Commonwealth of Australia v Toohey

[1988] HCATrans 194

IN THE HIGH COURT OF AUSTRALIA

Registry No Cl5 of 1988

Between-

THE COMMONWEALTH OF AUSTRALIA

Plaintiff

and

BRIAN TOOHEY

Defendant

Ex parte application for an

injunction

MASON CJ

(In Chambers)

Toohey

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 1 SEPTEMBER 1988, AT 12.7-0 .PM

Copyright in the High Court of Australia

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MR S.P. CHARLES, QC: If Your Honour pleases, in this matter

I appear with MR N. YOUNG on behalf of the plaintiff.

(instructed by the Australian Government Solicitor)

HIS HONOUR:	Yes, Mr Charles.
MR CHARLES:	Your Honour should have a number of documents

including a generally endorsed writ and four

affidavits, one by the Minister for Defence,

one by the Minister of State for Trade Negotiations

and presently responsible for Foreign Affairs,

one by Mr Leach and a fourth by Mr Barry Leader.

HIS HONOUR:  I have those.

MR CHARLES: Has Your Honour had the opportunity of reading them?

HIS HONOUR: Yes, but I have read them very hurriedly, Mr Charles.

I have not necessarily absorbed all the detail

in them but I have a general picture in my mind

of the materials on which you rely.

MR CHARLES:  May I take the Court then very briefly to

the material?

HIS HONOUR:  Yes.

MR CHARLES: If I could ask Your Honour to turn firstly

to Mr Duffy's affidavit. Your Honour, the affidavit -

if I can take the Court after the first paragraph,
we then exhibit the article which was "The Hayden

Papers" from "The Eye".

(continued on page 3)

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Toohey

MR CHARLES (continuing):  Then on page 2 the assertion is

made that Mr Toohey'has no authority to have

in his possession any documents of the kind referred

to"and that they are confidential and that, ordinarily,

would be dealt with under the ARCHIVES ACT.

Then, Your Honour, in paragraphs 4 and 5 in relation

to the allegation that publication would be inimical
to Australia's public interest - in relation
to the purported disclosure of comments in relation
to Indonesia I refer Your Honour to page 9 of

the article at point 1 in the left-hand column.

I am simply seeking to identify for the Court,

at the moment, which - - -

HIS HONOUR: Yes, I see, the part in quotes.

MR CHARLES:  Yes. Then, Your Honour, I should add that one

passage which has not been specifically referred
to in the affidavit but which contains material

of which complaint would be made in relation

to Malaysia would be on page 9 in the left-hand

column at point 5.

HIS HONOUR:	And this relates to the ASEAN meeting?
MR CHARLES:	To Ghazalie Shafie.
HIS HONOUR:	Yes,  I see that.
MR CHARLES:	Yes, Your Honour. Again in quotation marks.

Then, Your Honour,	thirdly, in relation to Japan
- on the same page,	in the left-hand column at
point 7.

HIS HONOUR:	Yes.
MR CHARLES:	And in relation to Papua New Guinea on the

tenth page, the right-hand column, the bottom

half of it, under the heading "Nobody is mature

but me".

HIS HONOUR:	Yes.
MR CHARLES:	Then, Your Honour, in paragraph 6 the reference

to communications with Mr Schultz - they are

set out on page 8 and there is what purports

to be a photograph at the top of some of them
and then an alleged quotation "What Schultz wanted

the Labor Government to say", and that is dealt

with generally on page 8 having been introduced

on the previous page 7.

HIS HONOUR:	Yes.
MR CHARLES:	Your Honour, the allegation of damage is contained

on page 3, paragraph 7.

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Toohey

HIS HONOUR:  Well, the problem is this, is it not, there

has been disclosure and such damage as arises

from disclosure has already been incurred?

MR CHARLES: If I may so, Your Honour, of course that would

be true. However, Your Honour will see from

the rest of the material that the matters to

which our complaint is particularly directed

is that Mr Toohey has said that he has some

10,000 documents; that he .has culled from them

"some gems" and what we are concerned about is

what might be contained in the remainder of the

material.

HIS HONOUR:  Do I take from that statement that you are

not seeking injunctive relief in relation to

the documents which are the subject of the revelations

made thus far?

