CLT v Connon & Ors, Sullivan v Moody

[2001] HCATrans 163

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A32 of 2000

B e t w e e n -

CLT

Applicant

and

AILEEN FORSYTH CONNON

First Respondent

MARGARET CATHERINE MOODY

Second Respondent

QUEEN ELIZABETH HOSPITAL

Third Respondent

STATE OF SOUTH AUSTRALIA

Fourth Respondent

Office of the Registry
  Adelaide  No A42 of 2000

B e t w e e n -

THOMAS PATRICK SULLIVAN

Applicant

and

MARGARET CATHERINE MOODY, LINDA LLOYD, KAREN RACHEL JAMES, QUEEN ELIZABETH HOSPITAL, ADELAIDE CHILDRENS HOSPITAL

First Respondent

STATE OF SOUTH AUSTRALIA

Second Respondent

Applications for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 1 JUNE 2001, AT 11.35 AM

Copyright in the High Court of Australia

MR C.J. KOURAKIS, QC:   If the Court pleases, I appear with MS E.M. BOXALL, for the applicant, Thompson.  (instructed by Norman Waterhouse), and with MS M.J. MINNEY for the applicant, Sullivan (instructed by Margaret J. Minney).

MR A.J. BESANKO, QC:   If the Court pleases, I appear with MR D.C.LOVELL, for all the respondents in both matters, other than the State of South Australia. (instructed by Joanne Tracey for No A32 of 2000) and (instructed by Fisher Jeffries for No A42 of 2000)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia:If the Court pleases, I appear with MR M.W. MILLS, for the State of South Australia in both matters. (instructed by the Crown Solicitor for South Australia)

KIRBY J:   Is it convenient to you, you appearing in both cases for the applicant, for the Court to deal with both of these matters consecutively and together in a sense?

MR KOURAKIS:   Yes, it is.

KIRBY J:   And do you know is that convenient to the respondents?  Do any of them wish to suggest that it ought not to be dealt with in that way?

MR KOURAKIS:   It is convenient to all counsel.

KIRBY J:   Yes, very well.  We think we would be helped by hearing from the respondents first.

MR KOURAKIS:   If the Court pleases.

KIRBY J:   Mr Besanko.  Mr Besanko, the reason we have called you on first is that we are concerned that the approach which the court took was the correct approach to, in effect, a pleading question, whether or not the correct principles were applied to, as it were, terminate the proceedings at the very outset given that, in England, a similar problem ultimately wound its way to the House of Lords and it did not seem to be something which was appropriate for such peremptory termination, consistent with the principles in General Steel.  So that is the matter we would like to have your assistance on.

MR BESANKO:   Thank you, your Honour.  Your Honours, the background to this matter is that there was a previous decision of the Full Court of the Supreme Court of South Australia ‑ ‑ ‑

KIRBY J:   Yes, we are aware of that.  We know of that case.  That is Hillman?

MR BESANKO:   Yes, your Honour.

KIRBY J:   Yes.

MR BESANKO:   And your Honours will have seen from the Solicitor’s submissions that there was an application for special leave to appeal in that case.  That was refused and the court referred to the fact that, not only had there been a finding of no duty of care, but also findings concerning causation and, I think, breach.  Your Honours, when these two matters came before the Master, there was, in effect, a concession in both matters that the matter was covered, if I can put it that way, by the principles in Hillman v Black, and no argument was offered in relation to either matter.

Your Honours might have seen from a book filed by the Solicitor some transcript in relation to the argument before the Master.  Also, your Honours, in that transcript it was put by the applicant, or the plaintiff, that it was convenient to deal with the matter in this way.  In fact it was said during the course of submissions – if I might just refer to one comment made during the course of the submissions – that there was benefit in having the general principle, does the duty of care arise as outlined in the pleadings in this matter, reconsidered prior to going through a trial, taking a month to get the same answer.

HAYNE J:   But there is the point.  It may have been in the view of counsel then appearing convenient to have some abstract question determined, but questions of duty - leave aside the separate questions that may be raised by the nature of the damage that is alleged in these cases - are better resolved when there are some real hard facts, not when there is a pleading which is not, if I may say so, a masterly example of the pleader’s art.

