Commonwealth Director of Public Prosecutions v Poniatowska

[2010] HCATrans 304

[2010] HCATrans 304

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A20 of 2010

B e t w e e n -

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

and

MALGORZATA BARBARA PONIATOWSKA

Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 NOVEMBER 2010, AT 10.30 AM

Copyright in the High Court of Australia

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MS L.J. CHAPMAN, SC, for the applicant.  (instructed by Director of Public Prosecutions (Cth))

MS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MR S.J. DOYLE, for the respondent.  (Town & Country Lawyers)

FRENCH CJ:   Thank you, Ms Shaw.  Yes, Ms Abraham.

MS ABRAHAM:   Your Honours, this application raises the issue of how, under the Criminal Code (Cth), one determines whether omitting to perform an act is a physical element of a Commonwealth offence.

FRENCH CJ:   Can I just ask you about that before we get into this much further.  Just looking at the offence details set out at application book page 1, we simply have “engaged in conduct” and then there are particulars which do not seem to fit very logically with characterisation of the conduct.  They rather assert something which appears to be set up as a condition of entitlement to the said financial advantage.  So:

The defendant was not entitled to the said financial advantage, namely part payment of Parenting Payment Single, because the defendant failed to advise –

Now, there is embedded in that an allegation of a failure to do something, but it is really logically linked to the obtaining of a financial advantage rather than the conduct.  Then when we get to the magistrate’s remarks on sentencing, we have at paragraph 2:

The essence of the offending conduct is that over a period of about 21 months on 17 separate occasions, in written statements, you told Centrelink that you were not in receipt of any income –

It is not clear from the Full Court’s decision – and perhaps you can point to it if it is made clear – whether we are dealing with a failure to do something or with a positive statement that she had received no income?

MS ABRAHAM:   We are dealing with a failure to do something.  It is not explicitly stated in the Full Court except this.  The statement of facts, which is at the beginning of the Full Court judgment, paragraph 2 at page 29 of the application book, was not in issue in the Magistrates Court is the basis upon which this matter proceeded.  It was accepted in the Full Court that what one was dealing with is an allegation of omitting to perform an act and that there was an error in relation to the magistrate’s characterisation.

FRENCH CJ:   So the statutory framework is one in which she is required to do something positive to indicate income or is it a matter of filling out a form, an income report form every fortnight?

MS ABRAHAM:   Your Honour, she was not required at the stage of this offending to fill out any fortnightly form.  In my submission, this benefit is one that one obtains dependant on certain criteria and it is means tested, as is obvious from the statement of facts.  There is nowhere ‑ ‑ ‑

GUMMOW J:   Where do we actually see the statutory provisions?

MS ABRAHAM:   Of one ‑ ‑ ‑

GUMMOW J:   Of the social security system?

MS ABRAHAM:   They are not in the book, your Honours.

FRENCH CJ:   Fairly fundamental, are they not?

GUMMOW J:   We tend to start with them.

MS ABRAHAM:   With respect, no, and for this reason.  What one is dealing with is the offence provision and the offence is 135.2 of ‑ ‑ ‑

GUMMOW J:   Yes, offence of what?

MS ABRAHAM:   The offence of obtaining a benefit knowing you are not entitled to it.

GUMMOW J:   The benefit being what?

MS ABRAHAM:   A financial advantage from the Commonwealth.

GUMMOW J:   Being what?

MS ABRAHAM:   Money or extra money, as the case may be.

FRENCH CJ:   Payable under a statute, subject to conditions.

MS ABRAHAM:   Absolutely.

FRENCH CJ:   We need to know the statute and what the conditions are, do we not, to understand the offence?

MS ABRAHAM:   Your Honours, this was a guilty plea at first instance.

FRENCH CJ:   Yes, I know, but it mutated well beyond that.

MS ABRAHAM:   Certainly, I accept that.  But, your Honours, by looking at those sorts of issues, in my submission, is to, with respect, avoid the issue of what are the elements of the offence that we are dealing with here because, in the applicant’s submission, one is not looking to the question of whether or not there is a duty imposed under a law to do the act alleged to have been omitted to be done.  Rather, one looks to 135.2 to determine what are the elements of this offence and has the Crown proved the elements of this offence?  In my submission, that is the appropriate approach to the determination of the issue.  Not whether or not, if one goes way back, what were the conditions under which she obtained the benefit in the first place.  As I said, it was a guilty plea and one cannot, with respect, ignore that fact.

