Commonwealth Bank of Australia v Quade

[1991] HCATrans 122

...

4

'I

• 1!'

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl7 of 1991

B e t w e e n -

COMMONWEALTH BANK OF AUSTRALIA

Applicant

and

THOMAS QUADE, MARY QUADE, SHAWN THOMAS QUADE and GERARD WILLIAM QUADE

Respondents

Application for special leave

to appeal

MASON CJ DAWSON J GAUDRON J

Quade 1 10/5/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 MAY 1991, AT 10.32 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, OC:  May it please the Court, I appear

with my learned friends, MR G. O'L REYNOLDS and

MR J.E. MARSHALL for the applicant. (instructed by

L.E. Taylor)

MR D.E. GRIEVE, QC:  May it please Your Honours, I appear

with MR J.K. CHIPPINDALL for the respondents.

(instructed by Ferrier & Associates)

MR BENNETT:  Your Honours, I hand up outline of submissions.

MASON CJ: Yes.

MR BENNETT:  Your Honours have the fresh affidavit which was

filed this week, 8 May?

MASON CJ: Yes.

MR BENNETT:  I also have a bundle of cases for Your Honours,

although I will only be touching very briefly upon

the cases in it.

MASON CJ:  Mr Bennett, it might be of assistance if you

directed your attention first to your paragraph f.

on page 5 of your submissions. The reason why I

suggest that is that on reading the judgments in
the Full Court of the Federal Court, it would seem

that Their Honours may have regarded this as a case

in which the trial had not been regularly

conducted, with the result that a different test

should be applied, that is a test different from

that stated in Orr v Holmes and the Wollongong

Corporation case.

MR BENNETT:  Your Honour, that certainly is what

Their Honours said. If Your Honours go to page 69

in the judgment of Mr Justice Burchett at line 10,

His Honour says precisely what Your Honour just put

to me, that:

It is only in the narrowest sense that a trial

can be said to have been regularly conducted

when a vital procedural step involved in the

preparation for it has been stultified by one

party's default.

Now, Your Honours, if one goes to Orr v Holmes,

which is the first case in the volume, the passage
is in the judgment of Mr Justice Dixon as he then
was at page 640. At point 7, the beginning of the

paragraph, His Honour says:

If a trial has been regularly conducted

and the party against whom the verdict has

passed cannot complain that evidence has been

wrongly received or rejected or that there has

been a misdirection or that he has not been·

Quade 10/5/91

fully heard or has been taken by surprise or
that the result is not warranted by the
evidence, the successful party is not to be
deprived of the verdict he has obtained except
to fulfill an imperative demand of justice.

The discovery of fresh evidence makes no such demand upon justice unless it is almost

certain that ..... an opposite result would have

been reached and unless no reasonable

diligence -

the familiar test. In the next case in this Court,

the Greater Wollongong case, His Honour set that

out again with, with respect, slightly greater

precision. In Wollongong Corporation v Cowan, the

next of the cases, at page 444 at point 5, the

beginning of the paragraph, the Chief Justice said:

If cases are put aside -

and this preamble serves the same purpose as the

preamble to the previous sentence -

where a trial has miscarried through

misdirection, misreception of evidence,

wrongful rejection of evidence or other error

and if cases of surprise, malpractice or fraud

are put on one side -

the first of those are normal cases of appeal, of

course, grounds of appeal; the second list,

surprise, malpractice and fraud are put in their

separate category, and then he refers to the same

rule. All the other Judges in that case, as

Your Honours would see from pages 447 to 448 agreed

with His Honour, so it was effectively the judgment

of the Court. In our respectful submission, there

is simply no room in that formulation, unless one

consciously adds it as a later gloss, to an

exception in relation to non-discovery of material,

particularly non-deliberate non-discovery or

accidental non-discovery of material.

DAWSON J: Is that not taking a very narrow view? What is

really meant there is where there has not been a

fair trial. The mere fact that failure to comply

with a notice of discovery is not mentioned falls

within the concept, does it not?

MR BENNETT:  Your Honour, we would respectfully submit not,

that the test is narrower than that.

DAWSON J:  Why should it be narrower?

MR BENNETT: Because of the conflict between the two

principles: the principle of fairness, to which

Your Honour refers, and the principle of finality

Quade 10/5/91

of litigation. In my respectful submission, the
reason for the strictness of the rules of this area

is the concern the courts have for the finality of

litigation.	One can see it particularly in
relation to the fraud rule.	One does not get a new
trial merely on the ground or perjury.	One has to

show that there is something more than perjury,
that there is a fraudulent case being presented.

