Commonwealth of Australia v Alan Griffiths and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples

[2018] HCATrans 28

[2018] HCATrans 028

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin   No D4 of 2017

B e t w e e n -

COMMONWEALTH OF AUSTRALIA

Applicant

and

ALAN GRIFFITHS AND LORRAINE JONES ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES

First Respondent

NORTHERN TERRITORY OF AUSTRALIA

Second Respondent

Office of the Registry
  Darwin   No D5 of 2017

B e t w e e n -

NORTHERN TERRITORY OF AUSTRALIA

Applicant

and

ALAN GRIFFITHS AND LORRAINE JONES ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

Office of the Registry
  Darwin   No D6 of 2017

B e t w e e n -

ALAN GRIFFITHS AND LORRAINE JONES ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES

Applicant

and

NORTHERN TERRITORY OF AUSTRALIA

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

Applications for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 16 FEBRUARY 2018, AT 12.36 PM

Copyright in the High Court of Australia

____________________

MR S.B. LLOYD, SC:   May it please the Court, I appear with MS N. KIDSON for the Commonwealth in each of the three special leave applications.  (instructed by the Australian Government Solicitor)

MS S.L. BROWNHILL, SC, Solicitor‑General for the Northern Territory:   May it please the Court, I appear with my learned friend, MR T. MOSES, for the Northern Territory in all three applications.  (instructed by Solicitor for the Northern Territory)

MR S.A. GLACKEN, QC:   If the Court pleases, I appear with MR G.A. HILL for the native title party in each of the applications.  (instructed by Northern Land Council)

MR P.D. QUINLAN, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friend MR T.C. RUSSELL for the Attorney‑General for the State of Western Australia intervening in each matter.   (instructed by the State Solicitor’s Office (WA))

MR S.J. WRIGHT; SC:   If it pleases the Court, I appear with my learned friend, MR M. O’DELL, on behalf of the fourth and fifth interveners.   (instructed by Central Desert Native Title Services)

NETTLE J:   It is noted that there are submitting appearances on behalf of the Attorney‑General of the State of Queensland. 

Ladies and gentlemen, our present inclination, which is plainly tentative, is to think that the matter raises questions of principles of general importance which would warrant the grant of special leave.  Recognising that there are differences between each of you as to which points are and which points are not sufficiently important for the grant of special leave, we thought we might adopt the course of hearing first from Mr Quinlan for Western Australia who is the only party that opposes the grant of leave on all issues as to why leave should be refused.  Mr Quinlan.

MR QUINLAN:   May it please your Honours.  The written submissions for the Attorney‑General for Western Australia in each case are largely the same.  They can conveniently be found at application book page 365 in response to the Commonwealth’s application.  In accordance with your Honour’s indication, of course, Western Australia does not contend that the principles for the assessment of compensation for the extinguishment of native title are not of general importance.  We accept that they are and, indeed, in an appropriate case it will be important and necessary for this Court to consider them.

GORDON J:   So why not this case?

MR QUINLAN:   In our submission because of the concession made by the Northern Territory and the agreement recorded between the parties which meant that for the purposes of the case section 51A and section 53 of the Native Title Act did not form part of any consideration in circumstances in which, as is demonstrated, in our respectful submission, by the course of the submissions filed in the special leave application would be necessary to consider generally the issues that arise under the division of the Native Title Act. 

Can I endeavour to make good that proposition under two headings, your Honours: firstly, the nature of the concession and agreement; and, secondly, the difficulties that they create for any appeal to this Court. As I indicated, your Honours, the concession related to section 51A of the Native Title Act, which is reproduced on pages 375 and 376 of the application book. Section 51A appears at line 20 and is headed “Limit on compensation” and provides that:

The total compensation payable under this Division for an act that extinguishes all native title in relation to particular land or waters must not exceed the amount that would be payable if the act were instead a compulsory acquisition of a freehold estate in the land or waters.

Then your Honours will see that that is subject to section 53 which provides, in effect, additional amounts in the event that the application of section 51A does not result in compensation for just terms. Now, importantly, in our submission, section 51A is not a limit of just terms, it is a limit of what:

would be payable if the act were instead a compulsory acquisition of a freehold –

and it poses a hypothetical amount upon an assumption that what is being acquired is freehold. 

