Boral Masonry Ltd (Formerly Boral Besser Masonry Ltd v Australian Competition and Consumer Commission

[2002] HCATrans 178

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M1 of 2002

B e t w e e n -

BORAL MASONRY LTD (formerly BORAL BESSER MASONRY LIMITED)

Appellant

and

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Respondent

Directions hearing

HAYNE J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 7 MAY 2002, AT 9.31 AM

Copyright in the High Court of Australia

MR C.M. MAXWELL, QC:   If your Honour pleases, I appear for the appellant.  (instructed by Blake Dawson Waldron)

MR D. SHAVIN, QC:   If your Honour pleases, I appear for the respondent.  (instructed by the Australian Government Solicitor)

HIS HONOUR:   Yes.  Now, I have read the papers in the matter.  First, Mr Maxwell, am I right in understanding that each of the documents in respect of which an order is sought was subject to some form of order for confidentiality below?

MR MAXWELL:   Yes, your Honour.

HIS HONOUR:   Second, are there some third party documents there, that is, documents to which the party – particularly Boral I am thinking of – should not have access?

MR MAXWELL:   There certainly are third party documents, your Honour, and in the schedule to my instructing solicitor’s affidavit, there is reference, for example, to documents from Rocla and Pioneer ‑ ‑ ‑

HIS HONOUR:   The form of order I am minded to make is to restrict inspection.  My first draft had it, “to the parties or their legal representatives” but, then, if there are third party documents in there, assumedly, Boral is not to have free access to its competitors’ trade plans unless it has had them already.

MR MAXWELL:   That is so, and it was that I was about to clarify with your Honour.  Certainly, there were third party subpoenas or discovery and we, that is Boral, did have access at least to Pioneer and Rocla documents.  C & N, the effective complainant, had confidential commercial figures.  We did not have access to all of those.

HIS HONOUR:   All of the documents that are listed in the two schedules ‑ ACCC have produced a schedule, you have produced a schedule – if I were to order that none of those was to be accessible to any except the legal practitioners for the parties, is that going to present a problem?  That is, capable of being searched in the Registry, save by legal practitioners for the parties, is that going to present you with a problem?

MR MAXWELL:   That is not going to present a problem at all.  What we had agreed to suggest to your Honour was that, on reflection, the only place in which confidentiality is an issue is in the Registry.  In other words, as between the parties access has been had to those documents and the Court should have access to all of them and that it be just one set that will be the subject of the removal of the confidential parts.

HIS HONOUR:   Well, so you say.  What I am minded to direct is that the solicitors for the appellant uplift the appeal books; the appeal books have removed from them every copy of these confidential documents and they be rebound in a separate volume marked “Confidential Exhibits”.  There are several reasons for doing that, not least that when we come to prepare reasons it is apparent that we are dealing with confidential exhibits.  If we try to do it some other way, the chance of slip just increases exponentially.  Now, I know it is a fuss but, quite frankly, this is something the parties should have sorted long since.

So, my present mind is to direct the solicitors for the appellants to uplift the appeal books, take out the confidential papers, rebind them, and go from there.

MR MAXWELL:   Your Honour, of course we will do as your Honour ultimately directs.  If I might respectfully say this:  there was naturally sensitivity about confidentiality at the outset of the proceedings at first instance.  As the trial progressed that sensitivity disappeared, not least because his Honour was saying, “Well, is this really seriously maintained?  After all, we are talking about 10 years ago now.”  And on the appeal before the Full Court, as I recall – and my learned friends will correct me if I am wrong – there was little concern about confidentiality.  I am instructed that the task that your Honour proposes, which is the one we were seeking to avert by suggesting just attending to the set in the Registry, the full task is a very substantial one and we were accordingly – I accept entirely what your Honour says about the need for Justices to know if a document they are looking at is a confidential one, not to be referred to or quoted from in a judgment.

HIS HONOUR:   All of this drives me to the point:  really, how confidential are they still?  If they are, that is how we are going to deal with them.  If they are not, let us not trouble.  It does not fuss me one way or tother, but if they are truly confidential I will want them uplifted and removed.

MR MAXWELL:   Your Honour, I will give way to my learned friend.  He may have some other useful submissions to make.  What I might ask your Honour to do in the light of the comments your Honour has made, is stand the matter down.  We can review the schedules.  I think it is our common view that confidentiality was over‑claimed and that with the passage of another four years since the pleadings were drawn, that would be a fortiori.