That is the point in the next case in the book, the very last page of McDonald's case, McDonald v

McDonald, where Mr Justice Windeyer makes that

point that perjury is not enough.

So if, for example, after a successful motor

accident case for the plaintiff, the defendant

says I have got new evidence to prove that the

plaintiff lied when he said he was doing 30 miles

an hour, he was really doing 60, that is not good

enough. But if one showed, on the other hand, that

the plaintiff had presented a fraudulent case by

pretending he was a passenger when he was the

driver and having a whole series of matters of that

sort, so the case itself was a fraudulent case, one

can do it. Now, that distinction recognizes that

perjury itself is insufficient to justify the rule.

One must have something more.

We would respectfully submit that accidental

non-discovery of material is certainly not enough, particularly when one then says, as the Full Court

has said, the test to be applied is "may" it have

affected the result. It does not even say "would"

it have affected the result, a 50 per cent test.

It certainly does not take the Wollongong test

which we contend for, which is the "almost certain"

test, but it puts it completely the other way. It

says, if there is a possibility that it would have

affected the result, that is sufficient, even in a

case of accidental non-discovery.

Your Honours, that is the problem which has

arisen here. We have submitted on page 3 that

there are a number of possible tests the court

could adopt which are intermediate ones. Our

primary submission is the Orr v Holmes/Wollongong

Corporation test but there are three possible

intermediate tests. One is that one applies

Wollongong Corporation to accidental non-discovery

and the Full Court's test to deliberate non-

discovery. One is to ask whether the court

considers on balance that the result would have

been affected, and that is half-way between the two

tests; the third is that the test might involve a

discretionary balancing of the degree of

culpability of the party who failed to make full
discovery, the relevance of the mate+ial and the

extent of the possibility that the result would

Quade 4 10/5/91

have been different.	But even that is not done
here.	What is done here is simply to say it may

have affected the result.

It is a question of law which

Mr Justice Burchett described as an interesting and

difficult question and there is no authority on it.

MASON CJ:  As a matter of interest, in what other respect

has the Federal Court narrowed the test?

MR BENNETT:  It said that where there was a matter of public

interest in the result of the particular case, it

would take a different view.	They would not apply
the - - -

MASON CJ: That does not apply here.

MR BENNETT: It does not apply here - may take a different

view. The arguments against the Full Court approach

are set out in a. to h. on pages 4 to 6. It is

different to the approach taken by a differently
constituted Full Federal Court in David Securities.

It is the last case in the book and it is page 293,

just one sentence. I concede that this case is

different because this was a case of informal

discovery, rather than compliance with an order for

discovery. Some would say the obligations are the

same but no doubt, as a matter of formality, they

are not. At page 293 line 16 Their Honours said:

Although the trial judge did not have them, we

are not persuaded that these documents, of
themselves, or taken in conjunction with the

evidence before his Honour, establish that the

bank should be held liable -

so it puts an intermediate test.

Your Honours, the second matter which, in my

respectful submission, should not be underestimated

because it is a real problem in this type of case,

is the matter which is b. on page 4. Where one has

normal litigation against a large corporate or

governmental body it discovers basically its file

concerned with the transaction: perhaps accounting

records concerned with it; there may be some other

relevant documents when the parties think about the

issues; maybe some board minutes; but basically

that is the area of discovery; the documents

concerned with the case.

In the forex cases, one has had a particularly difficult problem because the banks have been

called upon to discover not merely their files in

relation to the customer, but a lot of internal

policy documents and discursive documents produced

Quade 5 10/5/91

in the early 1980s about the future of foreign

currency loans. Speeches made at functions by

senior bank officers, sometimes copies are kept,

sometimes they are not. Memoranda are sent,

sometimes copies are kept, sometimes they are not.

And what this Bank has done is discover a group of

documents called the G documents - G for general,

in its forex cases. This was all in evidence.

What has been happening, of course, from time

to time is that an employee retires and he has a

personal file and someone finds in that personal

file when he retires there is a speech he made at a

dinner that no one has kept a copy of or at a
bankers' function which says, we should, or should

not push forex loans or people should be told

something or should not be told something, and that

is a discoverable document.	And there were other
documents.	I do not say they were all in as narrow

a category as that, but there were documents which

turn up in out of the way places, officers are

moved from headquarters to branches and take

documents with them, and documents have inevitably

dribbled out from time to time and the practice has

been that whenever this happens, they are

immediately discovered in all the forex cases.