MR CHARLES:  No, Your Honour. We are seeking injunctive

relief that covers all of the material for this

reason: that we have not yet seen any of these

documents; we do not know if a full disclosure

of what is contained in them might have other

deleterious consequences. What we would seek,

Your Honour, until the documents are produced -

(Continued on page 5)

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Toohey

HIS HONOUR:  In our words, you are suggesting that the

documents which are the source of the disclosures

thus far made may contain additional information

which has not yet been published?

MR CHARLES:	Yes, Your Honour.
HIS HONOUR:	The publication of which would be detrimental to the plaintiff?
MR CHARLES:	Yes, Your Honour.
HIS HONOUR:	And to the national interest, yes, I follow.
MR CHARLES:	Yes.  I accept, if I may say so, what Your Honour

said in the JOHN FAIRFAX case in 1980	would cover
directly what has already been disclosed.

HIS HONOUR:	Yes.
MR CHARLES:	Your Honour, then the next affidavit is that

of Mr Beazley, and if Your Honour would be good

enough to keep nearby "The Eye".

HIS HONOUR:	Yes, I have it close to me.
MR CHARLES:	In paragraph 4, Your Honour, there is reference

made to the purported disclosure of information

relating to intelligence-gathering activities

and that is referred to, of course, on page 10

of "The Eye" and the allegation of potential

damage is made on the second page, in paragraph 5.

Your Honour, it may be helpful if I go next to

Mr Leach's affidavit. That is one which sets

out two transcripts taken from programmes broadcast

last night:  one was of a television programme,

"The 7.30 Report" on which Mr Toohey was interviewed.

HIS HONOUR:  You can proceed to the transcripts. I have read

the body of the affidavit.

MR CHARLES: 

The purpose, Your Honour, of the exhibiting of

these two transcripts is, in the first place,
to establish authorship by Mr Toohey and, secondly,

and this is in particular in relation to the

second of the transcripts, the assertion made

by Mr Toohey that he has a great deal more material

and, as to that, I refer Your Honour to the

first page of the transcript at point 4 where

Mr Toohey deals with how the material fell into his hands or that he does not want to say how

it did.  Then, on the third page, the interviewer

asks him whether we are all in for more interesting

reading, and a fascinated public is informed
that the documents were not all of a high standard

C3T3/1/SDL	5	1/9/88
Toohey

and that he has picked out a few of the gems and

that he hopes:

people will continue to give me this sort

of stuff.

HIS HONOUR:  Let us have a look at the first page first.

The interviewer says to him:

Well, how did ten thousand pages of sensitive

documents find their way from Parliament

House, or the Foreign Affairs Department,

to your magazine?

Mr Toohey responds by saying he:

never find it very useful to detail these

things -

so he throws no light on how the documents found

their way to the magazine but he does not deny

that there are 10,000 pages of sensitive documents? -

MR CHARLES:  No, indeed, Your Honour, and if .I may say so,

that should be taken with the first page in

"The Eye" dealing with "The Hayden Papers" where,

in what we say is now established to be Mr Toohey's

document -

HIS HONOUR:	There were more than 10,000 pages,
often poorly filed, with little regard for subject, sensitivity or choronology.

MR CHARLES:  Yes. And, in the next paragraph, Your Honour,

there is reference to the proper handling of

classified documents - his concession that they

are classified. And, in the middle of that column,

the reference to the:

fuller assessment of Hayden's term as

Foreign Minister will have to wait the

release of other official documents under

the 3O-year rule. But under "The Eye's

Archival Early Release Scheme, he appears

to have left little of substance.

All of which simply goes to support the case

we make that this was clearly confidential material.

HIS HONOUR:  Yes. What was the additional passage

you wanted to refer me to in the second transcript?

You said on page 2 there was something else

I should look at.

MR CHARLES:  On page 3, Your Honour, the last page of it.

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Toohey  HIS HONOUR:

sadly they were not all of a high
standard.

MR CHARLES:  Yes.

They lose their gloss over a few years.

HIS HONOUR:

I picked out what I thought were the

gems. I hope people will continue to

give me this sort of stuff.

(continued on page 8)

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Toohey
MR CHARLES:

I never signal my shots too much. I don't

particularly want people hitting me over the

ears with injunctions and so forth.

Now, lastly, Your Honour, Mr Leader's affidavit.

That relates to the proceedings in 1983 which,

again, it was said that a very large number of

documents fell off a truck, or in some other
way, into Mr Toohey's hands and Mr Toohey swore

the affidavit, a copy of which Your Honour has -

HIS HONOUR:	Yes.
MR CHARLES:	- - - dated 10 May, which contained the

surprising information that all the documents had

been destroyed by him within the last few days.

