Cross Country Realty Pty Ltd v Peebles

[2007] HCATrans 322

[2007] HCATrans 322

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B8 of 2007

B e t w e e n -

CROSS COUNTRY REALTY PTY LTD

Applicant

and

DAVID LINDSAY PEEBLES

Respondent

Office of the Registry
  Brisbane  No B9 of 2007

B e t w e e n -

KELLIE LEE-ANN CROSS

Applicant

and

DAVID LINDSAY PEEBLES

Respondent

Office of the Registry
  Brisbane  No B10 of 2007

B e t w e e n -

RONALD MALCOLM CROSS

Applicant

and

DAVID LINDSAY PEEBLES

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 21 JUNE 2007, AT 10.28 AM

Copyright in the High Court of Australia

__________________

MR M.J. BYRNE, QC:   If the Court please, I appear for the applicants.  (instructed by Ryan and Bosscher)

MR J.A. LOGAN, SC:   If the Court pleases, I appear with my learned friend, MS K.A. MELLIFONT, for the respondents.  (instructed by Crown Solicitor for the State of Queensland)

GLEESON CJ:   Yes, Mr Byrne.  These three all stand or fall together, do they, Mr Byrne?

MR BYRNE:   They do indeed, your Honour.  An extension of time is necessary in this matter.

GLEESON CJ:   Is that opposed, Mr Logan?

MR LOGAN:   No, it is not.

GLEESON CJ:   Yes, you have that.

MR BYRNE:   Your Honours, apropos of that, the ability to make time stand still has been a long held ambition of mankind.  The question raised by these applications is whether prosecutors under statutory enactments have, in a legal sense, achieved that dream.

GLEESON CJ:   For two years?

MR BYRNE:   Yes.  Here the relevant temporal restraint upon the bringing of prosecutions was six months – within six months of the commission of the offence coming to the knowledge of the prosecutor.

HAYNE J:   Is that right?  It is within six months or two years, is it not?

MR BYRNE:   Yes.

HAYNE J:   And there is an outer limit of two?

MR BYRNE:   That is so.  The actual provision is ‑ ‑ ‑

GLEESON CJ:   Where can we most conveniently see that, Mr Byrne?

CALLINAN J:   Page 60 is the provision, is it not, set out?

MR BYRNE:   Page 126 of the application book refers to my outline and there is set out section 589.

GLEESON CJ:   Thank you.

MR BYRNE:   The time limit is “1 year”:

within the later of the following—

(a)      1 year after the offence is committed;

(b)      6 months after the commission of the offence comes to the complaint’s knowledge, but within 2 years after the commission of the offence.

GLEESON CJ:   Was that all in paragraph 589 when it was originally enacted?

MR BYRNE:   I am not sure, to answer your Honour the Chief Justice.  I believe provisions of this kind are in statutory provisions of various kinds throughout the nation.  I am not aware as to whether that was an amendment.

GLEESON CJ:   I must say, this is the first time I have come across this one.

HAYNE J:   There is a 12 month rule in Victoria.  Just 12 months, regardless of knowledge.

MR BYRNE:   I have set out on page 6 of the outline, which is page 130 in footnote 7, illustrations of legislation around the country where provisions of this type which bring in not just the 12 months but also a provision of coming to knowledge, being discovered by, et cetera and the example is from Legal Profession Act (Vic) which creates various offences. This is a common form, if I may use that term, provision throughout the country.

It is critical and this is the point of our submissions, it is critical and central both from the point of view of defendants and, indeed, for prosecutors under these enactments to have certainty as to when time commences to run in the discovery, coming to knowledge, reasonable suspicion, whatever the phraseology and gloss is put on by various courts, particularly within the Court of Appeal, Queensland.  That is a matter, we say, of general importance to the administration of justice in this area which, as we attempt to point out, is a far‑reaching area throughout the country.

What occurred factually here was that the prosecutor was part of the seizure of documents by way of compulsory process, upon which the prosecutions were ultimately based.  The documents which formed the basis of the prosecution not only would have given reasonable suspicion, would have provided discovery, would have given knowledge of the commission of the offences on the prosecution case were then apparently put in a back room and sat upon, if I may use that expression, for some nine months before they were taken out, opened up and, if I may use the term, “Eureka, we have evidence”.

CALLINAN J:   Was there any explanation for that delay?