MASON CJ:  I can understand that, Mr Bennett, in relation to

particular documents. But one has the impression

here that the Bank failed to discover all the

documents that disclosed that it was engaging in

forex business in a promotional way.

MR BENNETT:  Your Honour, what is actually cited in the

judgments are documents showing the opposite. If

Your Honour goes to Mr Justice Burchett's judgment,

page 61, all the documents in the category

Your Honour describes are 1982 documents. By 1984

the documents were more of the type on page 61 at

the top of the page where it is said: F/C Loans and simulated loans should not

be aggressively marketed.

Their Honours chose to place greater emphasis on

the earlier documents, although Mr Justice Burchett

does refer to those. This was much closer to the

time of the actual loan.

The other matter which does not appear at all

which was argued extensively, was that

from the judgments, but which hopefully appeal, but

we said the G documents already discovered really

gave all the primary information about all the

relevant matters, these are just more material of

the same general nature. Now, nowhere in the

Quade 6 10/5/91

judgments do Their Honours compare the additional

material with the material already discovered and

that is a problem which we would face. But our

submission is that they have applied the wrong test

and once they have applied the wrong test, the

problem clearly arises.

The promotional documents in front of the

trial judge, I am reminded - there were documents

of that category - appear at page 23 and following

and there were some documents set out in that

category which were discovered. There were some

1986 guidelines there which talk about the

importance of customers understanding it, potential

borrowers being advised of various matters

and -

DAWSON J: 

You are not the right person to ask, Mr Bennett,

but how did the documents get in, on what precise
basis?

MR BENNETT: 

They were discovered and the respondent then

culls from the discovered documents - - -

DAWSON J:  I know that, but as a matter of evidence.

MR BENNETT:  They were just tendered, Your Honour, without objection, as I understand it. The Bank did not

put the - yes, I am told they were tendered without

objection, Your Honour.

DAWSON J:  You do not contest their relevance?

MR BENNETT: Well, Your Honour, at the trial we did not

contest their relevance and they went in and they

were used and we won the case on issues almost

exclusively concerned with the borrower. The

primary issue which we won the case on was that His Honour held that the disclosure made to the

borrower was sufficient to explain the matter to

him fully - page 35, for example, His Honour

describes the document he was given and says that

it must have given him "a real and sufficient

appreciation of the risk" and so on.

DAWSON J:	I mean really what is relevant is what was told to the particular borrower, I suppose, and you
would have to show in any event that the
instruction came to the attention of the person who
dealt with the borrower, but none of that was gone
into.
MR BENNETT:	No. Well, some of it was in relation to the

documents available at the trial. What is said is

that one could have cross-examined the Bank manager

and said, here is a document from the Bank in 1982

saying loans should be promoted - - -

Quade 7 10/5/91

DAWSON J: That is what I had in mind. If the documents

were only available for cross-examination, the

question is were they discoverable.	But that
apparently does not arise.

MR BENNETT:  It is really too late for us to raise that,

Your Honour. One would doubt that a lot of them

are discoverable, but a straightforward approach

has been taken. But, Your Honours, the point we

make is that this is a case of accidental non-

discovery in a case where it is really inevitable -

I mean in the Fisher case which is referred to

here, which is before the Full Court, the Quade

argument has been raised, more documents emerged a

few days before that hearing and Your Honours can

imagine the impact which that is said to have, and

our submission is that the documents really make no

difference. The Full Court has adjourned that

pending this special leave application to see what

happens in relation to it.

Your Honours, the factors set out on page 5 I

will not go through in great detail but it is, we

would submit, an unduly strict test to the

relevant degree of probability, bearing in mind the

public interest and finality of litigation. It

does unduly penalize a party who is honest enough

to give voluntary discovery after judgment. We do point out that in relation to Mr Justice Einfeld's

judgment His Honour at page 84 says this, at the

very bottom of the page, line 24:

Neither party seemed to suggest that the

former onerous test of a virtual certainty of

a different result was applicable here: see

for example Orr v Holmes (1948) 76 CLR 632 at

640-2; Wollongong Corporation v Cowan (1955)

93 CLR 435 at 444.

What we have pointed out in the affidavit is

not only that the submission was made, but that the	first five or six pages of some written submissions
annexed make that submission in considerable
detail.

MASON CJ:  It would be very surprising if the submission was

not made, having regard to authority in this Court.