MR BESANKO:   Well, your Honour, we do not, with respect, seek to argue against that proposition as a general proposition.  We would point out, your Honours, that I think in both matters the plaintiff had the opportunity to amend its pleadings and took that opportunity in both matters and, in a sense, there was an effort by the plaintiff to get its pleadings in order for the purpose of this matter being determined in the Full Court and, if necessary, subsequently in this Court.  So there was a full opportunity to the plaintiff to put its pleadings in order.  It wanted the point, we say, dealt with in this way, it was convenient to the plaintiff and convenient for the defendant, and, in those circumstances ‑ ‑ ‑

HAYNE J:   Well, was the issue that confronted the Full Court the General Steel issue, namely, is it unarguably bad?

MR BESANKO:   It was, your Honour, and the court reached the conclusion that it was, on the pleadings that had been presented to it, and, your Honours, it was noted by the court in both matters, in fact, that there was a lack of precision in the pleadings, but, in a sense, that ought not to be held against the respondents, because the applicant had the opportunity to make amendments to the pleadings.  It knew that it was going to be dealt with in this way.  It made amendments.  It asked for the matter to proceed in this way.  So, in our respectful submission, the approach of the Full Court in dealing with the matter in this way was correct.

HAYNE J:   Whose application was it to terminate the action summarily?

MR BESANKO:   It was an application by the respondents, yes.  Your Honours, in our submission, the Full Court was correct in reaching the decision that it did and may we just put these propositions to the Court.  If the Court was to grant special leave to deal with this matter, the question that would be the subject of consideration would be a very narrow question, in our submission.  The applicant seeks to define the question in quite broad terms, but, in fact, it would be a narrow question.  We refer your Honours to various matters referred to in the Full Court, and might I just take your Honours to the judgment, first of Chief Justice Doyle, in the matter of ‑ ‑ ‑

KIRBY J:   You are dealing with CLT?

MR BESANKO:   CLT, your Honour?

KIRBY J:   Yes.  What page?

MR BESANKO:   Page 17 of the application book and his Honour in paragraph 64 reaches a conclusion about the nature of the relationship involved in this case.  I will not read it, your Honours, but Justice Gray, if the Court would note, reached a similar conclusion in his reasons in paragraph 123, which is at page 29.  Now, Justice Gray went a little further and said that there was really only a contract between the medical practitioners and the department and I do not think Chief Justice Doyle said that that was so.  But, your Honours, our point is that ‑ ‑ ‑

HAYNE J:   But see the other point that arises, Mr Besanko, is that identified by the Chief Justice at page 17, paragraph 62.  There is a possible point of view that what the doctor did either was informed by or commanded by the provision of the statute, and the question of the intersection of the statute and a common law duty is a question that emerges, if at all, when we see what a defence says and we see what the defence is.  The notion that these things can be dealt with in abstract on the pleadings is one that presents itself a question of general application to the way in which the Supreme Courts should be going about dealing with cases of this difficulty and sensitivity.

MR BESANKO:   Yes.  Well, your Honour, we accept that and I would be repeating myself to go back over the previous matters, but we do emphasise that, in effect, this is how the parties chose to have the matter dealt with and the court was asked to deal with it and did deal with it on that basis.

Your Honours, the other point we make is that there was a potential for conflict between duties and we refer your Honours to paragraph 68 of Chief Justice Doyle’s reasons at page 18 and paragraph 121 of Justice Gray’s reasons at page 29.  Now, your Honour, the point we are making is that, if the Court was to grant special leave, the question would be quite a narrow one.  If we may then move to the second proposition that we put ‑ ‑ ‑

HAYNE J:   Well, the narrowness you identify being, whether General Steel was met?

MR BESANKO:   Yes.

HAYNE J:   So the narrow question for this Court would be whether this case was unarguable and doomed to fail?

MR BESANKO:   Yes.

HAYNE J:   Now there are two aspects to that, Mr Besanko, to which attention ought to be drawn:  first, this question of duty; second, though this seems not to have been the subject of debate below, one cannot help but notice when one actually sees the pleading, that the injury alleged is psychiatric injury, which itself may bring with it its own particular raft of problems and questions.

MR BESANKO:   Yes.  Your Honour, we accept that, but if the Full Court has identified all the relevant matters, that is, matters relevant to the question of duty and whether there is a duty, and we say that they have and your Honours see that in the reasons of Chief Justice Doyle in paragraphs 64 through to paragraph 69 - and I will not go through those, the Court has had the opportunity to look at those - and Justice Gray in paragraphs 123 through to 125.  If all relevant matters have been considered, then it is appropriate for the court to go on and say, “Well, in these circumstances, is it unarguable that there is a duty of care?”, and the court decided that it was.  They are all matters, your Honours, that have been identified in cases in England, in cases in New Zealand, as your Honours will have seen from the book of authorities, and in the end the court had to access those matters and make a decision and we submit the decision of the Full Court was correct.  We accept ‑ ‑ ‑

KIRBY J:   Bedfordshire, I have just noticed, was itself a pleading case.  It was an application to strike out.  What was the New Zealand case you are referring to?

