D'Arcy v Myriad Genetics Inc & Anor

[2015] HCATrans 12

[2015] HCATrans 012

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S251 of 2014

B e t w e e n -

YVONNE D’ARCY

Applicant

and

MYRIAD GENETICS INC

First Respondent

GENETIC TECHNOLOGIES LIMITED ABN 17 009 212 328

Second Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 2015, AT 9.31 AM

Copyright in the High Court of Australia

MR D.K. CATTERNS, QC:  May it please the Court, I appear with my learned friend, MR P.K. CASHMAN for the applicant.  (instructed by Maurice Blackburn Cashman)

MR D. SHAVIN, QC:  May it please the Court, I appear with my learned friend, MS C.L. WELSH for the first respondent.  (instructed by Jones Day)

FRENCH CJ:   Yes, Mr Catterns.

MR CATTERNS:   May it please the Court.  Your Honours, our submission is that the normative principle is that a naturally occurring human gene – or a sequence of natural DNA – is not a patentable invention.  It is not within the broad concept of “manner of manufacture” that was explained and developed in the NRDC Case.  We submit it is hard to imagine a more important question in patent law. 

Your Honours, the case largely turned on the question whether – or the fact that the claim is to the isolated gene or parts of it that we all agree can be as short as 15 nucleotides long, coding for five amino acids.  Your Honours, our submission is that the isolated DNA – or it could be RNA – of claims 1 to 3 is, in every relevant sense, identical.  Your Honours, what is relevant is that the claim sequences of nucleic acid code for the same natural polypeptide.  It is the mutated polypeptide that possesses one of the various mutations that we see, for example, in table 12 where a single change in the code leads either to a stop or the wrong amino acid with potentially disastrous results.

FRENCH CJ:   Is the artificiality of the state of affairs said to be the isolation of the exons and the detachment of the covalent bonds?

MR CATTERNS:   Your Honour, the Full Court placed a lot of emphasis on the covalent bonds upholding a ‑ ‑ ‑

FRENCH CJ:   They are just an attraction.  They are not a thing.

MR CATTERNS:   Well, exactly, your Honour.  They might be – let us agree you have to, so to speak, sniff it out in the test tube in a line of DNA that may be dozens or hundreds of nucleotides long.  There will be a break in the covalent bonds where they are separated from the sugar or the phosphate at either end.  But the 15 that would constitute an infringement can well be in the middle of that and that is why his Honour, Justice Nicholas in his Honour’s reasons at paragraphs 105 and 106, put aside this as being a relevant consideration.  The Full Court – as your Honours can see at the end of their reasons, their Honours’ reasons ‑ ‑ ‑

FRENCH CJ:   Page?

MR CATTERNS:   Pardon me, your Honour, I am sorry, at page 108 and following, particularly at paragraph 213 – uphold a notice of contention.  Our learned friends’ notice of contention said that the isolated nucleic acids of the claim were chemically, structurally and functionally different.  Chemically relates to covalent bonds which we respectfully submit is not a relevant factor. 

As your Honours know, the Supreme Court – the US Supreme Court in the corresponding case said – and we would just adopt this, your Honours – Myriad’s claims are simply not expressed in terms of chemical composition nor do they rely in any way on the chemical changes that result from the isolation of the DNA.  I think – although the Full Court does stress the chemical changes - and we see that also, your Honours, in the paragraphs on page 109.  For example at 215 their Honours say in the last sentence:

It is the chemical changes in the isolated nucleic acid which are of critical importance, as this is what distinguishes the product as artificial and economically useful.

Their Honours also, in 212 – remembering that our friends’ contention was chemically, structurally and functionally different – their Honours there refer, in the middle of 212, to:

There are structural differences but, more importantly, there are functional differences –

Your Honours, the structural differences are, for example, that the DNA is not wrapped around the histones in the cell and associated with the other aspects of cell machinery.  But the structural sameness that we submit is crucial is that it is the same sequence of nucleotides – G, A, T, C, et cetera, repeating – that crucially, in their little groups of three, as your Honours know of the codons – code for the right or the wrong amino acid.  So, your Honours, that is the structural similarity and the Full Court erred in focusing on the structural dissimilarity.