Now, of course, a hypothetical compulsory acquisition of freehold may well include amounts in addition to the market value by way of solatium but that would be what the native title party in this Court, in their submissions at application 349, describes as “freehold solatium” which, for example, on the Northern Territory’s case is a moderate amount and does not envisage solatium for the loss of freehold of multiple times the market value. But, we say, whatever the amount is, section 51A applies as a monetary cap, subject to the application of section 53, and so the determination of that hypothetical amount is a necessary part of the section and the division.

Can I just pause for the moment?  On any view, as a result of the concession made by the Northern Territory, that exercise to determine the appropriate amount of compensation for an acquisition of freehold was not undertaken.  That is clearly expressed by the native title party to this Court at application book 349.  I refer your Honours there to the submissions made by the native title party in relation to a ground originally posed by the Northern Territory which I will come back to.  Your Honours will see at the bottom of page 349 commencing at approximately line 27:

The Territory’s 51A argument would also require an assessment of the compensation that would have been payable for the acquisition of a hypothetical freehold title, including a component for freehold solatium . . . The trial judge was not asked to make any findings of that sort –

A similar submission is made again by reference to what occurred in the Full Court in the Commonwealth’s submissions at application book 421. 

Now, can I take your Honours then to the Northern Territory’s concession itself?  It can be most clearly found in the submissions in this Court - in the reply submissions which appear at page 459 of the application book at the very back of volume 1.  Your Honours will see there that the Northern Territory submit that:

The concession made throughout these proceedings remains: the amount identified in s51A(1) (the amount that would be payable if the compensable were instead a compulsory acquisition of a freehold –

and then they refer to the sections:

is equivalent to what would be payable if s53(1) operated . . . by virtue of the operation of s50(1) of the Northern Territory (Self‑Government) Act 1978 (Cth). Hence, s53 can have no operation in this case –

Then our learned friends go on at paragraph 5:

That concession recognises that the Lands Acquisition Act (NT) contemplates compensation for a compulsory acquisition of a freehold estate in excess of the freehold value of the land, including by an amount to reasonably compensate the land owner for “intangible disadvantages resulting from the acquisition” -

Now, that paragraph and the explanation for the concession is critical, in our respectful submission.  It appears to be making the concession on the basis that the assessment of the value of a compulsory acquisition of freehold would have yielded the same amount as the compulsory acquisition of native title because of the capacity to award a freeholder compensation for intangible disadvantages.

Now, very briefly there are, in our submission, three problems with that proposition.  First, it does not accord with the Northern Territory’s statute itself in relation to intangible disadvantages.  The provision that our learned friends referred to in that respect can be found, your Honours, at page 416 of the application book which is the schedule to the Northern Territory’s submissions and that provision provides that:

If the claimant, during the period commencing on the date on which the notice of proposal was served . . . 

(a)occupied the acquired land as his principal place of residence; and

(b)held an estate in fee simple, a life estate or a leasehold interest –

an amount to reasonably compensate for intangible disadvantages is payable.  Then the matters going to that appear in rule 9(2) which make clear, in our respectful submission, that the focus there is upon the loss of a principal place of residence.  It is not, in our respectful submission, an assessment of the manifold cultural and spiritual effects of the extinguishment of native title.

The second reason that the proposition, in our respectful submission, has problems is that the proposition that the solatium for a freeholder could be equated to a native title holder’s intangible losses was in fact rejected by the Full Court in this case and the Full Court’s rejection of that proposition appears on page 283 of the application book at paragraph 377.  Their Honours refer to the submission of the Territory as to an approach of moderation and restraint in relation to awards for solatium and then make the point at line 19:

the context in which those provisions regularly apply are far removed from the case of the deprivation or impairment of native title rights and interests.  As emphasised by the primary judge throughout his reasons for judgment, there exists between Aboriginal people and their country a unique and powerful bond unlike the relationship which non‑Indigenous people have with land.

Thirdly, in relation to the Territory’s proposition, it is inconsistent with what the Territory then goes on to submit which is the relevance of section 51A in its appeal in any event. That appears in paragraph 2 of their submissions at page 458 of the application book and page 459 at 7 and 8. Can I then deal, your Honours, in the time I have remaining with why the concession matters and why it affects this case as an appropriate vehicle. May I take your Honours firstly to page 399 of the application book in which grounds originally proposed by the Northern Territory in paragraph 4.2 ‑ ‑ ‑

GORDON J:   That is no longer pressed.