MR BESANKO:   That case, your Honour, was a case of – sorry, your Honour, it is referred to in the Solicitor’s book of authorities, volume 1, it is the second case in that.  That was also a strike-out application.

HAYNE J:   Is that B v Attorney-General (1999) 2 NZ 296?

MR BESANKO:   Yes, it is, your Honour, and that was a strike-out application where the Court of Appeal in New Zealand in that case upheld the decision to strike out the statement of claim.  There are other instances where the Court of Appeal in England has struck out a statement of claim.  We say, your Honours ‑ ‑ ‑

KIRBY J:   I can understand doing this, terminating this, on the basis of a statutory immunity, but given the way in which the duty of care issue and the standard of care issue tends to emerge out of the detail of the evidence, it may be that we in Australia have had a more rigorous approach since General Steel to this issue of what you do when there is an objection at the threshold.

MR BESANKO:   Yes.

KIRBY J:   It just seems difficult to say in a negligence case, given what we know about the way duty of care cases emerge from the facts, that you can strike it out without getting to a greater level of detail than you do on a pleading, especially this pleading.

HAYNE J:   Especially as that is so where a question of intersection with statute would arise if the statute were relied on by way of defence.

MR BESANKO:   That is so, your Honour, if one gets to the point where it is necessary to rely on the statute.  The point we put to the Court though is that the matters that were relied upon by the Full Court - and those matters appear in the reasons of Chief Justice Doyle - are all matters that can be determined without a detailed examination of the facts.  So, your Honours, if one goes, for example, to paragraph 66 on page 18, your Honours will see that that the Chief Justice identifies a matter in favour of a duty of care, in a sense, but that is a matter, your Honour, that can be determined without any examination of the facts.  If your Honours then go down to paragraph 68, last sentence, his Honour reaches a conclusion about whether the plaintiff was:

a person whose interests –

the defendants –

could be expected or required by law to consider.

That is a matter that can be determined without information as to the facts.  Your Honours go into the next paragraph, second sentence, his Honour refers to reliance; that is a matter that can be determined without any facts other than the facts that are referred to in the pleadings and, if your Honours go to the very bottom of that page, the last sentence commencing on that page, again is a matter that can be determined without a detailed examination of the facts.

KIRBY J:   This does postulate quite a large realm of immunity to the doctors and the social workers.  I can understand that immunity being founded in statute and, indeed, there may well be an argument in this case that it is founded in statute, but to found it in self-evident propositions of the common law just strikes me as different from the way we in Australia have approached strike-out applications.  That itself may be an important question.  I mean, as you point out in New Zealand and in England they have dealt with it on that basis, and maybe my postulated approach is incorrect or needs to be revised, but it does seem to be a more generous approach to strike-outs than I have contemplated.

MR BESANKO:   Yes, your Honour.  In a sense, it is a wider immunity, although, your Honour, the Chief Justice, for example, left open the question of whether a duty was owed to the child, so we are dealing with a reasonably specific situation.  But, your Honours, our point is ‑ ‑ ‑

HAYNE J:   But again, you see, the question when the duty posited is duty to the parent, the duty concerned is one relating to avoidance of psychiatric injury.  Now, does that inject new issues?  I do not know, but the question of injection of new issues may perhaps be better determined against a cold‑hard‑proved factual basis than a pleading.

MR BESANKO:   Well again, your Honours, as a general proposition we would not disagree, but could I conclude my submissions by making this submission.  If your Honours look at paragraphs 124 through to 126 of Justice Gray’s reasons - that is at pages 30 and 31 - his Honour there refers to a number of policy considerations, both in his own words and by reference to what was said in Hillman v Black.  Our submission to the Court

is that all of those matters can be determined on the pleadings; they can be determined without a detailed examination of the facts. 