HIS HONOUR:   But you are down now to something, I think, like 20 or 25 documents. 

MR MAXWELL:   It is not many.

HIS HONOUR:   It is pretty slim, and I was gratified to see that it was as slim as it is.

MR MAXWELL:   Yes, your Honour.  Another suggestion – the practicality of which I will ask my instructing solicitors about during the break – is rather than the removal and the rebinding, someone with a “Confidential” stamp, stamping the pages may be as effective.  It will mean that the Court has the books in correct page order but any document will show on its face if it is confidential.

If I might just foreshadow, your Honour.  There are two other issues we need to raise with your Honour.  One is that - your Honour may not have had a chance to see the appellants’ outline of submissions filed late yesterday but as we were conscious and as the Court pointed out to us, it is over the 20‑page limit in the practice direction.  We will need your Honour’s leave for that to be properly filed.  The practice direction itself prohibits the filing of written submissions of more than 20 pages without the leave of the Court or a Justice.  Unless your Honour requires it, I will not ‑ ‑ ‑

HIS HONOUR:   That is one issue.  You said there was ‑ ‑ ‑

MR MAXWELL:   That is one issue.  The other is one of timetabling and we have a tentative agreement, subject to your Honour’s view.  Our learned friends would have been due to file their responding submissions by Thursday, three days as we were informed.

HIS HONOUR:   Yes.

MR MAXWELL:   I am instructed that from the appellants’ point of view receipt by noon on Monday would be adequate to enable us to do a reply by, not the Thursday as otherwise applicable but by the Friday, then the Court would have the reply before the weekend before the hearing.

HIS HONOUR:   Right.  Now, can I add to that timetable two other considerations, one of them practical, the other of a more fundamental nature.  First, practical:  we have, I think, something like 33 appeal books.  They are not numbered sequentially by volume.  Do we need to retain the volume numbering that was applied in the Full Court of the Federal Court?  I mean, we have volume 7, parts 1 to 4 or something, and the chaos that that will create in the course of oral hearing is evident.  What I am contemplating is requiring renumbering sequentially leaving the parties to deal with the collective views about the utility of 33, or whatever it is, appeal books.

MR MAXWELL:   If your Honour would allow us to discuss that matter, with respect.  I can see entirely why your Honour would want that.

HIS HONOUR:   That is one thing.  The next thing is more difficult and to that end can I supply the parties with drafts of some directions that I had formulated which will give you a target at which to fire.  What I have in mind is particularly the directions numbered 4.  With a 33 volume appeal book there is no way the Court is going to be taken to all of that 33 volumes in the course of oral argument.  It just will not happen.  Second, I assume that there are some documents which the parties or, at least, each side would say are critical documents for each of the issues.  There would be enormous advantage, I think, if the parties were required to identify in advance of hearing those documents which they regard as the critical documents by issue.  It has to be done by issue because we have, at least, have we not, four classes of issues?

MR MAXWELL:   That is right.

HIS HONOUR:   There may be more but I had identified the issues as market definition, degree of market power, taking advantage of market power and purpose.  Does that cover the field?

MR MAXWELL:   Yes, it does, your Honour.

HIS HONOUR:   Now, if we can have each party’s identification of which are the critical documents, that will help, but also, I think, before the hearing commences we would need to know those parts of the appeal book to which counsel are going to take us in the course of oral argument so that we can flag them.  The practicalities of this case are really looming very large.  With a seven member Court, 33 volumes, we have to get this running in a way that is easy. 

It seemed to me that a way of dealing with it was to require the parties to identify by reference to issues – again, do it by reference to issues – those pages of the appeal book ‑ and I mean pages, not documents – to which the parties intend to take the Court in the course of oral argument and read from and then get you to identify the passages within the pages because you are not going to, I assume, stand and read the whole pages at us, at least not without interruption.  Therefore, is that going to be practical? 

It seemed to me to be the way to draw the attention of the Court early to the way in which this argument is likely to unfold in oral argument.  Now, if there is another way, a better way of doing it, then by all means propose it and let us see if we can find some way of doing it better.  But those are the things that I would be grateful if the parties could think about and talk about.