MR BYRNE:   None, your Honour.

CALLINAN J:   Was somebody seconded to another department or anything like that?

MR BYRNE:   There were two people involved in the initial stage.  There was Mr Cushion and Mr Peebles.  They were both principal compliance officers, I believe the term was, and therefore able to bring complaints under the Justices Act.  Mr Peebles was the person who commenced the prosecution.  He spoke to witnesses, informants, he spoke to former employees.

GLEESON CJ:   You mean commenced the investigation?

MR BYRNE:   Yes, he commenced a running sheet in respect of that investigation, a complaint to ground the search warrants which were ultimately issued and were sworn by the person, Cushion.  Peebles went along with the execution, or at the execution of that warrant.  The relevant documents were seized.  They were then taken back and put away.  As your Honour Justice Callinan points out to me, there then seems to have been changes of personnel, Cushion has gone elsewhere.

CALLINAN J:   I know the section refers to the complainant, but there is a prosecuting authority, I suppose, and if you divide the labour there is a question whether that entitles you then to divide the responsibility and not identify ‑ ‑ ‑

MR BYRNE:   That, too, is an important point, because the reality is that prosecutions of this nature are, in effect, brought by prosecuting authorities.

GLEESON CJ:   Yes, but the person who is going to be sued for malicious prosecution is Mr Peebles, is it not?

MR BYRNE:   That is so, but the advice which we submit proper instruction of these provisions can do away with is the beauty of the clean…..such that someone new can always be brought in to issue the complaint, to be the nominal complainant.

GLEESON CJ:   You use the expression “nominal complainant”, but you have read the recent decision of this Court, no doubt, in relation to malicious prosecution?

MR BYRNE:   Yes.

GLEESON CJ:   And what was said in that case about the importance that attaches to making some individual responsible, even responsible to the extent of liable to pay damages for malicious prosecution.  So there is nothing merely nominal about signing a complaint.

MR BYRNE:   No, that person has to, necessarily, be the driving force and the person who ultimately claims to have the knowledge, but in the factual scenario here, Peebles, the complainant, was the original investigating officer, the person who did the initial investigations, the person who was present and who ultimately opened up the boxes nine months later and brought the complaints.

GLEESON CJ:   What is the special leave issue that arises in this case?  Is it an issue of construction of section 589 and if so what are the competing points of view about the construction of section 589?

MR BYRNE:   It is a question of construction and it is, we say, a point of general importance because of the uniformity of that provision.

GLEESON CJ:   What is the question of construction of section 589?  What is the doubt about the meaning of section 589 that we would need to resolve?

MR BYRNE:   The doubt is whether a prosecuting authority, a prosecutor, complainant, can stop time running or not commence time running by simply taking no action once the available evidence is to hand.

GLEESON CJ:   But you just relate that to the text.  What in the words of section 589 gives rise to this problem?  Is it the words, “comes to the complainant’s knowledge”?

MR BYRNE:   That is so.

GLEESON CJ:   So the question in this case was when did the commission of the offence come to – there is no doubt that the complainant was Mr Peebles, is there?

MR BYRNE:   No.

GLEESON CJ:   So the question in this case that the courts below had to resolve was, when did the commission of the offence come to the knowledge of Mr Peebles?

MR BYRNE:   That is so, and the Court of Appeal held that it only came to his knowledge once in March 2004.  He actually took the documents out of the boxes which had been seized nine months earlier and applied his mind to them.

GLEESON CJ:   I can understand that in a given case, and maybe this is one such case, there is a difficult question of fact about when the commission of an offence came to the knowledge of the complainant, but what is the question of law?

MR BYRNE:   The question of law is the approach taken by the Court of Appeal here as compared with the line of authorities dealing with similar provisions in England, which I have set out, and if I can take your Honours briefly to the interpretation of the provisions there.  If your Honours have our book of authorities, if I can take your Honours first to page 720 in the brief judgment of Lord Justice Kennedy in the case of Stoke‑On‑Trent Magistrates Court; Ex parte Leaf United Kingdom Limited [1997] EWHC Admin 984.  His Lordship in the second sentence of his judgment said:

It follows that, in any normal case, once the purchase has been made which it is envisaged will lead to a prosecution, the information should be laid within a period of one year.