MR BENNETT: Yes, that is so, Your Honour. So His Honour

did not really lay down a test. There are three

passages in Justice Burchett's judgment which lay

down - that is page 53 line 7, 64 line 9 and 69

line 26. Your Honours need not go to them but in

each of them the test is that it may have affected

the result, in slightly different words. I remind

Your Honours also that Justice Neaves. agreed with

Justice Burchett, only with considerable

Quade 8 10/5/91

hesitation, in a short judgment in which he

expressed that concern.

The issue is important for the reasons given

on the final page of the submissions. It will

necessarily arise in all or many of the forex cases in which the Commonwealth Bank has been successful.

It has not yet been ultimately unsuccessful in any

of this litigation.

The point has already been raised in one such

case which is where the Bank succeeded at trial and

the Full Court has adjourned the appeal to wait the

result of this and it may well arise in relation to

forex litigation against other banks.	Of course,
one does not know.	And indeed, other major

commercial transactions. If Your Honours please.

MASON CJ: Thank you, Mr Bennett. Yes, Mr Grieve.

MR GRIEVE:  To begin with, in our submission, the extract

from the joint judgment of Chief Justice Dixon and

Justices Fullagar, Kitto and Taylor in Mccann v

Parsons, which appears at page 70 of the leave

book, demonstrates that cases such as Orr v Holmes

and the Wollongong Corporation case do not lay down

any absolute and rigid rule. In the language of

Their Honours:

The grounds upon which the court proceeds in

granting the remedy -

that is of a new trial -

have been settled by practice, but they have

never become completely stereotyped;

At all events, in our submission,

Mr Justice Burchett was right in finding that the

introductory condition to the passage of

Mr Justice Dixon in Orr v Holmes cannot have been

regarded as satisfied in this instance, that

condition being the regular conduct of the trial.
We accept, with respect, that the notion of a trial
contemplates a hearing but it carries with it all

of the interlocutory steps that proceed that

hearing. One of those steps in this particular

instance was an order for discovery. It matters
not, in our submission, whether that order was made

consensually or otherwise; the fact is that it was

made.

Now, there are umpteen statements, if we may

put it that way, to the effect that the court will
exercise its discretion to make an order for
discovery if the nature and circumstances of the

case are such that it is necessary for such an

Quade 9 10/5/91

order to be made in order that there be a fair

trial. If we may hand up a number of copies of a

judgment of Mr Justice Cross in which His Honour

sets out and summarizes those authorities. It is

reported, Your Honours, in (1979) 1 NSWLR 192 -

DAWSON J:  Mr Grieve, how do you say the documents were

relevant, other than as a basis for cross-

examination?

MR GRIEVE:  They were relevant in that they went to the

extent of the Bank's knowledge of the risk. May we

just approach that question in a slightly more

elaborate way? The trial judge has found, at

page 37 of the leave book, that the Bank did owe a

duty to the Quades. His Honour Mr Justice Merling,

however, concluded that the Bank had discharged

that duty in the light of the events as established

at the trial.

DAWSON J:  By what was told to the Quades?

MR GRIEVE:  Yes. Now, by way of illustration - and may we

respectfully say exemplification - of the basis

upon which His Honour concluded that the duty had

been discharged, reliance was placed, both by the

Bank and by the primary judge, on the contents of a

letter reproduced at pages 22 and 23. At page 22

the letter entitled ''Exchange Risk" proceeds at

line 13 or 14:

On the understanding that the exchange risks associated with borrowings in foreign currencies are.fully recognised -

we interpolate, by you -

and that any adverse exchange rate movements

are for the borrower's account, the Bank is prepared to allow the loan to proceed on an

unhedged basis.

Several paragraphs on, line 32, I think it is:

As you are aware exchange risks may be

eliminated at any time during the life of the

loan by entering into a hedge contract and the

Bank would be happy to provide information in

this regard on request.

Now, that letter exemplifies the factual basis for the primary judge's conclusion that the Bank had

discharged its duty of care to the Quades. The

documents, in our submission, go directly to that

question in the sense that the finding that the proposition that the Bank told the Quades all they

Quade 10 10/5/91

needed to know, being all the Bank knew, about the

risks et cetera. The documents appear to establish

that the Bank in fact knew a lot more than what it

passed on to the Quades.