If the court was wrong, well, of course, that is a different matter; the court might give leave if it thought that the Full Court was wrong.  But on the initial point as to whether it was appropriate to strike out, if the sort of considerations that motivated the court are all things that one can say, you do not need to go into evidence, they are, what might be said broadly, policy issues, then it is appropriate for the court to proceed in the way in which it did, particularly when it was the wish of the parties that the matter proceed in that way.  If the Court pleases.

KIRBY J:   Yes, thank you, Mr Besanko.  Mr Solicitor, do you wish to ‑ ‑ ‑

MR SELWAY:   Yes, if I could add something, your Honour, because I think we would depart from my learned friend in his concession that the issue before the Full Court strictly was the question of whether this was an appropriate matter for strike out.  We say that that was not the issue before the court; it had, in fact, been conceded.  If I could take your Honours to page 7 of the application book in CLT, Chief Justice Doyle, at about line 20:

The plaintiff concedes that the decision of this Court in Hillman cannot be distinguished.

That was the concession that was made.  Whether it was a proper concession or not is another matter, but it was the concession that was made.  That concession having been made, the issue that then arose was solely whether Hillman v Black was properly decided and that was what was argued and that, with respect, is the issue that is raised in this special leave application, both by the submissions, and if leave was granted in terms in which it is sought, the issue that would be then addressed by the Court – I refer your Honours to page 50 of the application book – is:

That the Full Court erred in deciding there was no duty of care owed to the Appellant by the Defendants.

KIRBY J:   That would have to be limited to on the pleadings.  In the light of the question which we have been addressing to Mr Besanko, it would have to be whether the Full Court erred in the approach which it took to the matter before it by deciding.

MR SELWAY:   Yes.

HAYNE J:   But can I understand then, Mr Solicitor, what you are saying?  Are you saying that, by explicit or implicit agreement of the parties, a point of law was segregated in this proceeding and determined?

MR SELWAY:   Yes, that is what we are saying happened.  The difficulty with it which we address in our written submissions is that Hillman v Black dealt with more than a question of law and so one has to decide what it was that was agreed.  It is unclear from the decision, it is unclear from the reasoning and it is unclear from the concession.  But the reality is, and we make the concession, that the only issue was the point of law; that the factual issues in Hillman v Black presumably were not conceded, and the point of law is the point of law that was considered by the Full Court, considered by the Master, and we say it is the only point that has been brought here.

HAYNE J:   What is that point of law?

MR SELWAY:   Strictly, is Hillman v Black correctly decided.

HAYNE J:   That does not seem a terribly precise point of law dispositive of anything, does it?

MR SELWAY:   No, and it leads into the debate, your Honours can see in the written submissions, as to what that point of law is.  We say that the point of law is whether, does a child welfare authority in investigating an allegation that a parent has abused his or her child owe a duty of care to that parent to perform the investigation competently, so that the parent does not suffer any psychiatric of other injury where such injury is the consequence of the allegation of abuse.  That issue is within Hillman.

The appellant posits the question of whether a duty of care is owed to a parent, which we say misses the point.  As to the question of whether that question can be resolved, if you like, in the abstract, there are obviously difficulties in doing it but we point to the fact that it has been done by the House of Lords in X v Bedfordshire Council.  It has been done by the New Zealand Court of Appeal in B.

KIRBY J:   But you know, Mr Solicitor, that so many attempts are made to formulate the test to apply, and not always with pristine clarity, and I plead guilty myself in this respect, but essentially, there must be some truth in what a lot of the writers have said, including a lot of very great judges that, in a sense, we are trying to find a formulae for something that emerges essentially from the facts.  This is the difficulty that I see to say, and as a bald legal statement, that whatever the circumstances, and whatever the facts in the particular case, whatever the conversations, whatever the trust, whatever the relationship, there is no duty of care.  Now, that is a very large immunity.  Based on statute, no problem, but based on the common law and on a pleading it seems a very large proposition.

MR SELWAY:   Yes.  Well, can I make two points about that, your Honour?  First, we would dispute the analysis of this as an immunity.  We say the question is not an immunity, it is a duty of care question, and the two are distinct though they often look the same.

KIRBY J:   The net result of a strike-out no duty of care is to confer, apart from statute, a common law immunity.  That is the consequence.

MR SELWAY:   It is a process an reasoning that in the circumstances as revealed by the pleading and by the concession, that is to say this case is not distinguishable from Hillman.  In that circumstance, there is no duty of care.  Now, one can talk colloquially about that being an immunity but that is not the analysis any more than to say that a person has an immunity about being sued by the shopkeeper across the road because there is no duty of care in determining what prices you charge for your goods even if that will cause a loss to the shopkeeper across the road.  It is not an immunity, it is simply a lack of the duty of care.

