Cox & Ors v FMG Pilbara Pty Ltd

[2009] HCATrans 277

[2009] HCATrans 277

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P16 of 2009

B e t w e e n -

ANGELINA COX AND ANGIE COX AND ANNABELLE STEWART AND ARNESS JAMES AND CHARLESTON COX AND CHLOE HAYES AND DARRYL HUGHES AND GARY HUGHES AND HAROLD ASHBURTON AND LILY MACKAY AND MAUDIE DIOWTON AND MITCHELL DRAGE AND MAURICE DAUBLIN ON BEHALF OF THE PUUTU KUNTI KURRAMA & PINIKURA PEOPLE (WC01/05)

Applicants

and

FMG PILBARA PTY LTD
(ACN 106 943 828)

First Respondent

WINTAWARI GURUMA ABORIGINAL CORPORATION (WC97/89)

Second Respondent

STATE OF WESTERN AUSTRALIA

Third Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 14 OCTOBER 2009, AT 12.55 PM

Copyright in the High Court of Australia

__________________

MR V.B. HUGHSTON, SC:   If it please your Honours, I appear with MS A.M. MITCHELMORE for the applicants.  (instructed by Yamatji Marlpa Aboriginal Corporation)

MR E.M. CORBOY, SC:   If your Honours please, with MR S.M. DAVIES I appear for the first respondent.  (instructed by Green Legal)

MR G.M.G. McINTYRE, SC:   May it please the Court, I appear for the second respondent.  (instructed by Corser & Corser Lawyers)

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MR G.J. RANSON, on behalf of the third respondent.  (instructed by State Solicitor for Western Australia)

HAYNE J:   Yes, Mr Hughston.

MR HUGHSTON: If your Honours please. Your Honours, it is submitted that this case involves an issue of public importance, which is also of very considerable importance to native title holders and native title claimants throughout the country. The State of Western Australia in their summary of argument accepted the proper interpretation of section 31(1)(b) of the Native Title Act is a question of law, of public importance, although, of course, the State of Western Australia does not accept that the decision of the Full Court is attendant with sufficient error.

The issue, your Honours, really is whether the obligation imposed on governments and miners alike by section 31(1)(b) to “negotiate in good faith” with native title parties “with a view to obtaining” their agreement to the doing of a future act which may adversely affect their native title rights and interests is satisfied by negotiations which are procedural or preliminary in nature, or where there have only been cursory discussions about the proposed act.

Now, the Full Court was hearing an appeal under section 169 of the Native Title Act and it is an appeal on matters of law only, so the Full Court held that on the facts found by the National Native Title Tribunal the first respondent had fulfilled its obligation to negotiate in good faith as required by section 31(1)(b) and that the Tribunal had power to conduct the inquiry.

The Full Court appears to have reached that conclusion by taking the view that the Tribunal had found that the first respondent:

negotiated in good faith during the six month period –

referred to in section 35(1)(a) –

with a view to reaching the relevant agreement.

The Full Court considered that there was “nothing more under the statute” that was required of the first respondents, and your Honours will see that at page 8 at paragraph 28 of the reasons of the Full Court.  It is application book 61 at line 30.

As we say in our summary of argument at page 82 of the application book in paragraph 21 the Tribunal did not find that the negotiations conducted between the first respondent and the applicant over the six‑month period following the notification day were conducted in good faith with a view to reaching the relevant agreement. In the Tribunal’s opinion, section 31(1)(b) contemplated negotiations directed to obtaining the agreement of the native title party to the doing of the future act that was the subject of the section 29 notice, and the Tribunal found – as we say it was entitled to find – that the negotiations which had occurred in this case did not meet that description.

HAYNE J:   Well, we understand that there is a difference of result obtained at the two levels.

MR HUGHSTON:   Yes.

HAYNE J:   The question then becomes, does it not, whether there is a sufficiently arguable case of error in the Full Court in its conclusion.

MR HUGHSTON:   It does, your Honour.

HAYNE J:   What do you say is the error that the Full Court made?  Where do we most conveniently identify what you say to be the error?

MR HUGHSTON:   Well, firstly, your Honour, there is a general ground of appeal in the sense that – bearing in mind that the Full Court is acting on the factual findings of the Tribunal, and the Tribunal said that it was satisfied on those facts that there had not been negotiation in good faith.