HIS HONOUR:  What inference do you seek to derive from

that, Mr Charles?

MR CHARLES:  The inference we seek to derive from that,

Your Honour, is related to the relief we seek

because what we do seek, in addition to injunctions

preventing further disclosure, are two orders

in particular. One requiring Mr Toohey to

deliver up to the Registrar of this Court these

documents and, secondly, the filing of an

affidavit by him indicating where the documents

are and if he has given them to anyone else,

to whom he has given them.

HIS HONOUR:	Yes.
MR CHARLES:	We are concerned, Your Honour. about a variety

of things, obviously, the p~eservation of evidence

that would be relevant to the future of this

case. The fact that Mr Toohey, in a past case,

has deposed to the disruption of evidence,

possibly during the case, certainly immediately

before the case, as supporting our application

for orders of the ANTON PILLER kind.

HIS HONOUR:  And you want the preservation of what you

claim are your documents?

MR CHARLES:	Yes, Your Honour.
HIS HONOUR:	Yes.
MR CHARLES:	Your Honour, that, shortly, is the affidavit

material. I do not believe there is any necessity to

take Your Honour to the generally endorsea writ.

HIS HONOUR:  No, there is no occasion to do that.

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Toohey

MR CHARLES:  I should add, Your Honour, that the Sydney Morning

Herald this morning did contain further material.

May I hand up a copy of an extract from the front page of that paper?

HIS HONOUR:  Yes. That will be Exhibit A.

EXHIBIT:  Exhibit A ..... Copy of Extract

MR CHARLES:	Your Honour will see from that that a further set of allegations appears in today's Sydney
Morning Herald, co-authored by Mr Toohey and
Mr William Pinwill and relating to matters
involving Nauru.  It is simply, Your Honour,
that it relates to matters outside material
published previously in "The Eye".

HIS HONOUR:  Yes. Then what you suggest the inference

to be drawn is that this may be just the second

instalment in a series of publications that will

take place from time to time based on the contents

of documents in the possession of the defendant.- - -

MR CHARLES: Exactly, Your Honour.

HIS HONOUR:	- - - that are the plaintiff's documents?
MR CHARLES:	Yes.
HIS HONOUR:	Your Honour, what appears then from the material

is that there has been publication of a selection

of documents from what Mr Toohey has said were
of the order of 10,000 and Mr Toohey and "The Eye"

have made a selection to allow readers:

a rare glimpse of the way in whibh foreign

Hayden era. policy was formulated and conducted in the

That appears on the first page of the article

in the left-hand column.	The material is claimed
by Mr Toohey to be highly confidential.	I have

referred Your Honour to the passages: "classified material", "the 30-year rule", his "archival early

release scheme". We say, Your Honour, that the

evident purposes and the inevitable effect of

that publication by Mr Toohey would, firstly,

be to prejudice Australia in its relations with

friendly neighbouring countries; secondly, to

expose the way in which foreign policy is formulated

and conducted; thirdly, to embarrass and damage

Mr Hayden; fourthly, to expose the collection of national security information and by each of these

means to obtain a journalistic scoop for profit.

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Toohey

MR CHARLES (continuing): Now, it is, in our submission, obvious

that only a small selection of the documents

has presently been dealt with. That is Mr Toohey's

own admission. It is, in our submission, inherently

likely that if any documents are in Mr Toohey's

hands publication has been selective and deliberately

unfair, misrepresenting the views both of Mr Hayden

and the Australian Government in respect of its

foreign relations. It is our submission, and

we refer Your Honour to the form of what appears

in "The Eye", to the cartoon that appears on

the first page of it and to the passages encapsulated

in quotes in various parts of the article, that

it is steeped in malice. Any claim that the

author is engaged in an exercise - - -

HIS HONOUR:	Is that particularly relevant, whether or not it is "steeped in malice''?
MR CHARLES:	Only this, Your Honour, that it relates to

how Mr Toohey may use the remainder of the material

in future and therefore bears upon the nature

of the relief we seek.

HIS HONOUR:  Yes. And likewise you suggested that one of

the motives was to embarrass and damage Mr Hayden.