MR QUINLAN:   No, that is correct, your Honour, and it was pressed because - it was no longer pressed as a result of the submissions made by the Commonwealth and the native title party that I have noted that it would require factual findings that have not been made.  The important point we make in relation to that is that it may be no longer pressed as a separate ground, but the Northern Territory submits at paragraph 2 of the submissions that appear on page - I should take your Honours to page 458, where the Territory submits that the:

ground is not pressed. However, ss51A and 53 of the NTA apply and operate in relation to the entitlement to, and liability for, compensation under the NTA. They bear upon the construction of s51 and cannot be ignored. Submissions may necessarily be made about the proper construction and purpose of ss51A and 53 in consideration of the –

whole scheme. That, in our respectful submission, demonstrates that even on the Northern Territory’s case, which we understand to be developed in the same way in terms of the questions of exercise of discretion as to what is described as the non‑economic loss, section 51A, as they put it, cannot be ignored and must necessarily be considered.

In our respectful submission, to concede that a provision does not apply and there be no factual foundation upon which to determine what its operation would have been but nevertheless that it has some application by reference to its effect on the other provisions is, in our respectful submission, an unsatisfactory position for a determination of matters of general principle and that, in our respectful submission, confirms that necessarily the correctness of the Northern Territory’s concession would need to be considered by the Court were it to consider those broader issues.

Determining the correctness of that question would, in our respectful submission, necessarily open up factual and legal issues not dealt with below. I have dealt the factual issues. In relation to the legal issues, can I simply make this point. As we said in our submissions, in our respectful submission, section 53 would operate to provide an additional amount payable by the Commonwealth in the event that section 51A did not provide just terms.

But importantly, the Commonwealth does not accept that position and the Commonwealth, as is evident from the Full Court’s judgment at paragraph 457, maintains that section 53 is never engaged in a case such as this because the extinguishment of native title and the validation of the extinguishing acts do not amount to an acquisition of property. So, if the Northern Territory’s concession was not correct, on the Commonwealth’s construction there would be even greater consequences for the native title party as there would never be compensation payable in addition to the limit imposed by 51A.

Now, none of those issues arose, given the manner in which the case was determined and run before the court below.  In our respectful submission, the government parties were entitled to run the case on the basis that they did and the court was properly to determine the case in light of the issues raised.

In that respect, your Honours, it is not as the Commonwealth submit against us, the consequence of WA’s position that a judgment which is fundamentally wrong will continue to stand as a binding precedent.  On the contrary, our submission is that the decision finally resolved the dispute between the parties within the confines of the manner in which the parties ran the case. 

Its precedent value, however, is necessarily limited by reference to the concessions upon which it is based and, in the same way, its appropriateness as a vehicle before this Court is similarly limited.  Unless there are any questions, those are our submissions.

NETTLE J:   Thank you, Mr Solicitor.  Solicitor‑General for the Northern Territory, may we hear from you as to the issue which the Northern Territory contends is not appropriate for the grant of special leave.

MS BROWNHILL:   The issue which we contend is not appropriate?

NETTLE J:   Not appropriate.

MS BROWNHILL:   There are two of those on the native title party’s part.  They are firstly that aspect of their ground 1 which relates to anything other than the inalienability of native title and how it bears on the value of native title rights and interests.  We have suggested that the inalienability issue is relevant for the grant of leave because it is captured by the Full Court’s reasons relating to the approach to valuation of native title, the Spencer test, and so on.

But the other parts of the native title party’s ground 1 simply do not have sufficient prospects of success, so they relate to firstly that the non‑exclusive native title rights and interests should be valued at freehold because no other persons held rights in the land; secondly, because the Racial Discrimination Act requires that the native title rights and interests, regardless of their content, be valued as equivalent to a freehold estate; and thirdly ‑ ‑ ‑

GORDON J:   You agreed that was the starting point though, did you not, in relation to market value - that is, freehold value?

MS BROWNHILL:   Well, the methodology that we propose under our ground 2 ‑ ‑ ‑

GORDON J:   No, I meant at that first instance.  The starting point was the freehold value was a method of assessment.

MS BROWNHILL:   Your Honour, we have always proposed that the economic methodology, Mr Lonergan’s methodology, which does involve taking the freehold value, but it is freehold value of a certain remote land which is unaffected by infrastructure and the development of roads and the like, so there is a freehold basis to Mr Lonergan’s methodology, but we have never put a position which said it should be a proportion of freehold.

So, a third aspect of the native title party’s ground 1 which we oppose is in relation to what the Northern Territory would have paid or been prepared to pay for the acquisition of the native title rights rather than the loss to the native title party of their native title rights and interests.

