of

an insurance policy were worker's compensation

payments. I am not suggesting there was any fault

on anybody's part because of lack of instructions,

or what have you, but it was incompetent advice.

MR TANNIN:  Our submission is that that advice,

nevertheless, was the sole cause of the appellant's
damage, and if it is the sole cause, then that

prevents his recovery.

GAUDRON J:	The other aspect, of course, is if you limit the duty to during the period of wardship, as has been pleaded and apparently accepted at all stages, and there had been advice given during that period, and
we will assume for the moment that it was correct,
then there would never have been any occasion for the advice of Mr Martin which came after the period of wardship. That is to say, had the confined duty
which is pleaded been discharged, it is improbable
that Mr Martin would have entered the picture.
MR TANNIN:	Your Honour, this respondent accepts there was a

breach.	What we say is that there is a time gap
between the breach and the actual damage caused.	I

take Your Honour's point but that is not what

occurred. What occurred, in fact, unequivocally on

facts, is that as an adult this appellant sought

advice from a qualified legal practitioner. He put

the facts before him. He got a result. The result

was, we accept, wrong. The result, nevertheless,

is the reason why he did not issue proceedings and

it is that which caused him damage.	We are not
responsible for that damage.	Our breach does not
cause that damage.

Bennett(2) 34 23/10/91

That is our case, and it is not a case where

there is any competition between the various

causes. The learned trial judge found that the

true cause of the damage occasioned to the

appellant was reliance upon Mr Martin's advice. So

we never get, with respect, to consider what would

have happened if he had got advice from someone

else who possibly would have given advice to issue

proceedings because his right to issue proceedings

as an adult persisted right through to the age

of 23, I think he was, in 1979.

Now, his sole reason, on the evidence, for not

issuing proceedings unequivocally was reliance on

Martin, and we do not have to defend what occurred

because the very thing we were supposed to give

him, on the evidence, is the very thing that he

got.

My learned friend suggests that the

application of that structure rather infringes the

position in Mahoney v Kruschick, but our submission

is that you can draw the line between what occurred

before 1976 and what occurred after 1976. And even

though His Honour Mr Justice Nicholson refers to
the intervention as a novus actus interveniens, one

could easily remove all reference to novus actus

interveniens and simply treat it as a factual

matter of causation. On either construction, the

facts simply defy any other conclusion than the one

reached by the learned trial judge and confirmed by

the majority in the Full Court.

The minority in the Full Court,

Mr Justice Rowland, ended with a proposition that

the case ought to be decided not on the basis of

any application of nevus actus interveniens, but on

the basis of the old axiom that "two wrongs don't

make a right". With immense respect, that assumes

the very thing we say in evidence is not proved.

There was no actual damage caused by the omission,

the breach of the respondent; the damage is purely

that which is caused by reliance on Mr Martin. And

even if my learned friend would urge you to apply

the "but for" test in a commonsense way, we say

that an application of the test in that way leads

you back to the conclusion already reached by the

trial judge. You cannot supplant the evidence by

the convenient and fairly vague reference to

commonsense, when the result always follows from

the evidence and nothing else.

As to the question of contribution raised by

my learned friend, the only thing I say about that

is that that was never a matter in the grant of

special leave, as far as I understood it.	Do
Your Honours wish me to - - -

Bennett(2) 35 23/10/91

MASON CJ:  No.

TOOHEY J: It goes only to the assessment of damages.

MR TANNIN:  Yes, it would. And indeed - - -

MASON CJ:	It was agreed yesterday, I thought, by your opponent, that if he were to succeed this would be
a matter that would be considered by the supreme
court.

MR TANNIN:  Yes. In fact it has already been argued, but

Their Honours have not dealt with it and I do not

pursue that further.

As to the question of the matters of

foreseeability raised in the following grounds of

appeal, (b) through to (f), I think it is, our

submission is plainly that foreseeability is simply

not relevant to the determination of causation.

You have to firstly factually determine causation,

and then conclusions or determinations about

foreseeability simply define the limits of

liability by reference to the breach of duty and

the damage caused thereby. So, in our submission,

there is a fundamental confusion in the grounds of

appeal which are (b) through to (f), and those

submissions are summarized in my outline at

paragraph 2. The authority for the proposition I

have just put is chapter and verse. Unless

Your Honours see any further matter I should

address, they are my submissions.

MASON CJ: Thank you, Mr Tannin. Yes, Mr O'Sullivan.

MR O'SULLIVAN:  Your Honours, may I briefly mention

something which was touched on in discussions

yesterday and again this morning between

Justice Gaudron and my learned friend concerning

what it is that constitutes the loss that the

plaintiff suffered. This might be an important

point. What I have to say may to some extent be a

modification of what I said yesterday, but it needs

to be said, I think.