By function, your Honours, in terms of isolation, their Honours say more importantly there is that functional difference.  Your Honours, we respectfully submit that reflects a major error because their Honours are there looking at the function of making proteins.  We all readily agree that the isolated DNA is not making proteins because it is not in a cell with all the other – the RNA and the ribosomes, et cetera, that it needs.  But, your Honours, it possesses the capability – in terms of the definition of “encode”, it codes for but the crucial similarity with nature is it possesses the same code.

Their Honours quote that – the definitions, your Honours – in paragraph 84 of their reasons at page 77.  The two definitions are – first noticing “isolated”, it includes physically isolated from a human but also chemically synthesised DNA.  There was undisputed evidence about how you can synthesise DNA nowadays and at the priority date.  But “encode”:

A polynucleotide is said to “encode” a polypeptide –

There is no definition of “coding for” – we submit it means the same thing -

if, in its native state or when manipulated by methods well known to those skilled in the art, it can be transcribed –

So, in other words, it is not saying it is in its native state and producing polypeptides, it is referring there to a capacity.  Your Honours, we respectfully submit that is at the heart of the Court’s errors.  Your Honours, we can see that again at paragraph 210, page 107.  At the bottom of 210 their Honours say:

There are a number of features of the subject matter of the claims:

·It is to a compound; a nucleic acid.  It is not a claim to information.

But crucially, your Honours:

·It is to the isolated nucleic acid, i.e. a nucleic acid taken out of the genome and removed from the cell.  Isolated nucleic acid cannot be the subject of cellular processes –

We accept that, although you can do things with it in – you can synthesise proteins from it in vitro:

and translation as can its naturally occurring counterpart; it has been removed from the cellular environment and thus from the natural cellular processes –

Your Honours, we respectfully submit what their Honours are there referring to is a disability possessed by the isolated gene.  That is not what is interesting.  That is not the importance of it.  That is not the economic utility of it, that it is incapable of making proteins.  The economic utility is what we see in paragraph 8 of their Honours’ reasons, at the very beginning, your Honours, on page 62 where their Honours in their introductory section are referring to the work that was done to get a sequence.  May I skip the cDNA and just mention that for a second:

that bespeaks susceptibility to cancer, and so to [bring about] a useful effect, being a state of knowledge for the person upon which to contemplate, or assess, treatment.

That is the utility.  You are able to look at, by various technical means, the isolated sequence of nucleic acids.  Sorry, I say it is a nucleic acid – sequence of nucleotides – and perceive whether or not the man or woman – usually a woman – possesses the gene conferring the mutated gene which leads to a mutated protein which is a tumour‑suppressive protein.   

BELL J:   Coming back to the point respecting functional difference, this is your contention in your reply at 15, what is essential is that they are coding for the same polypeptide?

MR CATTERNS:   Yes, your Honour.  Precisely, your Honour. 

BELL J:   Thank you.

MR CATTERNS:   So at the correct level of analysis of the claim, it is identical to the natural gene.  Your Honours, that is where there is a legal question further because their Honours say, at page 109 - having put aside the US Supreme Court decision at 215 by a different view of the reasoning in Chakrabarty - that the emphasis on Chakrabarty is misplaced – the emphasis on similarity is misplaced.

Your Honours, Chakrabarty was a genetically engineered bacterium.  It had a different genome.  It was a genuinely artificial product, which is the distinction here.  That is why the Supreme Court in the US saw a difference from Chakrabarty and said that this case fell on the non‑patentable side of the line.  But, your Honours, at 217, their Honours prefer the reasoning of the Court of Appeals for the Federal Circuit. 

Just on cDNA, your Honours, we do not need to argue that cDNA is not patentable.  It fits within the claims.  We accept that it is artificial in a different sense, but the point is non‑cDNA sequences fit within the claim isolated from a person’s blood for the purpose of testing and you find out that you have infringed the patent when you find out that they possess the mutation.  So, your Honours, cDNA is a bit of a red herring.  But, your Honours, their Honours say:

In any event, that exclusion –

that is the exclusion of products of nature -

is not in accordance with the principles of patent law in Australia and has been specifically rejected as a reason for exclusion in NRDC. 

We respectfully submit that misunderstands what happened in NRDC.  Your Honours, we can see the step in the reasoning without bothering to hand your Honours - or troubling your Honours by handing your Honours the decision.  At page 83, in paragraph 112, there is clearly a distinction.  First of all, we see the House of Lords mentions it in the Kirin‑Amgen Case.  In Kirin‑Amgen Case, table 6 was the DNA of a gene.  But Lord Hoffmann says that is not patentable.  What is patentable is a practical process and his Lordship draws the distinction between a discovery of one of nature’s laws – may I add or a product of nature and the application of that discovery. 