GUMMOW J:   I know, but you want special leave to determine some major point of principle which involves a lot of money to the Commonwealth.

MS ABRAHAM:   Yes, absolutely.

GUMMOW J:   How are we going to write a judgment if we do not know what the relevant provision is in the Social Security Act?

FRENCH CJ:   Well, it is not going to happen.  You have to address the Social Security Act.

MS ABRAHAM:  Certainly. It is section 500 in the Social Security (Administration) Act that deals with the conditions for the qualification for parenting payment which includes details in terms of the number of children and the like and single and the like, but it also includes, from 500, I think it is I, onwards, matters in relation to the financial circumstances that are necessary to be qualified for such a benefit.  I accept there is nowhere – and that section, no doubt, will be before the Full Court if one gets there.  But, with respect, that ignores the point that we accept there is no provision in the Act that says you must notify Centrelink of a change of circumstances, but, by the same token ‑ ‑ ‑

FRENCH CJ:   I am sorry, let me just understand it.  There is no statutory obligation – there is a criterion for entitlement which is based upon your means, including your income defined by reference, I presume, to particular intervals?

MS ABRAHAM:   Yes.

FRENCH CJ:   All right.  There is no general statutory obligation to notify.  There are administrative directions that can be made out and there is provision in the Act for those, as I recall.

MS ABRAHAM:  Yes, absolutely correct. So there is no section that says you must notify of every change. There is a procedure under section 67 of the Social Security (Administration) Act where ‑ ‑ ‑

FRENCH CJ:   For recovery of over payments.

MS ABRAHAM:   ‑ ‑ ‑ a secretary can issue a notice in relation to providing the change of circumstances, details which requires you to notify within 14 days.  Now, as is obvious from the statement of facts in this case, for a period of time clearly the respondent was required to notify of change of circumstances.  Indeed, jumping ahead, with respect, by the plea of guilty there is a clear acknowledgement that she omitted to perform an act that she obtained a financial advantage as a result and she was reckless as to that, but, importantly, she knew or believed she was not entitled to that.  In my submission, the appropriate Act to focus on ‑ ‑ ‑

FRENCH CJ:   There is a sort of a logical difficulty, is there not?  The question is whether she has pleaded guilty to a complaint which does not disclose an offence.

MS ABRAHAM:   Correct.

FRENCH CJ:   So you cannot take as your premise that she has pleaded guilty, that her plea of guilty involves an admission of all the elements of the offence, until you decide first of all what the elements of the offence are.

MS ABRAHAM:   I accept that with this exception.  The issue that is the subject of the application relates to the Full Court’s finding that one needs to find a statutory obligation to perform the act omitted in some Commonwealth legislation.  We say that is wrong, but leaving that to one side, in my submission, the plea of guilty at the very least does acknowledge that she did omit to perform an act, that she did receive the financial advantage and that she knew that she was not entitled to it.  It does not alter those fundamental facts.  They were unchallenged, with respect, in the statement of facts. 

In my submission, the appropriate section that should be focused on is the offence provision and, most importantly, section 4.3 of the Code.  Section 4.3 of the Code sets out the two alternative circumstances in which omitting to perform an act is a physical element of the offence.  The section is set out conveniently in paragraph 9 at page 32 of the application book.  The first circumstance is:

(a)the law creating the offence makes it so; or

(b)the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that by law there is a duty to perform.

It is the applicant’s submission that this falls within (a), the law creating the offence makes it so.  The law creating the offence is 135.2.  It appears at the bottom of page 31 of the application book:

(1)A person is guilty of an offence if:

(a)the person engages in conduct; and

(aa)as a result of that conduct –

et cetera.  “Engages in conduct” is defined in section 4.1 of the Code, which is set out in paragraph 10, page 32 of the application book, as meaning:

(a)do an act; or

(b)omit to perform an act.

In the applicant’s submission then, section 135.2(1)(a) reads the person does an act or omits to perform an act, then the next subparagraph, as a result of that conduct. In the applicant’s submission, section 135.2 makes it so, makes omitting to perform an act a physical element of the offence. Nothing more is required. In my submission, it is the interpretation of section 4.3 which is the critical issue in this application.