GORDON J:   The reality though is that, in a sense, given the nature of the general issue, that is, the assessment of economic value in general terms those sorts of questions, that is, the arguments it raised, give a context to that analysis, do they not?

MS BROWNHILL:   In terms of ‑ ‑ ‑

GORDON J:   I mean, to put it bluntly, they are going to be raised regardless of whether the question is there or not, are they not?

MS BROWNHILL:   Well, the native title party would certainly like them to be raised but our point is that those bases simply have no prospect of success.  The idea that you would ignore the nature and character of the non‑exclusive rights and treat them as freehold was rejected by both the trial judge and the Full Court and rightly so.  What the Native Title Act requires is assessment of the compensation applicable to the native title rights and interests affected by the compensable acts, not some other version of native title rights and interests which are not the native title rights and interests the subject of this proceeding.

So we say that those separated issues should not arise for argument and will not arise for argument in relation to the other grounds.  They are not necessarily captured by those other grounds.  The other ground that we oppose, your Honours, is in relation to ground 2 of the native title parties, the claim for an award of compound interest as opposed to the simple interest which is awarded by the trial judge and upheld by the Full Court. 

We oppose that ground essentially because there is no proper factual foundation for an award of compound interest, and secondly, because the ground of appeal has no prospect of success.  Put shortly, your Honours, firstly, the Native Title party did not seek to establish any kind of Hungerfords loss.  They expressly disavowed that that was what they were doing. 

They did not establish that the native title party falls within any of the existing category of cases in which compound interest is awarded.  So the submission that the Northern Territory was in a position of some sort of defaulting trustee or judiciary officeholder was rejected the by the Full Court. There has not been any appeal from that.  There was no relevant commercial context which would give rise to an obligation or an entitlement to compound interest.

GORDON J:   But we are in a different sphere here.  We are dealing with native title rights.

MS BROWNHILL:   Yes, your Honour, but the authorities and the principles relied upon by my learned friends in relation to an award of compound interest simply do not bite in this context either.

GORDON J:   That is the question.  Should they?

MS BROWNHILL:   Well, in our submission, there is no authority to support that ‑ ‑ ‑

GORDON J:   That is the question though.  That is for the Court.  That is why they are asking us to look at it.  No one has looked at it.

MS BROWNHILL:   But none of the contextual features - the fact that it is a native title proceeding as opposed to any other proceeding - do not sufficiently attach to the existing principles to create the notion that somehow they should extend to this field, to the native title field.

GORDON J:   Well, that is why the analogy was drawn and you say court rejected it to a trustee or that sort of category of case, not because it fits within that category but because of the analogy that was sought to be drawn.

MS BROWNHILL:   The analogy does not work and ‑ ‑ ‑

GORDON J:   It may not work perfectly but that is the question.  The question is - it is the ideas that underpin it, you would say the principles that underpin it which this Court has been asked to address.

MS BROWNHILL:   The arguments that underpin an award for compound interest essentially relate to some sort of restitutionary basis.  Well, in this case, the Native Title Act is not speaking of restitution.  It refers to compensation for the loss or diminution of the native title rights.  It is a compensation which is directed to the loss, not restitution which is directed to what the Northern Territory gained from the extinguishment of native title.

The compound interest aspect is also directed to relieving the Northern Territory of what it gained as opposed to compensating the native title holders for what they have lost.  Even if one applies the equitable principles, what those principles do is give rise to a presumption of loss, if you like – a presumption of a certain kind of loss which is compensated or provided for by compound interest.

But the facts as found by the trial judge would rebut that presumption because those facts included - they are set out, your Honours, at 275 to 278 of the trial judge’s reasons, page 81 of the application book. 

So there was insufficient evidence before the court of the native title holders:

engaging in commercial activity, referenced to their interests in land ‑ ‑ ‑

GORDON J:   I thought the proposition was put more broadly rather than just commercial interest.  I thought it was put in the sense as an element of the loss that they had suffered, that is, that they had been deprived of it as a question of deprivation.

NETTLE J:   Hence, it was put into damages and so forth rather than in the way it would ordinarily ‑ ‑ ‑

MS BROWNHILL:   Well, as I say, there was no establishment of loss in that sense, in the Hungerfords sense and the presumption of loss that equity might give rise to was inconsistent with the facts as found which were that when the native title party was paid compensation for loss of native title rights and interests they did not reinvest that compensation such that compound interest would be the proper reflector.  They spent the money.

GORDON J:   Well, I think that is the question - whether that is even a question.  It is back in the damages assessment question about the deprivation.  Anyway, I think we understand the argument.