Similarly, here, we would say, the issue is, is there a duty of care owed by a person investigating an allegation of child abuse to the person who is the alleged perpetrator?  Now, if that is the question, we say it is capable of answer as an abstract legal question.  It is certainly true that different facts may lead to different results and that if different facts had been pleaded, or if different facts had been argued - if, for example, it had been argued that Hillman v Black was distinguishable, then it is absolutely clear that the Full Court could not have proceeded this way.  But that was not the basis of the argument.  The basis of the argument was that this case was indistinguishable and if that is the basis, then the argument is a simple legal question:  is Hillman v Black properly decided on its facts? 

What we say, your Honours, is, given that, this is not an appropriate case for this Court to be involved.  The Court cannot deal with the factual issues in any sensible way because one is constrained by the way the case has proceeded and the concessions have been made and the issue about whether this thing should have been considered simply as a strike-out point, we say cannot sensibly be resolved given the concessions that have been made.

Your Honours, I do not know that I can take the matter very much further.  We could put submissions if your 

Honours wished on the question of whether the law as applied was correct, but as I understand it, your Honours’ concern is a question before one gets to that.

KIRBY J:   Yes, it is the step before that that is of concern to the Court.

MR SELWAY:   I think I have said all I can say about that.

KIRBY J:   Yes, thank you, very much, Mr Solicitor.  Now, just a moment, Mr Kourakis.

HAYNE J:   Mr Kourakis, there are two points I want to raise with you.  First, can you go to your draft notice of appeal at ‑ ‑ ‑

MR KOURAKIS:   Is that in the Connon matter or the Sullivan matter, your Honour?

HAYNE J:   CLT.

MR KOURAKIS:   CLT, yes.

HAYNE J:   What page is it?

KIRBY J:   Page 50.

MR KOURAKIS:   Page 34.

HAYNE J:   The ground asserted there is the absolute ground ‑ ‑ ‑

MR KOURAKIS:   Yes, your Honour.

HAYNE J:   If leave were to go, it would seem to me that a point, perhaps the point, is whether the court “erred in holding that it was not arguable that” - something.  That is one issue.

MR KOURAKIS:   Yes.  I have some scribble on my page that is something to that effect, if the Court pleases.

HAYNE J:   Second thing to which attention would have to be given at some point, is there some order of this Court that entitles the applicant to be known only by his initials?

MR KOURAKIS:   No.

HAYNE J:   Well, absent such an order of this Court, at least at first blush, it seems to me that he may not issue process save in his own name.

MR KOURAKIS:   If the Court pleases.

HAYNE J:   That is a separate issue.

KIRBY J:   Now, first of all, in relation to the first issue, do you apply to amend the ground to read, “The Full Court erred in holding that it was not arguable that the respondents”?

MR KOURAKIS:   The statement of claim did not disclose a cause of action, yes.

KIRBY J:   Just tell me exactly what the words you ask leave to insert?

MR KOURAKIS:   To leave the words “The Full Court erred in holding” -“that it was not arguable that the statement of claim disclosed a cause of action against the respondents”.  Perhaps “any cause of action against the respondents”.

KIRBY J:   What do you say in relation to, on the question of whether that leave should be granted, the contention that you, in a sense, invited the court to approach the matter on this basis?

MR KOURAKIS:   Your Honours, it is the case that the applicants did not advance arguments that the question of strike-out should not be entertained on the General Steel basis.  That is so.  But, your Honours, in my submission, the procedural question and the substantial question are interrelated in that the way that both X and Hillman were decided was, in fact, to give a blanket immunity and, in our submission, it was precisely that with respect to any actions by persons in this sphere, that is, investigating questions of child abuse.

Indeed, it is precisely because it was so stated in X by the House of Lords that that wall of immunity in subsequent years has started to crack.  Very importantly, because of decisions of the European Court of Justice in Osman, for example, which made the point that entertaining the strike-out on the basis of the general immunity set out in X was to deny access and the courts in England have subsequently modified their approach precisely because of that.  So there is an interrelationship between the two questions.