There is a short sentence about that in the Ramset Case, as their Honours rightly say.  But, your Honours, in the NRDC Case, the High Court dealt with three arguments by the Commissioner.  At the beginning of their Honours’ reasons, their Honours say there are two types of things that are not patentable.  One is that it does not come within the concept of a manufacture – or a “manner of manufacture”.  That is what we are dealing with here. 

The second is the so‑called microcell argument – mere new use of an old thing.  In the context of dealing with the Commissioner’s microcell argument, the Court quoted Justice Frankfurter’s remarks that we see at the top of page 84 about the utility of “the work of nature” and the “laws of nature” in deciding whether this is a mere – in the second dot, line 10 – in deciding whether this is a mere new use of an old thing.  It was in that context that the Court said that is not very helpful in deciding whether – because everything, in the end, is a result of natural processes.

FRENCH CJ:   Is the essential mechanism which yields what is covered by the first claim the reproduction by a process which is well‑known of an element of the naturally occurring DNA which, in terms of the claim, discloses the mutations or polymorphisms which indicates susceptibility to cancer?

MR CATTERNS:   Yes, your Honour.

FRENCH CJ:   It is the element reproduced from the naturally occurring DNA by that process which is the product which is the subject of the claim. 

MR CATTERNS:   Yes, your Honour, it is.

FRENCH CJ:   I am not oversimplifying it, am I?

MR CATTERNS:   No you are not, your Honour.  That is what it is and its utility is that it possesses precisely the same code – the information, if I can call it that – as the gene does in nature.

FRENCH CJ:   Well, I suppose you can apply the process to a patient’s DNA and you might extract the relevant sequence and, in one case, the sequence will disclose the mutations or polymorphisms ‑ ‑ ‑

MR CATTERNS:   Yes.

FRENCH CJ:    ‑ ‑ ‑and the patient is thereby susceptible and in another case the sequence, that which is produced, will not disclose those and the patient is, as it were, in the clear.

MR CATTERNS:   Yes, your Honour.  Precisely, your Honour.

BELL J:   And you will not know whether there is an infringement until you have carried out the process.

MR CATTERNS:   Exactly, your Honour.  Your Honour, it was – as his Honour the Chief Justice points out - common ground that it was a well‑known process.  You physically break them up ‑ ‑ ‑

FRENCH CJ:   That is not patentable, though, at this stage.

MR CATTERNS:   There is not even a description of how to do it in the patent.  It rightly takes it for granted.

FRENCH CJ:   I imagine there might be more than one way of giving rise to the sequence.

MR CATTERNS:   Yes, your Honour, including for purposes of later claims which we make a submission about.  For the purposes of later claims, you can make the sequences synthetically and they will match the claim sequences of claim 1.  So, your Honours, we respectfully submit that the court has erred in holding that there is no exception to patentability from something that is not relevantly different from what occurs in nature.  It is not exactly a question of construction.  It is a question of approaching the claim at the right level of discourse.

So, we respectfully submit that the case arises very clearly here.  There is a powerful decision of the US Supreme Court with reasoning that is entirely apposite here.  The US section, of course, is expressed differently

from ours but it has achieved a process of development very similar to ours – to the method set out in NRDC.  It is clear when our Act was enacted – and since – that the legislature has left to the courts the task of developing the concept of manner and manufacture in light of the famous decision in NRDC. 

As a matter of interest, New Zealand has amended its Patent Act in 2013 and they still cleave to section 6 of the Statute of Monopolies and it is very clear that their court follows our NRDC Case in developing the concept.  So, your Honours, we respectfully submit that the Full Court’s focus on chemical, structural and functional differences in the way I have mentioned has really overlooked the crucial similarity between the claim and the nature – the claim and the gene as it appears in nature – namely, that it codes for it.  It contains the same information.  May it please the Court.

FRENCH CJ:   Thank you.  Yes, Mr Shavin.

MR SHAVIN:  If the Court pleases.  This case, in our respectful submission is not about ownership of a person’s genes.  It relates only to the patentability of a chemical compound, isolated nucleic acid.  There is no element, in our respectful submission, in this patent that takes it outside the context of NRDC which, of course, was affirmed by this Court in Sanofi only 13 months ago. 