HAYNE J:   The implicit premise in the finding by the Tribunal differed from the premise of the Full Court, did it not, and the debate becomes whose premise is right about what it means to negotiate in good faith?

MR HUGHSTON:   That is right, your Honour.  What the difference was, was the Tribunal found that to negotiate in good faith there had to be some substantive negotiations about the doing of the future act which discussed the effect of the future act on the native title rights and interests.  The Tribunal placed a lot of reliance on subsection 31(2), and subsection 31(2) of the Native Title Act says that:

If any of the negotiation parties refuses or fails to negotiate as mentioned in paragraph (1)(b) about matters unrelated to the effect of the act on the registered native title rights and interests of the native title parties, this does not mean that the negotiation party has not negotiated in good faith for the purposes of that paragraph.

Now, we would submit, your Honour, that it is clear from that paragraph that the focus of the negotiations in section 31(1)(b) is to be the effect of the proposed act on the registered native title rights and interests, and here ‑ ‑ ‑

HAYNE J:   You will need to put that again because it is not immediately apparent to me why that follows.  Subsection (2) tells you that certain refusals or failures do not constitute absence of bad faith.

MR HUGHSTON:   Yes, your Honour.  Well, it is a legislative indicator ‑ ‑ ‑

HAYNE J:   …..go from there?

MR HUGHSTON:   Well, your Honour, there is no guidance provided other than perhaps the guidance that is provided in subsection (2), which indicates that if you negotiate in relation to the effect of the act on the registered native title rights and interests then you are negotiating in good faith, because it is only when you refuse to negotiate on matters unrelated to the effect on the native title rights and interests that there could be a finding that you have not negotiated in good faith.

Your Honours, the difference between the Tribunal and the court relates to whether there is an obligation under this section to actually come to grips with the act that is to be done, and the Tribunal’s findings were basically that the grantee party had negotiated in good faith in relation to matters of process but had never advanced those negotiations to a stage where there was any, or any significant, discussion about the effect of the proposed future act on the native title rights and interests.

Bear in mind, your Honours, that at the request of the grantee party the native title party here had entered into extensive negotiations, far more extensive negotiations than would be required for a single mining tenement.  These were broad, claim‑wide negotiations in relation to a full land access agreement.  The first four months of the six‑month period was taken up in negotiating a negotiation protocol in terms of how the land access agreement would be negotiated.

As we point out in our submissions, there was correspondence between the parties, indicating that the negotiations in respect of the particular future act would be included, or will be included, in the negotiations in respect of the wider land access agreement, but it never got to that stage because within little more than a month or so of the negotiation protocol having been reached, and after there had only been the one meeting at which there had been any discussion of this particular tenement – that was on 5 November – the grantee party applied for a determination; that was on 23 November, so five or six months has been spent negotiating, if you like, on the negotiation protocol.  How are we going to negotiate this agreement?  Then when we do negotiate this agreement we will include in those negotiations, negotiations for the future act, but they never got around to the negotiations about the future act.

HAYNE J:   Now, are you able to identify where in the Full Court reasoning you say the Full Court erred?

MR HUGHSTON:   If your Honour pleases, yes.

HAYNE J:   The next question, so that you have it in mind, is then to relate that to the express language in the Act, Mr Hughston.

MR HUGHSTON:   If your Honour pleases.

HAYNE J:   They are the two that have to be on the table.

MR HUGHSTON:   Your Honours, if I could take you to page 60 of the application book, paragraph 22:

There are two obligations –

this is under section 31(1)(b) –

The first is that the negotiations which are directed to reaching an agreement are to be carried out in good faith and the second is that a period of not less than six months has passed since the date on which the s 29 notice is given.

We say that that is an error because it should include the fact that irrespective of whether the negotiations are directed to the – sorry, because it is accepting that that is all that is required irrespective of whether those negotiations are directed towards the doing of the future act, and here the negotiations were in relation to a negotiation protocol with a view to negotiating a broader land access agreement.

HAYNE J:   Now, therefore, do I understand you to assign error to paragraph 22 on the footing that the negotiations which are directed to reaching an agreement need to be further particularised as the negotiations are directed to reaching an agreement about the particular future act?

MR HUGHSTON:   Yes, your Honour, there needs ‑ ‑ ‑

HAYNE J:   Where do you root that in the Act?