Is that relevant to the relief you seek? I can

understand your concern and your identification as a

ground for relief of an unauthorized disclosure of

contents of the plaintiff's documents, disclosure

of which will be prejudicial to the national

interest but how does the purpose of damaging

or prejudicing, or embarrassing, Mr Hayden - - -

MR CHARLES:  In two ways, Your Honour. Firstly, we say

it goes to the Court's discretion. Secondly,

to the extent that Mr Toohey said in defence

that he was engaged in an exercise of open government

and facilitating open government, we would submit

that that would be demonstrated to be blatant

hypocrisy by the venom which informs the whole

tone of Mr Toohey's article.

HIS HONOUR:  But am I concerned with hypocrisy and venom

and malice?

MR CHARLES:  Only to the extent that Your Honour is considering

defences that might be raised in this ex parte

application.

HIS HONOUR:	Yes.
MR CHARLES:	Now, Your Honour, we seek relief of the type

referred to in the ANTON PILLER orders in addition

to the injunctions which Your Honour would expect

us to be seeking. May I hand up to the Court

short minutes of the sorts of order that we would

ask the Court to make?

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Toohey

HIS HONOURS:  I do have in front of me - which apparently

was a document included with the affidavits handed

to the Court - short minutes of order. Is the

document you are now handing up identical with

that or is it different from it?

MR CHARLES:  I hope it is the same, Your Honour.

HIS HONOUR: Yes. All right, I will look at it and see

if it is the same. It seems to be the same but

it has the advantage that the typing is clearer.

It is the same, Mr Charles.

MR CHARLES:  Your Honour, on the first page we ask for an

interim order restraining further publication.

HIS HONOUR:  That is not on the first page. The first page you

have got the plaintiff's undertakings.

MR CHARLES:  I am terribly sorry, Your Honour. It 1s

paragraph 1 on the second page.

HIS HONOUR:  Yes. Now, before you come to the second page,

have you filed the endorsed statement of claim with

the writ of summons?

MR CHARLES:  We have filed, Your Honour, I believe, a generally

endorsed writ. It does not have a statement

of claim.	The writ is generally endorsed,
Your Honour.

HIS HONOUR:  I see. Yes. Well, is the second undertaking

formulated in appropriate terms in the light

of the fact that you have filed a writ of summons

with a general endorsement?

MR CHARLES: It is not, Your Honour. It was created in

a form which contemplated a different type of

application. The word "file" 'plainly should

be removed although we do need to file a notice

of motion.

HIS HONOUR:  Yes. Should you not express it this way:

"the plaintiff undertaking to serve on the defendant

on or before" - and what date do you want to

put in there?

(Continued on page 12)

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Toohey

MR CHARLES:  I would imagine, Your Honour, that we would

contemplate serving this afternoon so long as

we are able to find Mr Toohey.

HIS HONOUR:  Yes. On the assumption that I am going to

grant you ex parte relief, it seems to me that

we ought to contemplate an application on your

part to continue the interim relief granted

today, that application to be made to the Court

on Tuesday of next week at 10. 15. Would that

be a suitable time as far as the plaintiff

is concerned?

MR CHARLES: Yes, Your Honour.

HIS HONOUR:  That being so, on or before, shall we say

Saturday, 3 September?

MR CHARLES:	Yes, Your Honour.
HIS HONOUR:	Of course, if you fail to serve the defendant

within the time limited, that does not preclude

you from moving to continue such interim relief

as is granted to you.

MR CHARLES:	Yes, Your Honour.
HIS HONOUR:	And then after a"Writ of Summons generally

endorsed", we had better include the words, "And

to file and serve on or before that date a notice

of motion to continue the injunctions"'.

MR CHARLES:	Yes, Yor Honour.
HIS HONOUR:	Then we come to page 2 -the orders you want.
MR CHARLES:	Then, in four separate- parts;, there is set out

the interim restraining injunction which we

would ask Your Honour to grant.

HIS HONOUR:	You say:
be restrained until  on

Would it not be better to express it in terms of: "restrained until further order"?

MR CHARLES:	Yes, indeed, Your Honour, it would.
HIS HONOUR:	The only problem about that is that we assume

that you will be moving to continue the injunctions

at 10. 15 on Tuesday.

MR CHARLES:	We will in any event, Your Honour, certainly.
HIS HONOUR:	You would in any event.
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Toohey
MR CHARLES:	Yes.
HIS HONOUR:	What are the documents referred to in "an

article"? Can you assure me that those are all

documents which can be identified as Commonwealth

documents?