The product was properly identified by the Full Court, which was an enlarged Bench of five judges which was a unanimous decision, consistent with the decision below, that this is an artificially created state of affairs in the context of the passage of NRDC with which this Court is undoubtedly familiar at page 277.  If the Court wants NRDC, we have bundles here.

In that, the court dealt with a method and in looking at the method said because the method results in an artificially created state of affairs, the artificially created state of affairs is the product as long as it is of economic utility.  In other words, if you have a vendible product, which was the evolution of a manner of manufacture, you find the vendible product in the artificially created state of affairs.

Our friends, with the greatest of respect, oversimplify what is happening when you isolate the nucleic acid because, of course, the claim encompasses fragments and segments, not necessarily the whole thing.  The evidence was clear and the Full Court articulated in some detail that what happens within the cell is very different to that which occurs when you isolate it.  The cell has not just got a unique set of nucleotides which uniquely generate a particular polypeptide. 

At the trial and the trial judgment we talked about the operation of the committee, that is, when, in fact, within the cell everything loops around the histones, the way in which the processes – the intracellular processes – operate is dictated by a lot of influences at different stages of the gene.  This is dealt with by the Full Court.

FRENCH CJ:   Well, you pull out a string of nucleotides and you look at it and you say is there a polymorphism or mutation which predisposes to a particular cancer, do you not?

MR SHAVIN:   But what you are doing when you pull it out is you are creating something quite artificial.

FRENCH CJ:   Well, you are pulling out something which was there before but ‑ ‑ ‑

MR SHAVIN:   But not in that sense.

FRENCH CJ:   ‑ ‑ ‑ you are snipping off the covalent bonds, leaving behind the introns.

MR SHAVIN:   If only it was so simple, your Honour.  Your Honour, at one level ‑ ‑ ‑

FRENCH CJ:   Well, I am wondering how much more complicated it is.

MR SHAVIN:   Can I take your Honour to paragraph 176 of the Full Court?

FRENCH CJ:   Yes.

MR SHAVIN:   Page 100 of the application book.

FRENCH CJ:   Yes.

MR SHAVIN:  

The evidence is that in the cell, the genome beyond the actual BRCA1 gene is involved and controls the expression of proteins.  Transcription and translation do not have an obvious or single outcome.  The evidence is that the regulatory mechanisms and the environment of a cell can change the code of a set of nucleotides.  Within the cell, the BRCA1 gene may result in the production of a number of different RNA or protein molecules.  Isolated DNA cannot code, in the sense of being operated on by ribosomes to produce a protein or polypeptide, this being a function that occurs naturally within the cell.  Isolated DNA cannot itself produce a polypeptide.  In that sense it is inert, although it is capable of being manipulated to produce a protein but in a different way, by a different process ‑ ‑ ‑

BELL J:   As I understand it – I am sorry, Mr Shavin.

MR SHAVIN:   Of course, your Honour.

BELL J:   But, as I understand it, Mr Catterns does not take any issue with the science in that sense.  But the circumstance that the isolated nucleic acid cannot produce the polypeptide in his submission is neither here nor there.  The point is the economic value is to the same genetic information as occurs in nature.

MR SHAVIN:   Well, the economic value is in part in being able to identify whole or fragments.  But what, with respect, our friend is seductively inviting the Court to do is to compare what is claimed with what is in nature.  That is the US test.  That is because in the United States the way in which the Court has approached USC 35 has been to say there is a “laws of nature” exception and so we look at whether this is a product of nature. 

Thus, when one looks at the United States Supreme Court decision, what one finds is a conclusion that the corresponding claims were not patentable because they fall within the “product of nature” exclusion.  It is that exclusion which requires the court in the United States to contrast the claim with nature.  It is that exclusion which, in our respectful submission, this Court eschewed at page 263 of NRDC.

BELL J:   Indeed.  Here, the issue is with respect to whether the product is relevantly an artificial state of affairs and the dispute between you is as to whether the information – the subject, for example, of claim 1 – is artificial in what the applicant describes as the required sense.  That is the dispute, is it not?

MR SHAVIN:   It is.  But then one might ask oneself where that logic takes you.  What happens when you have an antibacterial or an antiviral or any other pharmaceutical compound?  All of them gain their economic value by something that has come out of nature as a product of nature where the value is that which has been found in nature and applied.  In our respectful submission, it was for that reason that this Court in NRDC adopted Justice Frankfurter’s dissent in Funk and said it is inappropriate to have a “laws of nature” exception. 