MS BROWNHILL:   If your Honours please.

GORDON J:   Do you wish to say anything on the non‑economic loss element in addition to what has been said already?

MS BROWNHILL:   Well, we have put our position in writing, your Honours.  I do not think I can, in the time, usefully dissect any more of that.

NETTLE J:   Thank you, Madam Solicitor.  Mr Lloyd and Mr Glacken, we need not hear from you.  Thank you. 

In each of these matters, there will be a grant of special leave on all grounds.  Each applicant will file and serve a notice of appeal on or before Friday, 2 March 2018.  It is noted that the Northern Territory of Australia no longer presses paragraph 4.2 of its appeal grounds.  The Commonwealth of Australia will file one core appeal book for all three appeals by Friday, 23 March 2018.  The Commonwealth and the Northern Territory shall each file and serve one set of submissions for all three appeals, that is to say a consolidated set of submissions and any further material they may rely upon by Friday, 6 April 2018.  Any interveners in support of the Commonwealth

and the Northern Territory will file and serve one set of submissions for all three appeals by Friday, 20 April 2018.

Alan Griffiths and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples will file and serve one set of submissions for all three appeals and any further material they may rely upon by Friday, 4 May 2018.  Any interveners in support of the claim group shall each file and serve one set of submissions for all three appeals by Friday, 18 May 2018.  The Commonwealth and Northern Territory shall each file and serve a reply, if any is to be filed, for all three appeals by Friday, 25 May 2018.  Finally, the Commonwealth shall file one joint book of authorities by Friday, 8 June 2018. 

Ladies and gentlemen, are there any further directions sought at this stage?  Mr Lloyd.

MR LLOYD:   Yes, your Honour, can I just indicate one thing?  In relation to the joint appeal book to be filed on 23 March, there is some secret men’s evidence that was confidential before Justice Mansfield.  Different orders were made in relation to that to go to the Full Court which only allowed female judicial officers to see it - no other females have been allowed to see it so, no other court staff or the like.  At the moment, those orders do not allow for any of that material to be brought to this Court and so I just flag that there may need to be ‑ ‑ ‑

GORDON J:   That would not be in the core appeal book, would it, under the new regime?  I do not think it would be.  The core appeal book is limited to things such as the decisions below - I forget the whole list but it is no material in terms of ‑ ‑ ‑

NETTLE J:   It is not evidence.

GORDON J:   It is not evidence.  It is no material in the core book.

NETTLE J:   Under the directions.

MR LLOYD:   Perhaps so, it would not ‑ ‑ ‑

NETTLE J:   More generally though, Mr Lloyd.  When and if it becomes necessary to consider this material, what is proposed to be done about it?  If one cannot look at it, how does one deal with it.

MR LLOYD:   Well, I will consult with Mr Glacken on the matter and see if there is a mechanism under the current orders. If not, we can either go back to the Federal Court to vary their orders or come to this Court to make different orders if we cannot agree upon it.

GORDON J:   I mean, let us be abundantly clear.  It would not be in the core appeal book under the regime that came into place as of 1 January this year.  So the question is whether or not people need to rely upon it as part of their further material, that is, as part of the submissions that they are filing as part of the directions that Justice Nettle has just read out.

MR LLOYD:   Yes, it was relied upon in the Full Court in relation to ‑ ‑ ‑

GORDON J:   How was it dealt with there?

MR LLOYD:   So, in the Full Court an order was made which allowed Justice Mortimer to see an abbreviated version of the material.  Her Honour did not see the whole version.  The court was given an abbreviated version of the material which both sides accepted was sufficient to deal with the matter and so what we would suggest, and I have not had a chance to discuss this in any detail with my friend, is that if it is needed, that same abbreviated version would become available to this Court.

NETTLE J:   Perhaps I may hear from Mr Glacken on the point.  Mr Glacken, is this likely to be a problem?

MR GLACKEN:   No, I have already set in train seeking instructions but we need to speak to the men concerned who are not with us.

NETTLE J:   If it becomes a problem, an application can be made to a single Judge as quickly as possible.

MR GLACKEN:   Exactly, and just to clarify what Mr Lloyd was mentioning is that we produced a redacted version that was slightly less sensitive for digestion and obviously there would be a confidential volume produced with restrictions, if the material is filed.  So, I do not envisage there to be problem but I hear what your Honour says for liberty to apply.  While I am on my feet, can I mention two matters?

NETTLE J:   Certainly.