MR HUGHSTON:   Well, that is in 31(1)(b), your Honours, because the obligation is to negotiate with a view to obtaining the agreement of the native title parties to the doing of the future act, so the focus is on the doing of the future act.  What we are arguing is that there must be some direct negotiations about the doing of the act because the negotiations, to be in good faith negotiations, have to be with a view to reaching an agreement to the doing of the act.

There has to be a closer or more direct nexus between the negotiations that occurred here, otherwise people could, I suppose, bona fide approach negotiations with a view to getting to know people, getting to know the native title claimants, taking them out to lunch, et cetera, et cetera, all with a view to getting their agreement eventually to a future act without ever once discussing the future act.  They are being honest, they are just slowly getting to know the native title parties, and then once the six months has elapsed they put in their application, saying, “Well, look, we were bona fide, we were doing what we were doing in an effort to reach agreement, but we could not do it”.

Look at it in the context of this case where rather than concentrating on the issue of this single mining tenement, for which the legislation obviously thinks six months is an appropriate time to negotiate, and the grantee party in good faith wants to negotiate a much broader agreement involving infrastructure, roads, an indeterminate number of tenements, and not just over the area of this tenement but over the whole area of your claim, and that six months is not going to be enough.

Now, they have acted bona fide, they have entered into those negotiations to get your agreement, I suppose, on the future act eventually, along with your agreement on all these other many things, but they have never, ever once focused on that particular future act, and they probably never will, they will not have time to do so.  Now, that is the error and that is the matter of principle.

HAYNE J:   Yes.

MR HUGHSTON:   Now, your Honours, I was identifying the passages in the Federal Court’s reasons where we say the error is shown.  It can also be shown in paragraph 23 where:

The Tribunal concluded, as PKKP asserted, that there cannot be negotiation for the purpose of s 31(1)(b) of the Act if the negotiations are only embryonic. We do not agree that there is a requirement for negotiations to have reached a certain stage.

Now, we say that by “embryonic” again it is a reference to the fact that there had only been the one meeting on 5 November 2007 where there had been any discussions about this proposed tenement, and then 18 days later they filed for an arbitrated determination.  That is why the negotiations in respect of getting the agreement of the native title parties to the doing of that future act were at an embryonic stage.  The negotiation protocol had only just been negotiated, had only just been agreed, a month or so prior to that, so when the Tribunal talks about the negotiations being at an embryonic stage that is what they are meaning.  They are really saying that the negotiations in respect of the proposed future act have not really started yet.

At paragraph [62] of the Tribunal’s reasons you will say that the discussions by the time the application had been lodged were only “cursory”, and there is a very good summary, if you like, of the factual findings of the Tribunal at paragraph [57] of their reasons at page 33.  Again, if you read, your Honours, what is in that paragraph and you bear in mind two things:  firstly, that the notification day was 25 April 2007, so the six months commences to tick then, and it was on 23 November about just under seven months later that the application for a determination was made, and then read what is in [57] in terms of what was done.  I mean, for example, you will see that at about line 22 that:

it was at the 31 May 2007 meeting that the grantee party confirmed its desire to negotiate a LAA with the first native title party and that a negotiation protocol would govern the conduct of negotiations.

So we are already a month in.

It was only by the 6 September 2007 that representatives of the grantee party confirmed that they wanted to include negotiations for the proposed tenement in the overall negotiations for a claim wide LAA.

Well, four and half months had already passed at that stage of those six months and all they are indicating at that stage is that they want to include them in these larger land access agreement negotiations, but, of course, first we have to have the negotiation protocol.

You will see that in response to that that there was a meeting on 24 September 2007 and it was then that “the negotiation protocol was endorsed”.  So it is a full five months after the notification day before the negotiation protocol – the negotiation protocol does not relate specifically at all to this future act, it relates to this huge project‑wide agreement.  So the process has only just been arrived at to commence the negotiations, and shortly after that they terminate the whole thing.

Now, in those circumstances there was never any hope, never any chance, that they would get around to negotiating about the effect of this particular future act on the registered native title rights and interests within six months, and they would not get around to it because being bona fide, being honest, being reasonable, they wanted to approach this project, or this future act, as part – just as a small part – of a much larger project.