The Full Court below, in the applicant’s submission, erred in its conclusion that one needs to look first to find a duty to perform the obligation which is omitted, that is, a duty imposed by a Commonwealth statute.  It was wrong in its conclusion and, in my submission, it was wrong in its reasoning process.  Nowhere in the judgment is there a reference to an analysis of section 4.3, with respect.  Section 4.3 is cited without a doubt, but there is no analysis or discussion of 4.3(a), in my submission.  There is no discussion or analysis of how one determines the elements of an offence under the Criminal Code (Cth), that is the Chapter 2 provisions.

Importantly, when one looks at the reasoning of the court, there is also no discussion as to the elements of this offence.  Rather, what the court did in this instance, in my submission, was to commence its reasoning by looking at the common law and from the common law it, with respect, reasoned that one needed this additional element which is not supported by the Code.  Importantly, in the applicant’s submission, the court below, and indeed my friend in their submissions, does not and cannot point to any paragraph to support the conclusion of the court by reference to the Code. 

Your Honours, the critical errors appear in paragraphs 16 and 17 of the judgment, page 34 of the application book.  It is obvious from those paragraphs that the court is approaching it – I digress for a moment.  The paragraphs leading up to that conclusion is the common law approach.

FRENCH CJ:   I am wondering whether underpinning that approach taken by the Full Court is a concern about the need to be able to identify an omission in some frame or reference because once you can identify a duty, you can identify within that framework a class of omission defined by reference to failure to discharge the duty.  If you are out of any statutory frame of reference for the class of omission that can be invoked, then it leaves open a wide and almost indefinable range of absences of doing things and that to some extent is reflected, I think, in the notice of contention.

MS ABRAHAM:   Your Honours, it is obvious from, I think, the second and third of the reasons proffered by the court below that that is a concern that they had, but, with respect, that is not a basis upon which to interpret the words of the Code.  But, more importantly, in my submission, as a matter of fact that is not correct because one does not look at the omission in isolation.  Here, of course, one is dealing with obtaining a Commonwealth benefit.  One just does not get a Commonwealth benefit.  One is not always entitled to a Commonwealth benefit.  Obviously one has it on certain conditions. 

The crux of the provision, 135.2, is doing an act or omitting to do an act which results in you obtaining the benefit, obviously to which you are not entitled, and, importantly, you knew that you were not entitled to it.  In my submission, there is nothing complicated about a situation of saying, well, you are receiving a benefit that is means tested, circumstances have clearly changed, “I am now getting a whole lot of income, I have got a job.  I am not going to” – because it has to be a deliberate decision, intentional omitting to perform an act ‑ ‑ ‑

FRENCH CJ:   Logically, is there a possibility that the offence, as you would approach it, would collapse down to the offence of actually receiving a financial benefit to which you are not entitled and to which you know you are not entitled and failing to give it back?

MS ABRAHAM:   No.  Because one has to ‑ ‑ ‑

FRENCH CJ:   Because you retain it because you fail to give it back.

MS ABRAHAM:   Yes.  But, your Honour, it is not, with respect, as simple as that.  You have to have performed an act or omitted to do an act which results in you obtaining the benefit.  So in this instance a person has a job, I am getting an income.  You know you are not supposed to be getting an income and receiving this benefit.  You make a decision, “I am not going to inform Centrelink of that.”  As a result of that decision you get the benefit.  You know you are not entitled to that benefit.  In my submission, that is, with respect, the sequence one looks at because one needs to have obviously the fault element and the physical element as a ‑ ‑ ‑

FRENCH CJ:   But the omission in that case is defined, even if not by a duty, by reference to the statutory framework set up under the Social Security Act.

MS ABRAHAM:   Correct.  But, with respect, whenever one is talking about – this section relates to money from the Commonwealth.  One is talking about a situation where you know you are not entitled to it.  So, in my submission, it is not an amorphous – it can contain a whole lot of omissions, any number of scenarios postulated.  In my submission, one is not talking about that.  It is not necessary, with respect, to have a duty imposed by statute to enable you to identify what you have not done.  With respect, this is a classic example.  Nobody would think that you are entitled to not tell Centrelink, if you know you are on a means tested benefit, not tell Centrelink you are earning money simply with the result that you keep getting the money which you know you are not entitled to.

GUMMOW J:   Can you just attend to paragraphs 35 and 36 of the Full Court reasons for a minute, Ms Abraham?  Do you want to say anything about that?  Paragraphs which may go to the question of whether this is an appropriate case to take here.