Now, once one starts with the premise, as

found by the primary judge, that the Bank had the

duty, it is our submission that the Bank could only

have discharged that duty by telling the Quades all

they needed to know, being all that it knew - - -

DAWSON J: 

I do not understand stand that, but it may not

matter. It seems to me that what duty the Bank
had, whatever they knew, was to adequately warn the

Quades of the risks - - -

MR GRIEVE: Indeed, we respectfully embrace that.

DAWSON J:  - - - and the fact that there were internal memos

flying around saying that the thing should be

aggressively marketed or not aggressively marketed

does not seem to me to matter.

MR GRIEVE:  That may well be by the by -

DAWSON J: Except as cross-examination to the particular

witness, the man who had contact with the Quades,

as to whether he did not really gild the lily or

whatever it might be. Cross-examination is one

thing; relevance as evidence is another.

MR GRIEVE: With respect, we accept that, but where the

documents, as they appear to do, also demonstrate

that the Bank knew a lot more about the extent of

the risk than was apparent at the trial - - -

GAUDRON J:  Does that really mean you wish to put a

different case by reference to these documents?

You wish to give a different content to the duty of

care.

MR GRIEVE:  No, we do not, with respect. What we - - -

GAUDRON J: Can I say this:  to say that the Bank should

have told it all it knew really seems to me to say

very little at all. I mean, if the Bank knew

nothing but should have known something, that is
not a duty of care which you would assert. That

just seems to be a duty of care the content of

which is filled in by reference to one criterion

but might just as easily be filled in by reference

to something else.

MR GRIEVE:  May we endeavour to approach it this way. We do

not intend to advance a different case at the

retrial at all but we wish to put the case into

this context: the way in which the case was run at

Quade 11 10/5/91

first instance in substance was that, look, the
science, if one could even call it a science, was

at the relevant time a most undeveloped science.

No one knew, no one could predict the outcome of

currency fluctuations any more than the outcome of
the forth corning race meeting at Randwick. That

was the stance that the Bank took, "and we, the

Bank, knew no more than anyone else". The

documents, however, it will be our case, expose

that not to be so and that the Bank, indeed, knew a

lot more about this so-called undefinable risk than

it let on.

Now, our case is and always has been that the

Bank had a duty of care to tell the Quades, as its

customers, what the extent of the risk was as known

to it by reason of its appreciation of the dynamics

within this particular market.

DAWSON J:  I can see that. You say that the duty of care is

dependent, to some extent, upon the current state

of knowledge in the industry and that these

documents go to the current state of knowledge.

MR GRIEVE:  Indeed, yes. But at all events, our friends

concede the documents are relevant and are

discoverable as such.

MASON CJ: But, Mr Grieve, you seem to be suggesting that

the documents reveal that there were risks beyond

the risks that were the subject of examination in

the trial. Now, I do not understand

Mr Justice Burchett at pages 52 and 53, in his description of the non-discovered documents, to be

suggesting that.

MR GRIEVE:  No, I do not wish to be putting anything that

cannot fairly be put on the strength of the

documents and we respectfully accept that

Mr Justice Burchett's summary of their content is

accurate and sufficient for present purposes.

However, the documents do tend, and so it will be

our case - whether the submission prevails or not

is another matter - but it will be our case that
the documents do tend to demonstrate an

appreciation by the Bank of the factors that bore

on the risk, a greater knowledge of the dynamics

that bore on the risk - - -

MASON CJ: Yes, more emphasis and, as it were, magnitude of

risk, rather than difference in risk.

MR GRIEVE: Quite. But one starts from the premise that the

Quades knew nought. They obtained no independent

advice from anyone else other than the Bank. At

the end of the day, the trial judge found that the

Bank had sufficiently acquainted them with the

Quade 12 10/5/91

nature and extent of the risk to have discharged

the duty. The question then is whether they were

told enough, having regard to the Bank's state of

knowledge. The documents, in our submission,

demonstrate that the Bank knew more than they were

told and that what the Bank knew was relevant to

the issue of whether or not they should have

embraced the risk. That is the point that we will

be asserting at the retrial.

But it comes back to this, Your Honours, that

if, as we submit to be so, the order for discovery

was made here - consensually or otherwise it
matters not - because it was perceived by the court

to be necessary that such an order be made for

there to be a fair trial, logically it must follow

that there could not have been a fair trial if that

order was not made and fully observed. And the

undoubted fact in this appeal is that the order was

not fully observed.

MASON CJ:  I do not see how that follows logically, but

still, it is probably not necessary to dwell on

that. I can imagine many situations in which an

order for discovery is made on the footing that it

is thought that discovery is necessary for a fair

trial, but it does not transpire that non-discovery

would result in an unfair trial.