HAYNE J:   Can I just raise one other matter with you, Mr Kourakis?  It does not seem to me to be beyond the bounds of argument that the proper order that the Full Court should have made in this case was “pleading struck out, liberty to replead, plaintiff to pay all costs”.  Now, I do not ask you to comment upon that now but, no doubt, the further conduct of the matter may be informed by the possibility that, on one view of the matter, that

would be the appropriate disposition.  But, as I say, that is perhaps a matter for another day.

KIRBY J:   Justice Hayne has raised three points that have to be considered in your camp and perhaps the other camp.  The first is the name of your client, and I think that would have to be dealt with by a motion to the Court if you wish to be relieved from what would be the normal expectation that he would be named by his name.  But that is a matter for you if special leave is granted.  The second is whether you should have the leave to amend the ground as you have stated, foreshadowing the way in which you would be putting it.  On that we will have to hear the respondents.

The third is the point that was raised, and it may not come up at this stage of the matter, and that is the way in which you have pleaded the psychiatric injury because that has been pleaded as if there is no problem of law in that area and this Court has recently granted special leave in a case involving the scope of psychiatric nervous shock injury, so that has been called to notice and I do not know whether it leads to a notice of contention in this case, or not.  Possibly it does not, given that the issue is really at the pleading stage.

So perhaps I should ask Mr Besanko and Mr Solicitor whether they object to the Court granting leave to amend the ground of appeal as sought.  Can you point to any prejudice doing that, apart from the point that you have already made that the course that was adopted was one to which the plaintiffs consented and, indeed, asked the Court to approach the matter?  Is there anything else?

MR BESANKO:   No, we cannot, your Honour.  No, your Honour.

KIRBY J:   Thank you.  Mr Solicitor?

MR SELWAY:   Nor we, your Honour.  We consent to the amendment.

KIRBY J:   Thank you very much.

The Court grants leave to the applicant to amend draft grounds of appeal to insert after the words “that” there appearing, “it was not arguable that the statement of claim disclosed a cause of action against the respondents”, and upon that basis the Court grants special leave to the applicant.  How long do you estimate the matter would take, Mr Kourakis.

MR KOURAKIS:   A day, if the Court pleases.

KIRBY J:   Do you agree with that estimate, Mr Besanko?

MR BESANKO:   Yes, we do, your Honour.

KIRBY J:   Do you agree, Mr Solicitor?

MR SELWAY:   Yes, I think so, your Honour.

KIRBY J:   Is there anything separate and additional or different to be said in the matter of Sullivan or should these matters ride together?  Is the same issue raised in respect of the notice of appeal.

MR KOURAKIS:   Yes.

KIRBY J:   Do you seek to amend the notice of appeal in Sullivan?  Where do we find that?  It is page 24, I think.

MR KOURAKIS:   Page 25 is the ground, if the Court pleases.

KIRBY J:   Well, that seems to be in the form of the amended version, does it not:

erred in deciding that the Statement of Claim filed in the Supreme Court . . . did not disclose a cause of action - - -

MR KOURAKIS:   Perhaps if I add the words “erred in deciding that it was not arguable that”, so after the word “deciding”.

KIRBY J:   Yes, well, do you ask for leave to amend that ground in those terms?

MR KOURAKIS:   I do, if the Court pleases, yes.

KIRBY J:   Now, you have a second ground there, that is to say, “The Full Court erred in deciding that there was no duty of care”.  That is the substantive question.  The matter that interests the Court is the question of approach.  It is true that the two are interrelated but you would not be granted special leave, I think, on the substantive question but on the issue of the way in which it has been approached in the courts below.

MR KOURAKIS:   I understand that, if your Honour pleases, and that is one of the other matters that we will have to consider.

KIRBY J:   Is there anything separate or different to be said in respect of this application, Mr Besanko, or should they ride together?

MR BESANKO:   No, your Honour, we think they should.

KIRBY J:   Does that add to the time estimate, Mr Besanko?  Is it contemplated that we could deal with both matters in the one day?

MR BESANKO:   Yes, we think so, your Honour.

MR SELWAY:   Yes, we agree, your Honour.

KIRBY J:   In the matter of Sullivan, the Court grants leave to the applicant to amend ground 2 as stated on page 25 of the application book to read:

The Full Court erred in deciding that it was not arguable that the Statement of Claim -

et cetera, as there appearing.  Ground 3 – special leave is not granted on that ground 3 but special leave is granted on ground 2, as amended.

The matter will be listed in the forthcoming Adelaide list and the Court notes that the estimate is one day.

AT 12.13 PM THE MATTER WAS CONCLUDED