MS ABRAHAM:   In my submission, the comments of the court in 35 and 36 are premised on the basis that one has to identify a duty and, on the applicant’s submission, you do not.  There was no question in this case that the applicant did not know what she was pleading to.

GUMMOW J:   What is the second sentence at paragraph 35?

MS ABRAHAM:   Yes:

The statement of offence in each case alleges that the appellant “engaged in conduct”.

GUMMOW J:   And the next sentence?

MS ABRAHAM:   “There is no reference to an omission”, yes, I accept that, but the case was conducted on the basis, as is obvious from the brief particulars that your Honours took me to at the beginning ‑ ‑ ‑

FRENCH CJ:   They do not purport to identify the conduct.  They purport to identify a condition of the entitlement.

MS ABRAHAM:   Your Honours, there can be no doubt that, in my submission, it being a plea of guilty, there was no question that what was ‑ ‑ ‑

GUMMOW J:   I know you keep saying that.  What I am suggesting to you is the Commonwealth probably needs to lift its game in drafting documents like this complaint at page 1.

MS ABRAHAM:   That might well be correct and, no doubt, that will be taken into account when one considers this judgment, regardless of what happens here, but, with respect, it is not a basis to suggest this is not an appropriate vehicle.  What this court has done has added, in effect, an element to determining whether omitting to perform an act is a physical element of an offence.  This is the only appellate court decision on this section.  It has huge ramifications not just for this case, not just for cases in the future, but cases in the past that have been conducted under this provision on the basis of the elements of the offence, as I have outlined them to the Court. 

How one determines the elements of a Commonwealth offence, how one applies Chapter 2 of the Code to determine those elements, in my submission, is clearly a matter of general importance.  This case is one where it has widespread ramifications.  If this decision is allowed to stand, as I said, it has ramifications not just for the future, but for the past.  The three bases on which it was put that the conclusion was supported was the common law.  I have already pointed to the fact that one cannot, according to the authorities, start with the reasoning from the common law, and the second and third are purely practical concerns which when one considers all the elements of the offence, in the applicant’s submission, cannot possibly support the contention.  When one is construing the elements of an offence for a Commonwealth offence, one turns first and foremost to the Code.  That did not happen here.

FRENCH CJ:   All right.  I think you are out of time.  Thank you, Ms Abrahams.  Yes, Ms Shaw.

MS SHAW:  May it please the Court. In relation to the first ground it is submitted that the Full Court accepted that an omission to perform an act could constitute the physical element of an offence under section 135.2 as long as it satisfies the requirements of sections 4.3(a) or 4.3(b) of the Code. In other words, this was a case where, rather than what my learned friend said, the charge was obtaining a benefit, the charge was engages in conduct. There was no particularisation of the particular act that was said to found that conduct and therefore the court was attempting to deal with an element of the offence, namely, engaging in conduct which was said to be an omission to perform a particular act.

When the court came to deal with – under 4.3 of the Code, which is at page 32 of the application book, paragraphs (a) and (b), the court was required to determine whether the omission that the Commonwealth relied upon fell within either (a) or (b), that is, it:

can only be a physical element if:

(a)the law creating the offence makes it so; or

(b)the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that by law there is a duty to perform.

This judgment is about the Commonwealth’s reliance solely on (a).  The reason the Commonwealth relied solely on (a) was because they disavowed any reliance on the provisions of the Social Security Act or Social Security (Administration) Act which provides a regime for the implementation and the enforcement of those who are the recipients of benefits.  Although my learned friend said to the court clearly the respondent was required to advise of a change of circumstances, the difficulty for the Full Court was, where did that claimed requirement come from?  You disavow reliance on the Social Security (Administration) Act. 

That Act does not require in its statute of operation that a recipient must advise of a change of circumstances. To the contrary. That Act requires – and the court refers to this at sections 67 and 74 of the Act at page 34 of the application book – that the requirement to advise of a change of circumstances is dependant upon the recipient receiving a notice. In other words, the argument for the prosecution here is that by interpreting section 135.2 broadly and ignoring the restrictions that we say are embraced in the definition of “omission” one actually has a broader obligation than the Social Security (Administration) Act itself provides.