MR CHARLES:  No, I cannot, Your Honour, the difficulty

being this:  we have only Mr Toohey's description

of them, in the first place, in the article

in "The Eye", in the first paragraph, in the

le ft-hand column on page 7; secondly, in that

second interview which is referred to in Mr Leach's

affidavit, where, on page 3, Mr Toohey refers

to:

So you say you've got ten thousand pages of documents - are we in for some more

interesting reading?

Toohey: Well, sadly, they weren't all

of a high standard.

We would say, Your Honour - - -

HIS HONOUR:  You cannot draw the inference, can you, that

all Commonwealth documents are of a high standard,
because some are of a high standard they are not
Commonwealth documents? It would be an inference

I would be prepared to draw, actually, Mr Charles,

but still - - -

MR CHARLES:  I would instantly if I had, Your Honour,

which he asserts were cleared out when Mr Hayden

I do not think I did. What we submit is that

was leaving his desk. We say that at this

stage, at least, Mr Toohey has conceded that

he has a very large number of Commonwealth documents;

as to whether they are all Commonwealth documents

or not, we pray in aid ARMOURY V DELAMIRIE

We say that all things should be presumed against

the wrongdoer, at least at this stage.

HIS HONOUR: Yes, very well - paragraph (a). Paragraph (b)?

MR CHARLES: We ask for that; Your Honour, because we simply do not

know whether Mr Toohey may say that the documents

now in his possession, which are Commonwealth

documents, were those referred to in the article

in "The Eye" or not.

HIS HONOUR:  Are official documents of the Australian

Government readily recognizable as such?

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Toohey

MR CHARLES:  They would not invariably be so, Your Honour,

but if they are classified, as Mr Toohey has said

they were, they would be covered with an appropriate

stamp.

HIS HONOUR:  Yes. Is there a problem in relation to(~),

in that the documents described are documents
described as ones'which are or were in the possession
or control of the Minister of State responsible
for foreign affairs, or the Cormnonwealth departments

responsible for foreign affairs and defence",

How would an outsider know whether the documents

are or were in the possession or control of such

a minister?

MR CHARLES:  Your Honour, an outsider might well not. We

say that Mr Toohey would be the one person who

cannot be in any doubt about these matters.

HIS HONOUR:	Yes.
MR CHARLES:	If I may say so, the same applies to the

third paragraph.

HIS HONOUR:	Paragraph 3 or paragraph (c)?
MR CHARLES:	That is (c) on page 2, I am sorry, Your Honour.
HIS HONOUR:	Yes. What about paragraph (d)?
MR CHARLES:	That, Your Honour, covers two matter. If

Mr Toohey has taken extracts from the documents

they would be covered in the wording in (a)

but suppose, for example, that Mr Toohey has

prepared further articles for publication

which contain information but which do not

contain copies or extracts That is what is

intended to be covered by (d), Your Honour.

HIS HONOUR:  Yes. The difficulty, of course, about (d)

is that it ranges very widely and it may, in fact,

prevent Mr Toohey from disclosing contents of

documents, the disclosure of which would not in

any way prejudice the public or national interest?

MR CHARLES:  I accept that, Your Honour, and I can only

ask for that order on the basis that it is to

operate for a very short time.

HIS HONOUR: Paragraph 2?

MR CHARLES:  Yes, Your Honour. Paragraph 2 on page 3 is

based upon the material in Mr Leader's affidavit.

We want to keep in existence the documents

necessary to this action.

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Toohey

HIS HONOUR:  Yes, they are your documents and you want to

maintain their existence?

MR CHARLES:  Yes, Your Honour. Paragraphs 3 and 4 on page 3

if I may say so, would	be orders sought in the
alternative to that on	the next page. The orders
sought on page 4, Your	Honour, is the standard
ANTON PILLER order.

HIS HONOUR:	Yes.
MR CHARLES:	If we had orders in the form of 3 and 4, we would

be satisfied with orders in that kind.

HIS HONOUR: Rather than the ANTON PILLER order in 5. If

Your Honour had any doubts about giving the whole of the orders sought, we would prefer the

orders in 3 and 4. If Your Honour is prepared to

grant the order in 5 as well, we would be very

happy to take it. As to these orders I should

raise, the application being ex parte, the fact

that Your Honour will no doubt appreciate that

the defendant might wish to take the privilege

against self-incrimination.