Now, with that sort of agenda, how long do you want?  Do you want to go away and talk about it for the morning and coming back at 2.15?  Do you want to go out and talk about it for 10 minutes and come back at 10 o’clock?  It is a matter for parties ‑ ‑ ‑

MR MAXWELL:   Yes.  Your Honour, I would have thought we ought not to need more than 45 minutes.  In other words, my learned friend needs to speak to his leader.  I think I have a delegation for that purpose. 

HIS HONOUR:   That is now on the transcript, Mr Maxwell.

MR MAXWELL:   But we are in my learned friend’s hands.  Might I just say this, your Honour, because it is important to confront exactly what your Honour is raising.

HIS HONOUR:   Yes.

MR MAXWELL:   From a practical point of view, I am confident that we will be saying that it can be done and since the Court needs it, it ought to be done.  Two points to make:  your Honour will see we have made the outline full, with lots of footnotes flagging principally the parts of the judgments on appeal and, most particularly, the judgment at first instance, to which we wish to go.

HIS HONOUR:   And it is not my intention that you should do anything more about the judgments.

MR MAXWELL:   I understand that, your Honour.

HIS HONOUR:   It is just the evidence that troubles me.

MR MAXWELL:   I entirely understand what your Honour is requesting.  We have also quite deliberately included excerpts from the evidence, both from the market participants and the expert economists, to relieve the Court of the need to go to the primary evidence.

HIS HONOUR:   Are we going to confront challenges to ‑ ‑ ‑

MR MAXWELL:   Findings of fact?

HIS HONOUR:   ‑ ‑ ‑ findings of fact?

MR MAXWELL:   No, and that is the point I want to make.

HIS HONOUR:   Right.

MR MAXWELL:   Your Honour will see that we have made about four or five times in our outline this point:  the evidence on key issues was mostly unchallenged and unanimous.  That is to say much of the evidence on which Boral relies was given by the Commission’s witnesses and on those matters the Commission’s counsel did not cross‑examine our witnesses.  For example, critically the state of vigorous competition, low demand and over‑capacity.  Those matters were common ground and there is a lot of evidence about them and, for our part, we will not be taking the Court to any of it.

HIS HONOUR:   If there were a nil return to this task ‑ ‑ ‑

MR MAXWELL:   Then so much the better.

HIS HONOUR:   ‑ ‑ ‑ then halleluiah would be the cry from all concerned.

MR MAXWELL:   Indeed.  All I was doing, your Honour, perhaps prematurely but nevertheless for your Honour’s information to underline this point, we do not submit and will not be submitting that this Court needs to engage in a review of the evidence.  His Honour made findings.  They were not challenged on appeal, with perhaps minor exceptions.  They cannot now be challenged as fact.  The characterisation of the conduct in the undisputed market circumstances is in issue, though we have made submissions about what the conclusions should be.  So we would hope, and intend, for our part, that the debate will be at this level, rather than look at what Mr Kupke from C & M said at page 4,000, because his Honour was the trier of those facts.

HIS HONOUR:   Right.

MR MAXWELL:   Of course, we will see in our learned friends’ submission whether they dispute our repeated assertions that the evidence was uncontested.  What we complain about in large part is the Full Court’s unaccountable departure from those facts, or ignoring of the facts, with great respect to their Honours.  We have said why and where.  So it is at that level of debate that we are seeking this Court’s intervention to say on those facts, and we have said in our specification of the issues, the fundamental question is, given the overwhelming body of evidence, uncontested, unanimous side to side, including between the expert economists, was it open to the Full Court to overturn his Honour on every point?

HIS HONOUR:   Well, if at the end of the day, from your side of the record – let us await ACCC’s side of the record emerges when they file their outline – you are not going to be wanting to take us down into the underlying evidence but will rest on findings at trial and the way in which the Full Court treated those findings, so much the better.

MR MAXWELL:   Yes.  I really want to reassure your Honour that is certainly the way we seek to put the case and we hope that appears from the submission.

HIS HONOUR:   Again, I am concerned to be in a position where the other members of the Court, as 33 volumes are delivered to their chambers, may have some appreciation of whether they ought to be digging around in the underlying facts or whether they should before argument expect that their attention will either be confined to, or largely confined to, with identified exceptions, what is found in the judgments below.  I suspect inevitably it will be the latter, that is, largely confined with some exceptions.

MR MAXWELL:   Very limited exceptions, yes.