Common sense indicates that it is going to take a lot longer to negotiate that larger project than it would to negotiate that single tenement, and that is what the Tribunal found, that they were acting in good faith in relation to the process, but by acting to apply for a determination by arbitration just after the six months had expired, that was the factor which indicated that those negotiations had not been negotiations in good faith in relation to obtaining the agreement of the native title parties to the doing of the act in question.

HAYNE J:   Can I just see if I understand that last set of propositions you advance.  I understood them to be one, you accept that what occurred during the months leading up to the date in November was done in good faith and honestly?

MR HUGHSTON:   Yes, your Honour.

HAYNE J:   But you say that that conduct, though in good faith, was what?

MR HUGHSTON:   Was not directly connected to, nor could it be construed as, negotiations in good faith to get the agreement of the native title parties to the doing of the Act.  They were negotiations in good faith about preliminary matters.

HAYNE J:   Preliminary matters which by hypothesis were raised bona fide?  Is that right?

MR HUGHSTON:   Bona fide if one wanted to negotiate this broader agreement, I suppose, to simply discussing the particular future act.  Your Honour, if there are to be negotiations in good faith, there must be, in our submission, some more direct nexus between those negotiations and the act which is proposed and these negotiations never reached that threshold.  They did not reach that threshold, not through any fault on the part of the native title party, but because of the desire on the part of the grantee party to bundle it up as part of a much larger negotiation.

If the Act gives you six months as being a reasonable period of time to negotiate over a single tenement it is not reasonable, you are not negotiating in good faith to try and expect that you can fit in the whole of that negotiation for all of those projects within that six‑month period, and you can judge objectively good faith from the moment the application is made to the Tribunal because the Tribunal has to determine whether, as at the date that application is made, this party has negotiated in good faith for six months, and although up until that point, it might have given every appearance of negotiating in good faith, when you look at the whole of its conduct from the date that it lodges the application, viewed objectively, it has not negotiated in good faith as required by 31(1)(b) in relation to getting agreement about the doing of the Act.

BELL J:   A moment ago you said that in such a case the party would not have negotiated in good faith for six months, but that is not ‑ ‑ ‑

MR HUGHSTON:   There is a – negotiated in good faith in relation to process, but that is not what is required by the section.

BELL J:   But here at first instance, there was a finding that there had been negotiations with a view to obtaining the agreement of the native title parties to the doing of the act.  They had only reached a cursory stage but nonetheless they had been conducted honestly and in good faith.  Is that a fair summary?

MR HUGHSTON:   I would not characterise a single discussion as being a cursory discussion.  The Tribunal described it as being negotiation.  The Tribunal found that the negotiations never reached substance, never reached substantive matters.  Your Honours will see that at paragraphs [91] and [92] of the Tribunal’s reasons, about page 43 of the appeal book.  Your Honour will see that:

the grantee party offered, and the native title parties agreed, to a process whereby the proposed tenement would be negotiated in the context of broader claim-wide negotiations.  In both instances when the negotiations were terminated by the lodging of a future act determination application there was neither a resolution of the claim‑wide agreements nor any substantive negotiations concerning the doing of the proposed future act.

The Tribunal returns to that in paragraph [92], at about line 15:

the parties had reached agreement on process but never advanced to substance.

They never negotiated on substance.  Insofar as the process negotiations were concerned, the grantee party negotiated in good faith, but the negotiations were embryonic, again a reference to the fact that they never actually got round to discussing substance.  If your Honours please.

HAYNE J:   Thank you, Mr Hughston.  Mr McIntyre, your party has not filed any submission.  Do you seek to be heard, and if you do seek to be heard, in whose favour would you seek to be heard?

MR McINTYRE:   I do not seek to make any further submission than has been made.

HAYNE J:   Thank you.  Yes, Mr Corboy.

MR CORBOY: If your Honours please, in our respectful submission, the error in the Tribunal’s reasons as identified by the Full Court was, with respect, a simple error in the application of section 31(1)(b) to the facts as found by the Tribunal and there is, in our submission, no question concerning the construction of that section arising out of the Full Court’s reasons that requires further consideration and clarification. The Full Court’s decision was, as your Honours appreciate, unanimous and it was a succinct statement of how the Tribunal erred in the circumstances of this matter and, in our respectful submission, the decision was plainly right.