MR GRIEVE: Perhaps not; perhaps there is a flaw in the

logic. But be that as it may, descending to this

case, if the complexion that we contend can be put

upon these documents can be so put, then the

outcome of the trial, as the Full Court perceived,

was far from foregone in the Bank's favour and,

indeed, as the Full Court saw it, the trial may

well have resulted quite differently. In short, it

is implicit in what Their Honours have found that

they regarded the fact that these documents had not

been discovered as having, in the circumstances of

this case, the result that the trial was not a fair

one and it follows from that, at least, in our

submission, that the introductory -

GAUDRON J: But how can that be said, unless you could also

predicate that it could or might have had some

particular effect on the outcome.

MR GRIEVE:  We submit that it did, that it would have, for the reasons we have put.

GAUDRON J: Yes. But you do not really conclude the issue

by saying it was not a fair trial. You have to go

to the further extent of showing in what respect it

was not a fair trial and that seems to be very much

at large on the decided authorities.

Quade 13 10/5/91

MR GRIEVE:  We go back if we may, with respect, to the

introductory words of Mr Justice Dixon's statement

in Orr v Holmes, "If a trial has not been regularly

conducted". Now, it is our submission that in that

sense, while trial prima facie means hearing, it

embraces and carries with it the whole of the

curial supervision of the litigation, in other

words, all interlocutory steps from initiating

process through to judgment. Now what is rather

strange about this application for leave, in our

respectful submission, is this: in the affidavit

Mr Smythies says, at page 126 of the book:

Certain Bank documents (the "G documents")

were discovered in the action ..... These

documents are routinely discovered in other
foreign currency loan cases.

Then at page 130, in somewhat contrasting language, he says:

It is virtually unavoidable that where large

corporations (like the Bank) are involved in

litigation documents may remain undiscovered

despite the most diligent enquiries by the

legal officers and agents of the corporation.

This is particularly so, where (as here) most

of the relevant records do not specifically

relate to the transaction between the parties.

And then he speculates:

If the test applied by the Full Court is applied in the future there will undoubtedly

be a large number of retrials.

Implicit in all of that is the proposition

that large corporations regularly fail to observe

orders for discovery, a rather extraordinary

proposition, with respect. But also implicit, if

the documents here in question were not found	not bordering on explicit, is the suggestion that
despite the most diligent inquiries by the legal officers and agents of the Bank. In point of fact,
and we venture to suggest this from the bar table,
there being no real basis for dispute about it,
that after the trial a question was directed to the Bank - or a proposition was put to the Bank by those instructing us to the effect that we have reason to believe that you have not made full discovery to which somewhat innocuous suggestion or proposition the Bank said, "Oh yes, of course, here are a number of documents which we haven't previously declared."

Now, what our friends are really contending

for is the proposition that large corporations who

Quade 14 10/5/91

do not observe orders of the court may do so with

immunity and impunity. In our submission, that is a somewhat large proposition with which this Court

would have little time in its disposition.	Those
are our submissions, Your Honours.

MASON CJ: 

Mr Bennett, the Court is minded to make a grant

of special leave but there are two things I want to
raise with you. First of all, are you willing to

pay the costs of the appeal in any event?

MR BENNETT: 

Would Your Honour pardon me to obtain

instructions on that? Yes, Your Honour.

MASON CJ: Very well. The second thing is this: it is, I

would think, likely that the Court on hearing the

appeal will take up the question of principle and

would contemplate remitting the matter back to the

Federal Court to be determined in the light of such

principle as the Court enunciates or confirms.

Now, I should not, I think, say that that course

will definitely be taken, because it depends on

what attitude the members of the Court constituting the Bench will take, but I should alert the parties

to that very distinct possibility.

MR BENNETT: It would, no doubt, though still be necessary

for us to reproduce the documents for the Court.

MASON CJ: Yes, because I think it may be necessary to

illustrate matters by reference to the documents in

any event.

MR BENNETT: Yes. We will certainly bear that in mind. It

was something we had contemplated as a possibility.

MASON CJ: Very well. There will be a grant of special

leave on condition that the applicant pays the

costs of the appeal in any event.

MR BENNETT: If the Court pleases.
MR GRIEVE:	May it please Your Honours.

AT 11.12 AM THE MATTER WAS ADJOURNED SINE DIE

Quade 15 10/5/91