HIS HONOUR:   And if before hearing we can go as far as we can to identify those exceptions, so much the better.  Now, as I say, the way in which it occurred to me that I would consider getting into the case is to say to the parties, “Well, you tell me what are the key documents that I need to read about these issues.”  “This is where the real killing ground of the case lay.  Go and read the evidence of XY, the economist, or AB, the participant in the market, and that will lead you into this issue, or that evidence between paragraphs X to Y will lead you into it.”  Now, perhaps I am going several bridges too far, but I was a little alarmed at the volume of paper.

MR MAXWELL:   Your Honour, just before I give way to my learned friend – he has submissions to make – two things.  If it would assist the other Justices to have a copy of the submissions I have made this morning so as to define more discursively ‑ ‑ ‑

HIS HONOUR:   The transcript will circulate.

MR MAXWELL:   Secondly, your Honour may in the break have a chance to look at a little more leisure at our submission and maybe by the time we reconvene your Honour will feel more reassured that there is a sufficient road map there.  None of this is meant to say we will not do what your Honour is directing ‑ ‑ ‑

HIS HONOUR:   No.

MR MAXWELL:   ‑ ‑ ‑ but rather to express the hope that the outline itself makes clear the level at which we pitch the argument, which is not about that finding of fact was not open.  It is quite the other way around:  the findings of fact were incontrovertible; no other conclusion could have been reached on the evidence.  We have never really ‑ ‑ ‑

HIS HONOUR:   But it is a different “therefore” from the “therefore” the Full Court reached, is the way in which you put your argument.

MR MAXWELL:   Yes, and we say, how could the Full Court have reached those conclusions, given what was found and given that everybody was in heated agreement about the relevant circumstances.  Not about what subjective purpose was – that was disputed.  But the context in which this occurred was not a matter of dispute.  Your Honour, I will give way to my learned friend.

HIS HONOUR:   Yes.  Mr Shavin.

MR SHAVIN:   We had overnight an opportunity to read for the first time at least our learned friends’ outline.  It does appear to us that life is not quite as simple for us as our learned friends would make out.  There are a number of us ‑ ‑ ‑

HIS HONOUR:   I thought that would have been their intention, to make your life anything but simple, Mr Shavin.

MR SHAVIN:   Indeed.  Unfortunately they may have made life more difficult for the Court too, though we do not say that as a matter of criticism.  One of the difficulties in this case is that our learned friends appear, at least it will be our submission, to have drawn fairly selectively from a large body of evidence and propound a number of matters as uncontrovertible statements of fact.  Sometimes they are taken out of context.  Sometimes they are taken from a time period which we say is not the relevant time period.  In large part they completely overlook a very much larger body of evidence to a contrary point.  Your Honour will have seen from the Full Court that ‑ ‑ ‑

HIS HONOUR:   But at the end of the day is it likely that you will be saying that findings of fact made below are open to challenge?  Have you got on a cross‑appeal or notice of contention?

MR SHAVIN:   No, not in strict findings of fact but, of course, the question of what is a market, for example – and your Honour will see from below that the Full Court took the view that at first instance Justice Heerey did not properly examine the evidence and if he had taken a fuller view of the evidence, a completely different view of market would emerge.  There is clearly a debate.  You look at the wide market.  You look at the narrow market.

Our learned friends in their outline have pointed to that material which is relevant to the wide market.  They have not pointed to an overwhelming mass of material which suggests that a narrower market is the appropriate market in this case.  But I was going to make a suggestion to your Honour as to a way forward.

HIS HONOUR:   Yes.

MR SHAVIN:   There are clearly two ways we could do it and we will do whichever is most convenient to the Court.  We were hoping that if the Court was disposed to give our learned friends leave – and we do not oppose it – to file a document of the length they have, ours would be of a similar length.  There is a lot of material to traverse, particularly as we need to draw the Court’s attention to some evidence.

We could file a document of the sort that is foreshadowed in paragraph 4 easily as to page numbers, probably slightly less easily but still doable as respect to the passages.  Another way of approaching it, if it would be of more assistance to the Court, would be to incorporate those references with some very short or short sentences in relation to groups of the references within the body of our outline.

HIS HONOUR:   They would get lost.  They would get lost.  They are footnoted and they are lost.

MR SHAVIN:   Then we are happy to do – can I ask one question of your Honour.  Was your Honour contemplating that the parties would be bound by the supplementary document or if in the course of argument it becomes clear that one needs to stray a little bit ‑ ‑ ‑

HIS HONOUR:   I cannot bind you but ‑ ‑ ‑

MR SHAVIN:   We will make it as comprehensive as we can.