We say applying that here, once the documents were obtained by compulsory process by the prosecutor, the complainant, then that is when the six months comes to run.

CALLINAN J:   Mr Byrne, if you look at paragraph [5] on page 95, Mr Cushion, who is the Principal Compliance and Enforcement Officer, seems to have had the requisite knowledge on 22 May 2003.  Do you see that?

MR BYRNE:   Yes, your Honour.

CALLINAN J:   Because then he “reasonably believed” – he did not merely say he believed, he said he “reasonably believed” that there had been a contravention, but he is not the complainant.  What do you say about that?

MR BYRNE:   That is the ‑ ‑ ‑

CALLINAN J:   I must say it seems to me to be a bit anomalous, that the principal officer has a reasonable belief of the commission of an offence – and he says he wants to get further evidence, and then somebody else swears out the complaint.

MR BYRNE:   The factual scenario is perhaps important there.  I think your Honour put it to me before.  Mr Cushion and Mr Peebles seem to be working in tandem.

CALLINAN J:   But Mr Cushion seems to have had the requisite state of mind back in June 2003.

MR BYRNE:   June 2003, and at that time ‑ ‑ ‑

CALLINAN J:   All he was looking for was further evidence then.

MR BYRNE:   Mr Peebles was the case officer at that time working with Mr Cushion.

CALLINAN J:   It seems to depend upon the accident of who ends up swearing out the complaint.

MR BYRNE:   We say that is one interpretation, but we say it was inevitable on the facts here that whatever knowledge Mr Cushion had, Mr Peebles must also have had.  He went along on the search, being aware of the warrant ‑ ‑ ‑

GLEESON CJ:   That a proposition of fact, is it not, not a proposition of law?

MR BYRNE:   Well, it is a proposition here of interpretation because the Court of Appeal disregard that and say regardless of when the documents were obtained, time only begins to run once the complainant actually gets down and examines the particular documents.  We say that is wrong, as a point of principle.  Time here should run when the evidence, at the very least should run, when the evidence upon which the prosecution is based is obtained by the complainant.

GLEESON CJ:   Your argument seems to move between propositions of fact and propositions of law, and it is not unimportant here.  Procedurally, what has gone on is that a magistrate has looked at this and decided this point in favour of your client.

MR BYRNE:   That is so.

GLEESON CJ:   Then there has been an appeal to a District Court judge, which I take it as a full appeal hearing de novo.

MR BYRNE:   Yes.

GLEESON CJ:   And the District Court judge resolves this issue in favour of the other side.  Then there is an application for leave to appeal.  There is no right of appeal.

MR BYRNE:   That is correct, your Honour.

GLEESON CJ:   There is an application for leave to appeal to the Court of Appeal and they refuse leave, in circumstances where it looks as though you are complaining that you got a raw deal on the facts.

MR BYRNE:   No, we say the facts are not in dispute here.  It is the interpretation of the law on those facts of which complaint is brought.

GLEESON CJ:   But although the law may give rise to a difficult question of fact in any given case, the legal requirement is clear, is it not?  You have to identify the claimant and you have to ask when something came to the complainant’s knowledge, which is a proposition of fact, not when it was deemed to have come to his knowledge, not when it ought to have come to his knowledge.  The question of fact raised by the statute is when did it come to his knowledge?

MR BYRNE:   But that is a question upon which there have been statements of principle made by courts.  Those principles have not, we would respectfully say, been applied here.  If I can take your Honours to examples of those at page 724 of our authorities.  This is a formulation by Justice McNeill which has been adopted in paragraph 15 and this is the point, we say, of law or of principle which is applicable here.  His Honour said:

“I think it is sufficient for the purposes of this case, to say that the word “discovery” –

and we would substitute “knowledge” –

means no more in this context than that all the facts material to found the relevant charge under the Act were disclosed to the appropriate officer.  The word “discovery” here does not import any investigation by the officer.  It is simply his knowledge, from disclosure to him in some way, of the material facts which would found the offence.”

Here, what the Court of Appeal failed to do we would say, in a legal sense, is to apply that test to where all the materials were in the possession of the complainant back in, as Justice Callinan pointed out, June 2003, but no complaint is brought until June 2004 – some 12 months – because the Court of Appeal held that time did not run until the documents were actually examined.  That is taken up also at the next page, page 726, paragraph 28, and we rely upon this – the last sentence in paragraph 28 – as a point of principle applicable here.  It is said:

It cannot have been intended by Parliament, for example, that where a prosecuting authority makes no judgment in connection with the facts as disclosed, the absence of a judgment can prevent time running.