So when the court put to the Commonwealth; well, when did this obligation to advise arise, you say you do not need a source for it, you say there is no source for it under (a); when did it arise, did it arise at the time she received income from her employer, did it arise at the time she received the advantage, namely, the benefit, again the prosecution was unable to be accurate, but the complaint itself alleges the date of the offence is the date that she received income from her employer.  That means the prosecution case must be that 135.2 expressly creates an offence that if you fail to notify the Centrelink people on the date you receive one penny, you are liable to be prosecuted under this offence. 

Again, that ignores the framework of the Social Security Act which has a means test calculator which enables a period of free income, enables an average income over a year.  I only say that to the Court to demonstrate that the argument that you must tell them if you receive income has no basis in the law.  In other words once the prosecution wedded itself to section 4.3(a) “the law creating the offence makes it so” and denied any reliance on (b), which of course would enable the Commonwealth to prosecute breaches of the Social Security Act under (b), then the court said, in essence, you cannot be liable under (a) unless there is a specific offence that makes your failure to perform that particular act an offence.

The court gave the examples at paragraph 30 on page 37.  So 4.3(a) is intended to refer to laws that make it an offence to perform a particular act.  What the prosecution seeks to say here by ignoring what we say is the qualification in 4.3(a), that the general expression “omission” is free ranging and can, in essence, overcome the strictures of the Social Security Act.  Not only that, the court went on to say that clearly this broad approach to the reference to omission has major practical implications and the facts of Nicholson, which the court referred to, bore that out, because in Nicholson’s Case the recipient of the benefit had actually told Centrelink that she had income, but they kept sending her the benefit.

FRENCH CJ:   You are making this sound like a special leave point, are you not?

MS SHAW:   Your Honours, I really wanted to make it plain that this was not a charge of obtaining.  There is a charge of obtaining under the Social Security Act.  This was a charge of engaging in conduct.  Nowhere in the charge, at no stage did the prosecution identify what was the particular act that the respondent ought to have fulfilled.  So if one goes to paragraphs 35, 37 and 39, the court, in essence, found that because there is no identification of the omission to perform the particular act as required by section 4.3(a), then the charge itself does not disclose any offence known to law.  That first element is necessary for the person to be found guilty of the offence. 

What in essence my learned friend is asking the Court to do, we would say, is to consider a hypothetical question.  If we assume that it is the failure to inform when she received the income and we do not know where that obligation comes from, if we assume it is when she received the benefit, the court would be asked to consider what, in essence, is an omission without any particularity and without any identification.  The fact of the matter is, there is a charge that the prosecution could have charged which fulfils the requirements that my learned friend has in mind.  This charge, in our submission, simply does not identify an essential element of the offence and therefore is not a worthy vehicle for special leave. 

Your Honours, in particular, the construction of the Commonwealth in essence fails to recognise that 4.3 is a limitation on the definition. It cannot be said that 135.2, without reference to a particular act, creates a particular act because the expression is “it” in the definition, “The law creating the offence makes it so.” Section 135.2 does not make, by reference to an omission, the failure to perform a particular act an offence. If the prosecution is right or the Commonwealth is right, (b) would have no work to do, because it would cover all omissions ‑ ‑ ‑

FRENCH CJ:   All of this is going to the correctness of the Full Court’s decision, is it not, in the area of contest?

MS SHAW:   It is, yes.

FRENCH CJ:   So why is this not a suitable vehicle?  Simply because the Full Court was correct?

MS SHAW:   Your Honour, the reason we say it is not a suitable vehicle is because the charge with which the court be concerned is not one that identifies the particular act that is the subject of the element engaging conduct or the subject of the omission to perform a particular act.  It is not in the charge.  It is unclear from the transcript of the Full Court argument what it said the omission is intended to be and therefore the court ‑ ‑ ‑

FRENCH CJ:   No, but that is a deficiency in the complaint which is independent of the constructional debate.  Is that the way you put it?

MS SHAW:    Exactly, and, in essence, the court says the ‑ ‑ ‑

FRENCH CJ:   Is that what your notice of contention is about?  Sorry to interrupt you.

MS SHAW:   Yes, it is.  In essence, the court deals with that and says the reason for the flawed complaint is because of the failure to identify a particular act and the failure to, in essence, acknowledge that 4.3(a) requires the identification of a particular act.  So the flawed nature of the charge is referred to at paragraph 37 when the court says when and in what

circumstances was there an omission in this case.  At one stage during argument it was put that she had 14 days after she received her income to notify them.  Well, your Honours, that again was an allusion to some provisions of the Social Security (Administration) Act in relation to the notice. 