I will develop this shortly, but what my learned friend’s submissions this afternoon demonstrate is that ultimately what the Court is being asked to grapple with at this level are really matters of fact and degree, questions of fact and degree in the application of the section to the circumstances and, in our respectful submission, if one looks at the Full Court’s findings, they can be encapsulated in a series of statements which, but for one, has no controversy attached to them.  My first, of course, is that section 31(1) itself requires:

(b)the negotiation parties must negotiate in good faith with a view to obtaining the agreement of each of the native title parties to:

(i)the doing of the act -

Now, it is worth breaking down those elements in the light of your Honour Justice Hayne’s question, “negotiate”, “in good faith”, “with a view to obtaining the agreement” to “the doing of the act”. They are all quintessentially factual inquiries. They are all pre-eminently inquiries into what transpired in the negotiations between the parties and that is where the applicants in this matter want to take this Court at the appellate level into the detail of the negotiations to persuade the Court to reach a different conclusion to the Full Court’s determination based on what the Full Court said was an error of law by the Tribunal, that is, to place a gloss on section 31(1)(b).

That gloss arises, in our respectful submission, this way.  What the Full Court then said was that the Tribunal found that the first respondent had negotiated in good faith for a period of more than six months – reference to section 35 and I will come back to that in a moment – with a view to obtaining the agreement of each of the native title parties to the doing of the future act.  Now that is the real gravamen of the applicant’s complaint.

HAYNE J:   I suspect that, to put it at its most tendentious against you, and like all tendentious propositions you need to perhaps be careful of it – I suspect the argument against you is that 31(1)(b) should be read as meaning “must negotiate in good faith about the terms of a possible agreement”.

MR CORBOY:   Yes, and that is how we characterise the error of law below.  In our notice of appeal that was the error that we identified and that is picked up at paragraph [49] of the Tribunal’s reasons, application book 31, where:

The obligation is to negotiate about “the doing of the act”.

Now, at [52], the Tribunal then expressed the correct statutory test, but the error is to strip the words “with a view to” of their width and their utility by substituting the word “about” or “over”, and that was the error that we identified, or one of the two errors that we identified below, and which the Full Court accepted was the error, the gloss on the statutory provision which had led the Tribunal into arriving at the wrong conclusion.  The characterisation of the Tribunal’s ‑ ‑ ‑

HAYNE J:   It perhaps should be said, Mr Corboy, that the further you are away in your negotiating stance from the terms of an agreement, the closer may be the scrutiny that has to be applied to what is happening.  That is a question of fact in a particular case, I understand that, but when you are talking about the size of paper on which the agreement might be recorded, rather than what might be recorded, there might be some question about whether the negotiation is “with a view to”.

MR CORBOY:   I accept entirely, your Honour, and we indicate in our written submissions in relation to special leave question 2 that of course the Tribunal goes into the substance of what has occurred and one might ultimately conclude that the negotiations are at such a general level and so far removed from the doing of the future act that they are not negotiations “with a view to”.

Plainly that is right, but plainly that is also a question of fact and degree.  As to why the Full Court said that the Tribunal had indeed concluded that there had been negotiations with a view to obtaining agreement is because the Tribunal accepted that it was entirely appropriate for there to be negotiations at the project or whole of claim level, and that appears at paragraph [47], application book 30 of the Tribunal’s reasons, and it is picked up then by the Full Court in support of its characterisation of the Tribunal’s reasons as embracing and finding that there had been negotiations with a view to the doing of the future act in question.

That is made abundantly clear then by the Tribunal’s reference to Thomas, a case which emphasises that it may be, in fact, bad faith to negotiate on a tenement by tenement basis in a whole of project context because that may, in fact, lead to consideration of the impact of the future act on the native title parties in a way which is entirely unfair, because the impact may only be properly assessed in the context of the totality of the project.  So if the negotiating party was to force the negotiations into considering just an isolated grant of a tenement, that in itself may be in bad

faith because it deprives the native title parties of the opportunity to have the impact of what is proposed being fairly assessed.

The Tribunal then goes on at [50] to again emphasise that it is entirely appropriate for there to be whole of claim negotiations and that this is something which is contemplated by the Act and is consistent with the Act and with other parts of the Act and then at [52], again to emphasise the point, it says:

As previously stated, it is open to the negotiation parties to subsume individual right to negotiate discussions into broader claim wide discussions.