That is why we commenced our submissions that what the prosecution has effectively done here is to achieve the dream of making time stand still by doing nothing.  That is not, we would submit, the intention of the legislature.  That theme is taken up in paragraphs 38 and 39 on page 728 – that is the judgment of Mr Justice McCombe, where his Honour said:

“I am not sure that discovery involves more than a discovery of the fact that an allegation is made that various facts are true.  I am not presently convinced that it is necessary for the prosecution actually to know the truth as best they can from their own knowledge and each of those facts.”

CALLINAN J:   Mr Byrne, the section there though which appears at 722 talks about “discovery by the prosecutor”.  I think the prosecutor is the statutory authority, is it not, it is the Borough, whereas you have a personal prosecutor or a complainant here.  Does that make a difference?

MR BYRNE:   In my submission ‑ ‑ ‑

CALLINAN J:   Is that not right?  If you look at 722 ‑ ‑ ‑

MR BYRNE:   Yes.

CALLINAN J:   It refers to the prosecutor, and the prosecutor is London Borough of Harrow, is it not?

MR BYRNE:   Yes.

CALLINAN J:   Here you have a natural person complainant.

MR BYRNE:   Yes, but we say it is not necessary – the facts here are not in dispute.  The complainant, Peebles, had possession of those documents as at June 2003.

HAYNE J:   Well, he had access.  I do not know whether he had possession of them, did he?  He had access to them.  They had been seized under warrant.

MR BYRNE:   They had been seized by warrant, he was the property officer.

CALLINAN J:   He was the principal officer, was he not?

MR BYRNE:   Yes, he was the principal officer.  He was the running sheet, he was running the investigation ‑ ‑ ‑

CALLINAN J:   He was head of the relevant government authority.

MR BYRNE:   That is so.  We say the error below is not having regard to those points which we say are points of common sense as well as principle in the judgment of the Court of Appeal here.  In the judgment of the Court of Appeal, your Honours will see at page 96 of the application book it is said:

In the light of the undisputed evidence from Mr Peebles, which the magistrate appears to have accepted, the magistrate could not have reasonably found that Mr Peebles had reasonable grounds for believing the applicants had committed offences under the Act –

and I emphasise –

before he examined the seized boxes of documents in March 2004.

That, we would say, is in distinct contrast to the line of authorities in England and it is not in accordance with what the statutory or legislative intention must have been here.

GLEESON CJ:   That is what was said by Justice McMurdo to be an additional observation after she dealt with what she thought was sufficient to dispose of the applicants’ contentions.  In paragraph [10] she went on to say “I want to say something further about it”.

MR BYRNE:   The paragraph [10] above, we say, with respect, is also an error.  In the last sentence of that paragraph her Honour says:

The knowledge referred to in s 589(1)(b) requires a higher degree of certainty than the reasonable grounds for suspicion required for the issue of a search warrant under s 550(1) of the Act.  It involves the complainant having knowledge of facts sufficient to establish a person’s contravention of the Act.

What we say the point of principle is that it is obtaining the materials at which time begins to run.  It is not a question of being able to sit on those

materials and do nothing with them at the whim of the complainant prosecutor and time is then able to be commenced at the whim of that person by opening up the documents and saying there is a case.

GLEESON CJ:   What do you say about the sentence in Justice McMurdo’s reasoning at line 28 on this page, page 60, beginning with the words “That interpretation”?

MR BYRNE:   Again, it is not to the point, we say, that there is an outer temporal limit of two years.  The legislature has provided that it is the – that comes within the framework or parameters of the six-month time limit.  It is an extension, or the ability to extend time outside the normal 12 months to take it out to two years, but that is on the proviso that that two years is shortened by the six months of coming to knowledge.

GLEESON CJ:   Yes, we are dealing with the difference between one year and two years.

MR BYRNE:   That is so.

GLEESON CJ:   And that is the context in which your complaints about the injustice of this situation are to be evaluated.

MR BYRNE:   Yes, your Honour.

GLEESON CJ:   Yes, thank you, Mr Byrne.  Yes, Mr Logan.