MR GLACKEN:   One is a sensitive matter, page limits.  This might be a case where we would want to seek leave to enlarge the usual limits.

NETTLE J:   Do you have any idea yet of how long you would like to run?

MR GLACKEN:   Well, we are very much responding but I would have thought it is a 40‑page‑type case - for example, in‑chief on an appeal for our part.

NETTLE J:   That rather feeds into the question of how long this appeal or appeals will take to hear, how many days.

MR GLACKEN:   I would say at least two.  I would probably want to hear what my friends have to say about that.  Their grounds on non‑economic loss, in our submission, will require some traversing of material beyond the record of the judgments.  But the next thing I wanted to mention is that we have suggested in the papers that the parties bear their costs, the case being in the nature of a test case and that is what has occurred to date, albeit partly informed by the Native Title Act. 

I am happy though for the question of the costs of the application, the costs of the appeal just to be dealt with in due course by the Full Bench but I thought I would mention it now.  Nobody has embraced our suggestion that the parties bear their own costs.

NETTLE J:   Thank you, Mr Glacken.  Mr Lloyd, are you seeking an expansion of the number of pages for the written submissions?

MR LLOYD:   We are, your Honour. We have given that some thought.  There are, I think, in the order of about 18 grounds amongst the different parties.  We had hoped that something in the order of 80 pages to be spread across the totality of all the submissions that are put in so we would - I understand we are to put in under the orders your Honour read out earlier our submissions on all three appeals at first but part of our submissions are responding to the native title party’s case which they have to ‑ ‑ ‑

GORDON J:   That is right.  So the idea is that there would be one submission by you on all three issues:  economic, interest and non‑economic.  I mean, the parties know what the arguments are.

MR LLOYD: Yes, well, I think we are content with that but in terms of space there is one other issue which I apprehend ‑ maybe I will be shown to wrong, but Western Australia is going to make a submission about how one construes section 51A because they seem to say it affects the other points. If that is right they will then presumably say what they said to the Court today, that section 53 should be construed on the basis that the extinguishment of native title would enliven section 53 of the Native Title Act which would - it seems to be part of their case.

GORDON J:   But you would deal with that in reply, consistent with the orders, would you not?

MR LLOYD:   Yes, but all I wanted to say is that that in itself is quite a large issue which is likely to see all States want to intervene on that question because it becomes a matter of significance whether or not the

extinguishment of native title does amount to an acquisition of property otherwise on unjust terms under section 51(xxxi).  So that itself would be a lengthy matter.  That is why we think 80 pages across everything, I know it is very long for this Court, but that is a whole matter which has never even been addressed before and our submissions were much longer than 80 pages in the courts below.

GORDON J:   This is the High Court, Mr Lloyd.

MR LLOYD: I appreciate that, your Honour, but on the concept of 20 grounds of appeal, plus this sort of potential new constitutional point, it is much larger than one matter. I am sorry, your Honour, the other question my friend raises; how long the hearing might last - it ran for five very full days in the Full Court, in the Full Federal Court and that did not have this additional section 53 constitutional argument.

We would think even that two would not get through it but maybe four or five days would be appropriate.  I accept that the length - if there is a spin off or a trade‑off  between the length of the hearing and the length of the submissions, if we had a bit more space in the writing, we could have a bit less time on our feet.  That is what I would ask for, in any event. 

NETTLE J:   Thank you.

MS BROWNHILL:   Your Honours, we support Mr Lloyd’s application in relation to both page limits and the assessment of the time of the hearing.

NETTLE J:   Thank you.

Ladies and gentlemen, what we propose to order at this stage is that the page limits of the submissions be increased to 50 pages, subject to the condition that if, after due consideration and the application of appropriate effort, it is found impossible to get within the 50 pages, a further application can be made to the Registrar for an increase beyond that. 

Perhaps, equally importantly, as to the time it will take to argue these appeals, the concept of four to five days is a little alarming.  Even three days is a very substantial amount in this Court, as you all know.  What we wish you to do is to start thinking about ways in which you can deal with the issues so as to allow the argument to be completed in three days. 

That is going to require a good deal of co‑operation but it is the sort of co‑operation that is to be expected in a matter of this kind which is not only about money, but other things in a sense.  So we are putting it down as an estimate of three days in the belief that counsel will do what is necessary by agreement between themselves in the way in which they present their cases to achieve that objective. 

Thank you for your assistance.

AT 1.18 PM THE MATTERS WERE CONCLUDED