There is a distinction to be drawn, of course,

between the loss of a chance and the assessment of

the value of that chance, and the loss of

something, for example a right to sue, that there

is a chance would have been exercised. It is the

Chaplin v Hicks distinction and the Norwest

Refrigeration distinction. The cases, Norwest

Refrigeration and Chaplin v Hicks - neither of

those cases are on my list of authorities. Could I

hand to Your Honours a copy of Norwest

Refrigeration.	I have given my learned friend a
copy.	The distinction is well pointed out, with

Bennett(2) 36 23/10/91

respect, by Mr Justice Brennan in a passage in his

judgment in that case. That was the case,

Your Honours may recall, of a failure by a

co-operative company to effect insurance for a

fisherman who was a member of the co-operative

company, and a question arose as to what flowed

from that failure and whether it was, in fact, the

loss of a contractual right or the loss of a chance

that such a right would have arisen.

At page 172, Mr Justice Brennan says this, in

the last sentence of the paragraph which ends in

the middle of the page:

Before Norwest's cause of action was

established it had to prove that it could have

and that it would have taken steps which would
have resulted in effective insurance of the

Sonoma -

which is the name of the boat -

at the time of her loss.

Then the next paragraph:

The present case is not similar to Chaplin v

Hicks -

which was a case involving the loss of a chance to

take part in a lottery, effectively. Then,

half-way down that last paragraph on that page, His

Honour says this:

But in the present case, there is no

contractual right to be valued ..... The

question is whether a specific loss sustained

by Norwest - the absence of effective

insurance of the Sonoma when she was lost -

was was caused by the Co-operative's
negligence.	The immediate opportunities which

Norwest lost when it was not informed of the

Co-operative's failure to obtain effective

insurance are not themselves heads of damage

to be valued as though they were compensable

lost rights. They are links in an alleged

chain of causation.

Now, on mature reflection, I think that that

is this case, Your Honour. What we say is that we
lost the right to sue, and we lost that right in

1979 or 1980, and the question of whether we would

have exercised that right as a result of advice

that we should have got but did not get is a

question of whether there is a causal link between

the loss and the breach of duty.

Bennett(2) 37 23/10/91

We would say as to that, that we established

the causal link simply this way. There was a right

to claim damages for personal injuries, as

His Honour found. There was a right to receive

independent advice and a breach of that duty, as

His Honour found. The prudent advice that we

should have received and did not receive ought, as has been mentioned, to have been competent advice, and it follows that it ought to have been advice

that we should have sued. And in my respectful

submission, that is the proper analysis of the

facts - - -

TOOHEY J:  On that basis, Mr O'Sullivan, when was the cause

of action complete?

MR O'SULLIVAN:  The cause of action arose when we lost the

right to sue, Your Honour, in 1979 or 1980,

depending on the date you take under the

limitation.

The same point can be arrived at by looking at

what this Court said in Malec v J.C. Hutton. Could

I also hand to Your Honours that case. It is just a brief point. The point that I seek to bring out

is made by Justices Deane, Gaudron and McHugh at

pages 642 to 643, under the heading "Assessing

Damages for Future or Potential Events". What

Your Honours said there was this:

When liability has been established and a

common law court has to assess damages, its

approach to events that allegedly would have

occurred, but cannot now occur, or that

allegedly might occur, is different from its

approach to events which allegedly have

occurred. A common law court determines on

the balance of probabilities whether an event

has occurred. If the probability of the event

having occurred is greater than it not having

occurred, the occurrence of the event is

treated as certain.

That is the point, in my submission, in this case.

McHUGH J: But that passage is inapplicable in this case, is

it not, because of the introductory words, which

are words of some importance in that passage:

"When liability has been established". In this

particular case there is a question of liability.

MR O'SULLIVAN: Yes, I take Your Honour's point. Yes, I was

focusing rather on the last sentence that I read
out. Perhaps that is a sentence that will generate

the case, Your Honour.

Bennett(2) 38 23/10/91

McHUGH J: Yes. I think, as a general rule, that so far as

liability is concerned the courts have not yet seen

the loss of a chance as itself constituting a

breach.

MR O'SULLIVAN: Yes. In any event, I come back, I think, to

the point that Mr Justice Brennan made in Norwest

Refrigeration, the distinction between Chaplin v

Hicks, and that particular case is the same as the

distinction, in my submission, that can be drawn

here. If Your Honours please, they are my

submissions in reply.

MASON CJ: Thank you, Mr O'Sullivan. The Court will

consider its decision in this matter.

AT 10.28 AM THE MATTER WAS ADJOURNED SINE DIE

Bennett(2) 39 23/10/91