So, in essence, the court says that in the absence of a clear answer to the time at which the obligation arose, then one cannot identify the particular act that is the subject of this charge and therefore one cannot identify what the obligations are that arise in relation to what is alleged. So it is the when and in what circumstances that the court has no information about because the charge fails to address this essential fact that is the first element of a number of elements of the offence under 135.2. In essence, the court repeats that section 135.2 by itself does not impose the relevant obligation. None has been alleged and therefore the complaint is flawed. In the absence of that essential element, the admitted facts could not support the charge.

FRENCH CJ:   Thank you, Ms Shaw.  Yes, Ms Abraham.

MS ABRAHAM:   Your Honours, my friend has made the submission that, in effect, the applicant is in this situation because it has nailed its colours to the mast in terms of 4.3(a).  Well, the reason, with respect, it is 4.3(a) is because of the words “engages in conduct”.  That is the limb of 4.3 that is enlivened, not 4.3(b).  Engage in conduct was put into the Criminal Code (Cth) for the specific purpose of covering the doing an act or omitting to do an act and so, in my submission, it is incorrect to suggest that it could be done some other way. Either it falls within 4.3(a), which we say, and it expressed, one cannot then, with respect, turn around and say, well, no, we are relying on (b), it is implied. In my submission, it is clearly, “The law creating the offence makes it so.”

Secondly, my friend keeps referring to a qualification and refers to a passage in paragraph 30, a qualification to section 4.3.  With respect, my friend has not pointed to any paragraph in the judgment or any aspect of the Code that creates any such qualification whatsoever and on my friend’s interpretation the words “engages in conduct” have no work to do whatsoever in the Code.  They are totally superfluous. 

Thirdly, my friend says that there is a perfectly good other provision which could be used.  With respect, I am not quite sure what provision that is supposed to be because apart from anything else, this judgment says in paragraph 38 on page 38 that the notices under the Social Security Act are not enough to create a duty.  So I am not quite sure what it is suggested could have been charged.  This decision relates to not just this offence, but

the offences in the Social Security Act, with respect, all Commonwealth offences in relation to where the terms in relation to omission apply. 

Your Honours, my friend has made the point that the first penny that goes into your account if you fail to notify, you are guilty.  Well, that is absolutely incorrect.  That ignores all the elements of the offence.  It ignores that what you must do is deliberately do an act or omit to perform an act which results in the benefit which you know you are not entitled to.  In my submission, examples like that highlight how the fear that having omission as an element creates this free ranging, it is just not based in reality, in my submission, and clearly is not a basis upon which to determine the elements of the offences. 

Finally, on the question of the complaint, I know your Honour Justice Gummow has made mention I keep saying it is a plea of guilty, it was and there was no complaint – it could have been amended.  What we do know is that all the arguments about the complaint are based on my friend’s submission that you need a legal duty or obligation and that is not in the complaint.  The applicant says you do not.  If we are right, in terms of the interpretation of 4.3(a), the offence provision makes it so, then there is nothing wrong.  There is no doubt that everybody in this case knew, with respect, that the omitting to do an act was omitting to inform in relation to income.

FRENCH CJ:   A plea of guilty, of course, does not convert a bad complaint into a good one.

MS ABRAHAM:   I am not suggesting it does, but the point is so important, with respect.  It has such widespread ramifications that we are – one does need to ‑ ‑ ‑

GUMMOW J:   That may raise a question of costs.

MS ABRAHAM:   The Crown is paying.  It is in my friend’s submissions.  It is a matter of such importance and it does have such widespread ramifications that, with respect – I do not agree with my friend’s submissions about the complaint because they are based and rooted on the question of duty, but, with respect, even if that were so – and we do not agree with it – this issue has such widespread ramifications and the decision below does not reason appropriately to its conclusion – is so flawed not only in its conclusion but its reasoning, that, in my submission, it is an absolutely appropriate case for this Court to deal with the issue.

FRENCH CJ:   Thank you, Ms Abraham.  The Court is of the view that this application for special leave should be referred to a Full Court on what I understand to be the agreed condition that the applicant will meet the costs of the respondent in any event.  Ms Shaw, it will be necessary, I think, if you are going to pursue that notice of contention, to perhaps sharpen it up a little.

MS SHAW:   Thank you, your Honours.

FRENCH CJ:   All right.  Thank you.

AT 11.09 AM THE MATTER WAS CONCLUDED