So we say that the Full Court found, and rightly found, that the Tribunal had held that the negotiations were directed to, with a view to the doing of the future act.  Then the next point in the Full Court’s reasoning ‑ ‑ ‑

HAYNE J:   Yes, I think, Mr Corboy, it may be of assistance to us if we hear whether the Solicitor wishes to add anything further to this side of the debate.

MR CORBOY:   If your Honours please.

HAYNE J:   Solicitor?

MR MEADOWS:   In light of what has transpired, your Honours, we have no submissions to make in oral submissions.

HAYNE J:   Thank you, Mr Solicitor.  Yes, Mr Hughston.

MR HUGHSTON: Your Honours, just briefly, of course the Act does not preclude one from engaging in larger claim-wide negotiations which will include negotiations about a particular future act, but that does not absolve the negotiating parties from the obligation under section 31(1)(b) that they must negotiate with a view to obtaining the agreement of the native title holders to the doing of the particular future act.

HAYNE J:   I put to Mr Corboy what I described as a “tendentious” fashion of putting your argument, namely that you were seeking to read 31(1)(b) as “must negotiate in good faith about the terms of”.  Do you want to take me to task in respect of that tendentious point?

MR HUGHSTON:   I would never take your Honour to task.

HAYNE J:   You should.  You are invited to, Mr Hughston.

MR HUGHSTON:   If your Honour pleases.  Your Honour, we would read it as saying that there must be some negotiations of substance that are directed to the future act, the particular future act.  There has to be some discussion about that act, about the effect of the act on the native title parties, otherwise you are not negotiating in good faith to get their agreement.

The whole of Subdivision P and, indeed, Division 3 are all about protecting native title holders from having their native title rights and interests extinguished or impaired or adversely affected without there first being some proper negotiation in terms of the effect that the Act will have on their native title rights and interests.  How are they to be able to reach any agreement on whether these acts can or cannot be done without some discussion about the effect of those acts on their native title rights and interests?

Hence, I have taken your Honour already to section 31(2) which indicates that provided the negotiating parties do negotiate about the effect of the act on the native title rights and interests, then it cannot be said that they failed to negotiate in good faith.  Now, that particular subsection read in the context of this subdivision of the Act, which is all about protecting native title rights and interests, ensuring that they are properly informed and spoken to before any act is done, the emphasis throughout that Subdivision P is on the doing of the act and ensuring that they understand what is to be done.

Here, there were negotiations which never got to that stage.  There was just the one discussion, 18 days before the arbitration application was made, at which there was any discussions of this tenement or any – and then the axe fell.  I cannot put it any higher than that, your Honours, but you have to look at this particular provision in the context of what is clearly beneficial legislation with a purpose of protecting and enhancing native title rights and interests, and Subdivision P is all about ensuring that native title holders, registered native title claimants are well informed and they are well consulted before acts are done which affect their rights and interests.

Here, there was really no discussion about the possible effects which this particular future act will have on the native title rights and interests because for the convenience of the grantee party, the grantee party wants to discuss this much broader agreement or arrangement, they never get around to discussing with these native title claimants the effect of this particular mining lease on their registered rights and interests.

There is a sense of disquiet about that, your Honour, that that could not have been the type of negotiation which was intended by the Parliament. Again, if you look at section 39 of the Native Title Act, section 39 sets out

the matters which the arbitral body must have regard to if, in making a determination as to whether one of these future acts can proceed where agreement has not been reached, and you will see right from the start the very things that the arbitral body must have concerns about, the very first one is the effect of the future act on “the enjoyment” by the native title holders or the registered claimants of their registered “rights and interests”.

That is the very first thing that the arbitral body must consider.  In this particular negotiation it was not considered, it was not discussed at all.  That cannot have been the intention of this legislature, and to read the section literally in the way my learned friends are reading it is coming up with an injustice that was not intended by this Act and one might say it is coming up with an absurdity because you can have native title parties, registered claimants in all good faith saying, “Yes, we will talk about this much larger thing if that is what you want us to do”, and then after six months the axe falls.  That cannot have been the intention of Parliament.  If your Honours please.

HAYNE J:   Yes, thank you, Mr Hughston. 

There is no reason to doubt the correctness of the conclusions reached by the Full Court of the Federal Court of Australia in this matter.

Special leave to appeal is refused.

AT 1.33 PM THE MATTER WAS CONCLUDED