HIS HONOUR:	Yes.
MR CHARLES:	Now, as to that, Your Honour, that would be

a matter which can be taken by him at the time
of the filing of any affidavit, if he wishes

to do so, and in relation to 4, likewise, that

might also bear upon the obligation to produce

documents. It would be our contention, if I

can raise it in advance, that there is no possible

field for the operation of the privilege in this

case having regard to the fact that the defendant,

far from asserting any privilege, has very proudly

proclaimed his possession of these documents.

One would submit that there can be no more classic

case of waiver of privilege of that kind.

HIS HONOUR:  But there is little point in you addressing

me on that question, the question is academic at

the present time.

MR CHARLES:	Yes.
HIS HONOUR:	I suppose you are hoping that what you say achieves

some diss.emination so that the plaintiff's attitude

to any such reaction is known in advance?

MR CHARLES:  Not entirely, Your Honour, though that may,

indeed, be a part of it. We are very conscious

of the fact that this is an ex parte application

and in case Your Honour thought it relevant to

any order the Court might make.

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Toohey
HIS HONOUR:	Yes.	Now, the time you have nominated in

order 3 is 4 pm on Friday, 2 September?

MR CHARLES:  Yes, that is tomorrow, Your Honour.

(Continued on page 17)

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Toohey

HIS HONOUR:  Now, if there are 10,000 documents, it is somewhat

unrealistic, is it not, to expect that the defendant will

be able to swear an affidavit specifying precisely these

matters?

MR CHARLES: That would depend, Your Honour, on what exactly

Mr Toohey has done with the documents.

HIS HONOUR:	Yes.
MR CHARLES:	If he has kept them all in one place -and it may

be hopeful to think that that has happened - if they

are in one place it would be a simple matter.	We would
ask for an order in that kind.

HIS HONOUR: Is the time important to you?

MR CHARLES:  It is important only in this respect, Your Honour:

that there is indication from the past, from the

material in Mr Leader's affidavit, to indicate that

Mr Toohey has a penchant for destroying documents

involving cases of this kind.

HIS HONOUR:  But if one were to make the assumption that that

penchant continues as a characteristic, why would not

the documents be destroyed before 4 pm on Friday?

MR CHARLES:  They, Your Honour, may leave the place where they

presently are which, of course, is not known. They raise

matters of the greatest importance as a possibility.

HIS HONOUR:  Yes, very well, you have satisfied me on order 3.

Compliance with order 4 may be a little more difficult

within that time.

MR CHARLES:  Your Honour, it is suggested to me that if the

words "in Sydney" were added after "the Registry of

the High Court" in Sydney.

HIS HONOUR:  Order 4 will read this way, Mr Charles:

Further -

We had better take the words "further" and "alternatively"

out. So it will commence: ·

The defendant deliver to the office of the

Registry of the High Court, 7th Floor, La Salle

Building, Corner of King and Castlereagh Streets,

Sydney on or before 4.00 pm on Friday

2 September 1988 all documents -

then it goes on.

MR CHARLES: Yes.

C3T8/l/AC	17	1/9/88
Toohey

HIS HONOUR:  Now, what about order 5?

MR CHARLES: Firstly, Your Honour, as to that, if Your Honour

were to make the order we would, of course, abide

by what was said by the Court of Appeal in the

ANTON PILLER case - the obligation to warn the

defendant of his rights and to give him an opportunity
of seeking legal advice before taking any such

step. But, I accept, Your Honour, and I put

it at the outset that if we obtain the orders

in 3 and 4 then we have really got what ought

to be sufficient to protect the plaintiff.

HIS HONOUR:  In those circumstances, I will not make order 5.

MR CHARLES: If the Court pleases.

HIS HONOUR:  Order 6:

returnable at Canberra on Tuesday

6 Septenber 1988 at 10.15 am in No 3 Court,

High Court, Canberra.

And then I will make order 7. So that I shall make

orders in terms of the short minutes of order

excluding order 5 in that document upon the

undertaking set forth in that document which

I shall sign and place with the papers.

MR CHARLES:  And would Your Honour be good enough to reserve

costs and certify?

HIS HONOUR:  Yes, I will do that. Now, is there anything

else, Mr Charles, or does that conclude the matter?

MR CHARLES:  That concludes the matter, Your Honour.

If the Court pleases.

AT 12.57 PM THE MATTER WAS ADJOURNED SINE DIE

C3T8/2/AC	18	1/9/88
Toohey