HIS HONOUR:   ‑ ‑ ‑ be on notice that it would be anticipated that at this stage of litigation of this kind between the parties the parties might know what their case is and might know on what they rely and if they do not, well, it would not be the first time that has emerged in the course of oral argument in the Court, but with parties of this kind, advised as they are, it would be an unusual outcome, not to be desired.

MR SHAVIN:   We certainly, as your Honour may well have anticipated, effectively have already lists of the sort that are contemplated in 4(a).

HIS HONOUR:   Yes.  What I am after is counsel’s working documents.

MR SHAVIN:   We thought as much.

HIS HONOUR:   Yes.

MR SHAVIN:   And that certainly can be provided.  Can I ask one question of your Honour, and I do not intend to be interrogating your Honour, but it would help us in the way in which we formulate the document.  There are two ways in which the document could be done.  One would be to simply have a heading and a series of references.  The other would be to put a few words to describe the groups of references to make their relevance and the subcategory within those headings more readily apparent.  Would that be ‑ ‑ ‑

HIS HONOUR:   Anything that would make the document useful.  The document is a document intended for use and it is, therefore, something that should be prepared with that in mind.

MR SHAVIN:   It would be no difficulty for us to prepare such a document for the Court.  We would be happy to do so and I do not need to consult with my leader to ascertain that, if the Court pleases.  In relation to the timing, the 16th is Thursday.  If your Honour was disposed to give us the time that our learned friends have graciously indicated they would not oppose of Monday lunchtime for our outline, we would be able to comply with the 4.00 pm 16 for the supplementary document.

HIS HONOUR:   I think he was suggesting 4.00 pm 17, was he not, for reply?

MR SHAVIN:   We would be able to ‑ ‑ ‑

MR MAXWELL:   Yes, your Honour, I was.

HIS HONOUR:   Yes, 4.00 pm 17.

MR SHAVIN:   In relation to the Court books, it is really a matter for our friends I suppose.  We have ‑ ‑ ‑

HIS HONOUR:   No, it is a matter for both parties.  It really is surprising that confidential exhibits should be treated in this fashion.  It is a matter for both parties, Mr Shavin.  It is not just a matter for ‑ ‑ ‑

MR SHAVIN:   I did not mean to be abdicating responsibility, your Honour.  It was a matter of the logistics.

HIS HONOUR:   Yes.

MR SHAVIN:   We would have no objection to a red “Confidential” stamp being put on the relevant pages and wonder whether at this stage of the preparation whether that might not be as convenient a course as undoing and redoing the appeal books.

HIS HONOUR:   Yes.

MR SHAVIN:   It is really a matter of the Court’s convenience and the logistics for our learned friend.  In terms of our own Court books, that is probably in a practical sense how we will deal with them because we cannot really let the Court books go at this stage because we have our outline to complete.  But we are in your Honour’s hands as to that, as to whether that would be an adequate way for the Court if each page was stamped.

HIS HONOUR:   Well, second best but it will do.  It will do.

MR SHAVIN:   We do apologise that none of us saw this.

HIS HONOUR:   Now, what are we doing about sequential numbering of appeal books?  Is there any difficulty about doing that?  Any reason not to number them sequentially?

MR SHAVIN:   No.

MR MAXWELL:   No, and my instructors say that can be done.  We will need to ‑ ‑ ‑

HIS HONOUR:   You will need to uplift and ‑ ‑ ‑

MR MAXWELL:   And refile the submission with the correct volume numbers because…..that is very straightforward.

HIS HONOUR:   Yes, that is relatively straightforwardly done.

MR MAXWELL:   No, your Honour, that can be done and should be done.

HIS HONOUR:   Now, what I am minded to do is to say to you both ‑ it is now 10 o’clock ‑ go away; prepare some agreed minutes that will encompass what we have discussed.

MR MAXWELL:   Yes, your Honour.

HIS HONOUR:   By all means feel free to develop it if you think that you can come up with a more useful way of doing it than the thing I have prepared in the course of about five minutes this morning.  But I think, unless it were inconvenient to the parties, mention it again at 2.15, so that you are not drafting on the run when things go awry.  Now, can I just check off the checklist.  We need to deal with, one, the access to confidential papers, if I can describe it that way; two, the marking of those papers in the appeal books; three, the renumbering of volumes; four, the leave to file outlines exceeding 20 pages but not more than 35 pages; five, the refixing of timetable, 13 May for respondent’s outline, 17 May reply; six, we need to deal with the paragraph 4 issue.  At the moment I see that as still a desirable solution, but there may be pride of authorship rather than commonsense being displayed there.