So that what one looks at is not a product and compare it and contrast it with nature for the purpose of determining whether it falls within a “laws of nature” exception but, rather, you look at the product and ask the NRDC question – is the product artificial?  It has a different chemical composition – it is structurally different.  It is functionally different.  On any view it is functionally different.  It can do things which you cannot do intracellularly.  It cannot do any of the things that can happen intracellularly. 

FRENCH CJ:   The characterisation of product runs the risk of eliding process and product, does it not?  This is a way of examining a particular sequence of nucleotides which may tell you whether or not the person is susceptible to cancer.

MR SHAVIN:   Yes.  But remembering, of course ‑ ‑ ‑

FRENCH CJ:   I am just looking at this from the point of view of the importance of the question.

MR SHAVIN:   Of course.  Yes, if your Honour please.  What our friends are seeking to do, in our respectful submission, is to get this Court to move back from its decision in Sanofi v Apotex where the arguments were very similar in the way in which they were run in this Court and below.  By saying, in this Court in Sanofi, when the Court looked at methods of medical treatment the Court considered NRDC – affirmed and followed NRDC and your Honour the Chief Justice reminded us of the processes by which the common law develops and then decided that the question to ask is, is there a reason for excluding methods of medical treatment from the principles?  This Court said no, just as Parliament has said no.  As the Full Court noted, there was an ALRC recommendation that there be no exclusion.

FRENCH CJ:   There are all kinds of debates swirling around the significance to be given to legislative inaction, I think.

MR SHAVIN:   Although it was a positive inaction, if I can use that contradiction in terms.

FRENCH CJ:   Yes, well ‑ ‑ ‑

MR SHAVIN:   Well, one might look round Canberra.  But, certainly, what the government did was positively, that is to say affirmatively accept a recommendation to do nothing.  But it did not ignore the question as to whether it should make exclusions because it has amended section 18 with raising of the bar in subsections (2) to (4) to put a series of exclusions.

So the Parliament positively turned its mind to the question, made some exclusions and accepted a recommendation of the AIRC not to make this excision.  Thus, this Court would be saying, well, with this particular product where there can be no doubt that on its face this product is artificial – and that, at a level, is accepted by our friends – we will, nevertheless, look underneath this product and say we can look at a different level of this product and say that it is part of nature. 

For that reason – though we do not accept in Australia that there is a “laws of nature” exception, we are going to turn our mind in this case and say, well, we will characterise the artificial product differently so we avoid the consequence of conflict with NRDC.  In our respectful submission, that is a step that the common law does not permit us to take.

FRENCH CJ:   If I find a means of diagnosing, let us say, some sort of tree disease which you cannot see by external inspection by snipping off a leaf and then looking at the leaf, is the leaf a product?

MR SHAVIN:   No, but the leaf is not the same as isolating the DNA.  With the leaf you simply have physically snipped something.  As your Honour will know, if you took a magic microscope, the magic microscope has got ‑ ‑ ‑

FRENCH CJ:   Yes, I can see that got a bit of a run.

MR SHAVIN:   ‑ ‑ ‑ some currency in the federal circuit.  If you took a magic microscope you are not going to see this sequence because the way in which the cell is structured is you will not find this group of nucleotides in a nice little sequence where you snip at one end and the other and pluck it out.  You will find a whole raft of different things from which you isolate.  Our friends say, yes, the process of isolation is well known but, of course, the Court will recall that there has been no challenge to this patent on ground of lack of an inventive step.  There has been no challenge to this patent on the grounds of novelty or breach of section 40.  The only challenge has been on the basis that it is not a manner of manufacture.

So, one cannot assume that the product claimed is obvious because that is not part of the challenge that has been made.  The question is the conceptual question – is it patentable subject matter?  Thus, our friends have to say to the Court, although it is artificial because it is not like snipping a leaf off a tree, it is going inside the cell, identifying and unravelling things and finding them to be useful but producing something which is functionally and structurally quite different to that which was in the cell – save in one particular respect, possibly – and I will come back to the “possibly” – that that somehow takes it outside NRDC. 