MR LOGAN:   If the Court pleases.  It is not a matter of time standing still.  It is a matter of when time starts.  The case is one which ‑ ‑ ‑

CALLINAN J:   Why does it not start when Mr Cushion, who is apparently a senior officer but under Mr Peebles, reasonably believes that the applicants had contravened the Act?  Why does it not start then?

MR LOGAN:   Mr Cushion is the complainant – in the language of the statute is the complainant, not prosecuting authority.

CALLINAN J:   Yes, but ‑ ‑ ‑

MR LOGAN:   To use that term obscures rather than adheres to.

CALLINAN J:   But why should not his knowledge, as a senior and responsible official working under Mr Peebles, why should that also be Mr Peebles’ knowledge?  I am not suggesting vicarious responsibility, but you have a government department here and Mr Peebles does not go out and seize the documents himself.

MR LOGAN:   Yes.  There are two answers for that.  Firstly, the language of the statute is “complainant”, but putting that to one side and accepting for the moment that there is some notion of it is on behalf of the State, as it were.  That was addressed by Sir Charles Lilley in the first of a line of authorities from Queensland, in the Bernecker Case, where his Honour adverted to there might be 50 people who have some sort of knowledge and do not do their duty ‑ ‑ ‑

CALLINAN J:   But that is not this case.

MR LOGAN:   It is, with respect.  If Mr Cushion, for example, had knowledge ‑ ‑ ‑

CALLINAN J:   He had more than knowledge, he had a belief.

MR LOGAN:   He did.

CALLINAN J:   He had a reasonable belief, Mr Logan.

MR LOGAN:   Indeed, he may well have.  But he is not the complainant.  If, for example, there is not ‑ ‑ ‑

CALLINAN J:   Could he have been a complainant?

MR LOGAN:   Yes.

CALLINAN J:   Was there anything to prevent him from swearing out a complaint?  He swore the material to get the search warrant, did he not?  He did not need – Mr Peebles was not required for that.

MR LOGAN:   It looks – that is so.  There is a construction here though that is conducive to official corruption in the sense that if one man seized with knowledge chooses for whatever reason not to do his duty and another man who takes that knowledge because he does his own investigation of the material seized and comes to a settled and honourable view that this is a case that should be prosecuted and becomes the complainant, then the knowledge runs from when his knowledge ‑ ‑ ‑

CALLINAN J:   Yes, but that is not this case.  Mr Cushion has had all the necessary knowledge and he formed a reasonable belief.

MR LOGAN:   Quite.  But one is concerned here, with respect, in terms of special leave, in our submission, where is the principle?  The principle, in our submission, is plain enough from the statute itself.

CALLINAN J:   Well, the principle might be that a government authority ought not to be allowed to escape the provisions of the Act simply by dividing responsibility.  That may be a principle, Mr Logan.

MR LOGAN:   In singular cases - of which this is not one, on the facts – it is not impossible to conceive of a scenario where there could be ‑ ‑ ‑

CALLINAN J:   Well, there was no explanation, was there, as to ‑ ‑ ‑

MR LOGAN:   It was not explored.  It is not impossible to conceive of a situation where that type of behaviour could amount to an endeavour to pervert a course of justice, but that is not this case.  This case is just a matter of fact.

CALLINAN J:   I am not suggesting a perversion of the course of justice.  I am suggesting an absence of diligence or indolence and unexplained.  The Act obviously contemplates a degree of diligence, otherwise there would not be time limits.

MR LOGAN:   With respect, yes it does because it gives an outer time limit of two years so that within that time ‑ ‑ ‑

CALLINAN J:   Yes, but it is easy to think of cases in which it would not be practical to do everything that was necessary to form a reasonable belief or, to use the language of the section, to acquire the relevant knowledge.  It might take up to 21 or 22 months, there may be cases in which there needs to be the most intense of investigation.  But that is not this case.  In this case we have evidence that there was a reasonable belief in June 2003 by a responsible senior investigating officer.

MR LOGAN:   Your Honour, I cannot do anything other than make the submission that the statute means what it says in terms of “complainant”.

CALLINAN J:   Which is a very narrow and very, very technical approach, when we all know you are dealing with a government authority, a government office.

MR LOGAN:   He has that office, but in making a complaint he assumes particular responsibilities under the Justices Act, and they are personal.