MR MAXWELL:   No, your Honour, we have, I think, respectfully agree with the course proposed and we will include that in the minutes.

HIS HONOUR:   Now, is there any other matter that we would need to tick off?

MR MAXWELL:   Not that I can think of, your Honour, no.

HIS HONOUR:   My intention would be that I would draw to the attention of the other members of the Court the course of discussion during the morning so that they may know what has been said and done about the otherwise voluminous record.

MR MAXWELL:   If your Honour please.

HIS HONOUR:   Yes.  Well, if I adjourn to 2.15 and you may mention it then.

AT 10.05 AM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.18 PM:

HIS HONOUR:   Mr Maxwell, I have received the minutes of consent orders.  Thank you.  The only comment I have on them is reflected in the amendment that I have noted as a proposed paragraph 2(b).  Just to keep the record of the Court intact by saying that those bits which are taken out of the file record are then put back onto the file as a separate bundle, so that we have an intact file.

MR MAXWELL:   Yes, your Honour.

HIS HONOUR:   And I thought if we put a cover sheet on them referring to the order of today, that will at least alert people in later times where to go to find why they are dealt with in that fashion.  Now, subject to that, is it clear that the schedules to the order will comprise all of the documents that were referred to in the – I think they were exhibits, were they not, to affidavits filed by each side?

MR MAXWELL:   Yes, your Honour.

HIS HONOUR:   There is no change from those schedules?

MR MAXWELL:   None at all.  We had in mind that we would attach both schedules.

HIS HONOUR:   Yes.  I am not suggesting there ought to be a change but so that we are all at one about it.

MR MAXWELL:   No, your Honour, no change.

HIS HONOUR:   Otherwise, there is nothing I wanted to raise about the terms of the order.  Is there anything to which counsel want to refer to my attention?

MR MAXWELL:   Your Honour, only this:  we have been giving some thought to defining within the categories that your Honour has defined, which, with respect, exhaust the categories, the integers, as we have called them, of the section.  It appears likely that each party will, in providing its index, as your Honour is about to order, group the evidence references under some subheadings as our learned friend earlier suggested.  For our part, we think it is desirable that those subheadings be common.  In seems, at present, unlikely that they will be.

If I can just give your Honour one example.  We have referred in our outline to the ability to act independently of competitors and the ability to act independently of customers.  We have in mind that there will be a subheading “Market Behaviour – Competitors” “Market Behaviour –Customers”, two subheadings along those lines, so that our evidence references will, as far as possible, tie up, if not correspond entirely with the

subheadings in the outline, and we assume our learned friends will do likewise in accordance with the structure of their outline.

HIS HONOUR:   Yes.  At the end the parties should be guided by only one consideration:  making it a useable workable document, and to do that, undoubtedly, less will be best.  I know it is a big case and I know there was a big record below.  So, we cannot get it down to one sheet of A4 paper yet.

That said, there will be orders in terms of the minutes which I will initial and ‑ ‑ ‑

MR SHAVIN:   Could I perhaps just raise one issue, your Honour?

HIS HONOUR:   Yes, Mr Shavin.

MR SHAVIN:   It is not at all controversial, and that is I do not know that the exhibits referred expressly to Schedule A in the statement of claim, which is the Boral costs.  Boral, clearly, wants those kept confidential, and that will have to be an exhibit to the order as well.

HIS HONOUR:   The order will take this form:  I will want the parties to submit a form of order to the Registrar that is complete ‑ ‑ ‑

MR MAXWELL:   With the schedules.

HIS HONOUR:   Yes, complete with schedules and is initialled by someone on behalf of both sides. 

MR MAXWELL:   Yes, your Honour, that will be done.

HIS HONOUR:   So that we do not end up with – if there is a difficulty, of course you will come back and no doubt talk to me, but subject to that, if we can deal with it in that way.  But otherwise there will be orders in the terms of the minutes which I will initial and which will remain on the file.

MR MAXWELL:   If your Honour please.

HIS HONOUR:   Thank you.  I will adjourn.

AT 2.24 PM THE MATTER WAS CONCLUDED