“Possibly” is this.  Just because you have a fragment of nucleotides does not mean that in fact you have something that will code for the same protein because what we find in paragraph 45 of the Full Court judgment, for example, is setting up the table – the codon table – with which the Court will, no doubt, be familiar where you have groups of three nucleotides each of which equate to an amino acid, but you have then a reading frame.

So that when you start to read – for the processes of transcription, translation – where the reading frame starts is critical to what comes out the other end and the Full Court dealt with this at paragraph 194 on page 104.  The Court said – this is in the middle of the paragraph just below line 10:

To identify the invention as lying in the concept of information said to be embodied in a sequence of nucleotides ignores the language of the claim.  The genetic code is not functionally a static sequence of nucleotides.  It is a template for dynamic processes that result in the production of the polypeptide.  The evidence is that the question of what polypeptides would be produced in the cell and in what quantity depends upon more than the sequence in which particular nucleotide bases are arranged.

So, simply having a line of nucleotide bases does not tell you what polypeptide you get out the other end.  The claim, of course – in the claim language which has been set out in the judgments – is an isolated nucleic acid for a mutant or polymorphic BRCA1 polypeptide, said nucleic acid containing in comparison to the sequence set forth one or more polymorphisms, but it does not mean that it has to be the whole of the code.  It does not need to be the whole of the gene.  You can have a fragment and the fragment can be compared and the fragment will not code for a specific polypeptide but it would code for intracellularly ‑ ‑ ‑

FRENCH CJ:   I do not think there is any difficulty with that proposition.

MR SHAVIN:   Thus it is that it is perhaps, in our respectful submission, an oversimplification to say “I have clipped at each end the leaf off the tree and I can look at it” or “I have clipped a sequence of nucleotide bases and I know that is what is going to code for the same thing that is in the cell”.  Rather, I am clipping something, I am comparing it, but the only reason I can use it is because of its difference from that which is within the cell.

BELL J:   The reverse proposition that is put against you is that claim 1 is for an isolated nucleic acid coding for part or whole of the polypeptide which are the natural gene codes. 

MR SHAVIN:   Yes, but then what you are ending up with is not a gene.  Yes, you end up with something from nature, at one level.  It has an informational level.  But so does any pharmaceutical. 

BELL J:   But the utility lies in the coding for the polypeptide having the same characteristics as the natural.

MR SHAVIN:   The potential to code for.  It certainly cannot itself, even if manipulated ‑ ‑ ‑

BELL J:   Yes.

MR SHAVIN:   ‑ ‑ ‑ because if it is only a segment it will not give you the same polypeptide.

BELL J:   Yes.

MR SHAVIN:   Thus it is that what you have in the claim is something quite different to the cell.  Yes, it has a relationship to it but can you deny that it is an artificially created state of affairs when, as the Full Court says, it is structurally different, it is functionally different, it is chemically different.  It might have things in common but it cannot be said to be natural.  If one says one has to abstract, then where do you stop?  The US Supreme Court based its decision exclusively on the “laws of nature” exception.  That is why they compared it with nature.  But that exception, in our respectful submission, is not open to this Court.

Now, we have not gone into the question of infringement because it is a hypothetical question.  There are all sorts of issues that could arise like section 119C – who knows?  It is not a justiciable issue here. In our respectful submission, the question asked by this Court in NRDC, is it proper subject matter for the grant of letters patent, is the only question.  That is answered by asking, is it an artificially created state of affairs of economic utility?  In our respectful submission, it cannot at any relevant level be said to be natural.  It is inherently artificial.  To try and say it is natural is to look below it and say, well, let us compare it to nature and that is exactly what this Court in Sanofi affirmed – this Court in the NRDC Case – as not forming part of our law.  May it please the Court.

FRENCH CJ:   Thank you, Mr Shavin.  There will be a grant of special leave in this matter.  The estimate will be one to two days.  Mr Shavin?

MR SHAVIN:   Yes, if your Honour please.  There has been – although our friends asked for costs – there has been an agreement between the parties that there will be no costs.  If the Court please.

FRENCH CJ:   Yes, all right.  Thank you.  We are looking to a listing in the April sittings and there is a timetable, I think, which meets that.  Have you seen the timetable?

MR SHAVIN:   No, I have not, if the Court pleases.

FRENCH CJ:   All right.  That will be made available to you.

MR SHAVIN:   Yes, thank you, your Honour.  May it please the Court.

FRENCH CJ:   All right, thank you.

AT 10.09 AM THE MATTER WAS CONCLUDED