CALLINAN J:   Yes, but the rules about malicious prosecution can all be accommodated within the sort of construction that I am suggesting.

MR LOGAN:   Your Honour, there is also, in our submission, in the applicants’ submissions the notion that once you seize a large body of

documents you are in some way seized with a knowledge of what is in those documents ‑ ‑ ‑

CALLINAN J:   No, that is not the evidence.  If you go to paragraph [5] on page 95 the evidence is clear, a reasonable belief that “others had contravened provisions of the Act” – the applicants – “and “that continued investigations into this matter may further reveal” – I think it should be read in view of what has gone before – “evidence of the commission of these offences”.  So they are looking for further evidence, but it is not merely a state of knowledge, they have gone beyond the state of knowledge.  They have a reasonable belief about the matter and they are looking for further evidence.

MR LOGAN:   One still has to narrow the focus.

CALLINAN J:   Your argument has to be that “complainant” means the natural person who happens to swear out the complaint and nobody else.

MR LOGAN:   Yes, and we have ‑ ‑ ‑

CALLINAN J:   It is as simple as that, and if you are not right about that as an exclusively correct proposition, then you would fail.  You have to be right about that.

MR LOGAN:   Yes, with respect.  We are content enough to rest as a matter of statutory construction.  There is nothing in this particular Act which defines “complainant”.  It incorporates by reference our Justices Act.  Now, Justices Act makes it apparent enough that a “complainant” is a natural person.  Hence the submission that when one does have an appropriate focus as a matter of construction, this is just a facts case with no question of principle involved.  I do not know that we can add anything further, if the Court pleases.

GLEESON CJ:   Thank you, Mr Logan.  Yes, Mr Byrne.

MR BYRNE:   To deal with the proposition put by your Honour Justice Callinan to my friend, can I take your Honours just briefly to page 128 of the application book, paragraph 3.3 of our outline where, again, we say is the statutory – or legislative intention:

“The setting of time limits for the prosecution of offences is designed to achieve two important consequences.  The first is to provide protection to the citizen . . . and the second is to bring about, in the authority having responsibility for the prosecution, an efficient and timely investigation of the offence.”

Now, we say, is the point of principle – or one of the points of principle here.  The other point, in answer to our friend’s submission, can I take your Honours to the judgment of – in the record book page 95.  This is in the judgment of the President of the Court of Appeal, paragraph [8].  Her Honour sets out the test formulated by Justice W.B. Campbell, as his Honour then was.

HAYNE J:   Just before you refer to the citation from Justice Campbell, do you accept that at line 42 her Honour accurately encapsulates the issue as it was presented in the court below, namely that the argument was “that the complaints were outside the time constraints . . . because time runs . . . as soon as anyone in the OFT entitled to lay the complaints” had a belief?

MR BYRNE:   The argument was run on two bases, always.  It was that basis, which is identified there, and the second basis was that the personal complainant here, that is Mr Peebles, had the requisite knowledge – and that is the relevant part of the citation there:

any person who may have been authorised under the Act to lay a complaint –

and that is Cushion and Peebles –

either had knowledge, or had, or should have had, reasonable grounds to believe, prior to August 1977, that the respondent had committed an offence.

We would say that that here captures both Peebles and Cushion.  Those are our submissions.

GLEESON CJ:   Thank you.  We will adjourn for a short time to consider the course we will take.

AT 10.58 AM THE MATTER WAS ADJOURNED

UPON RESUMING AT 11.00 AM:

GLEESON CJ:   A majority of the Court is of the view that the application should be dismissed for the following reason.  No disputed question of construction of section 589 of the relevant legislation would conveniently fall for consideration if special leave to appeal were granted in this matter. 

The litigation has proceeded in the courts below upon the footing presented by that statute, but the relevant question is whether on the facts the commission of alleged offences came to the knowledge of Mr Peebles, the person who, as appears from page 1 of the application book and elsewhere, is the complainant in the proceedings brought against the applicants.

The resolution of that factual question presents no issue suitable to a grant of special leave to appeal.  The application is dismissed.

MR LOGAN:   Costs, please?

GLEESON CJ:   With costs.  We will adjourn until 10.15 on Tuesday, 31 July in Canberra.

AT 11.01 AM THE MATTERS WERE CONCLUDED