Demydova v MIMA

[2006] HCATrans 460

[2006] HCATrans 460

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M96 of 2006

B e t w e e n -

MARYNA DEMYDOVA

Plaintiff

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Defendant

Summons for directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 AUGUST 2006, AT 2.35 PM

Copyright in the High Court of Australia

MR A. BONNICI:  If the Court pleases, I appear for the applicant.  (instructed by Belleli King & Associates)

MR R. KNOWLES:  If it please the Court, I appear for the first defendant.  (instructed by Clayton Utz)

HIS HONOUR:   Your motion, is it, Mr Knowles?

MR KNOWLES:   Yes, your Honour.  I move on the summons filed 16 August 2006.  Does your Honour have that?

HIS HONOUR:   Yes, I have that.

MR KNOWLES:   In that regard, reliance is placed upon the affidavit of Tom Mosby of the same date.  Does your Honour have that?

HIS HONOUR:   Yes.

MR KNOWLES:   For the sake of completeness, your Honour, although it is probably not strictly necessary, I also have an affidavit of service.

HIS HONOUR:  Yes.  It will not be necessary, I think.

MR KNOWLES:   If your Honour does not require it, I will not seek leave to hand it up then.

HIS HONOUR:   No.

MR KNOWLES:   Perhaps by way of introduction, your Honour, it might be of some assistance if I briefly ‑ ‑ ‑

HIS HONOUR:   Just before we go on, is there any objection to my reading Mr Mosby’s affidavit, Mr Bonnici?

MR BONNICI:   No objection at all, your Honour.

HIS HONOUR:   Yes, I will read that.  Do sit down.

MR BONNICI:   Thank you.

HIS HONOUR:   Mr Knowles, I will just read that to myself, if I may.  Can I just make sure I understand, Mr Knowles, what the position is.  The plaintiff in the proceeding sought a particular visa, a spouse visa, which was refused by a delegate; is that right?

MR KNOWLES:   Yes, your Honour, that is correct.

HIS HONOUR:   The plaintiff then applies to the Federal Magistrates Court for review of the decision of the delegate?

MR KNOWLES:   That is correct, your Honour.

HIS HONOUR:   Was it open to the plaintiff to go up through the MRT system at that point for a merits review?

MR KNOWLES:   It was open to the plaintiff to do that and in fact the plaintiff’s affidavit which was filed with the actual application to show cause sets out what occurred in relation to an attempt to file an application for review with the Migration Review Tribunal.  In particular, if I can take your Honour to paragraphs 18 to 20 of the plaintiff’s affidavit sworn on 17 July 2006.

HIS HONOUR:   All right.  There was some difficulty about payment of the fee, she sought waiver, it was not granted, fee not paid, therefore application rejected.  Is that the nub of it?

MR KNOWLES:   That is correct, your Honour, and the details are actually set out in a file note made by an officer of the Tribunal which is exhibited at exhibit MD13.

HIS HONOUR:   Yes.

MR KNOWLES:   It was after the plaintiff had gone through that process with the Tribunal that an application was made for judicial review with the Federal Magistrates Court on 13 October 2004.

HIS HONOUR:   Again, just to make sure I am following this, she applies to the MRT, she asks for fee waiver, that is refused, she is told she has to pay the fee by a date, she does not, therefore, the MRT proceedings come to a crashing halt at that point; is that right?

MR KNOWLES:   That is correct, your Honour, yes.

HIS HONOUR:   She then goes to the Federal Magistrates Court?

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:   Then am I right in understanding that in the Federal Magistrates Court, for whatever reason, she discontinues?

MR KNOWLES:   On 7 April 2005, that is correct, your Honour.

HIS HONOUR:   Yes.

MR KNOWLES:   The orders recording that discontinuance are contained at exhibit TM3 of Mr Mosby’s affidavit.

HIS HONOUR:   Yes.  Now, what follows from that?  Is that the basic chronology that I have to have on board?

MR KNOWLES:   That is, your Honour.  The next event in the chronology, your Honour, is the application to this Court on 18 July 2006.  In the application, the relief sought includes an enlargement of time but under the High Court Rules.  There is no reference there to section 486A of the Migration Act.

HIS HONOUR:   I am sorry, I slipped a cog.  Tell me again.

MR KNOWLES:   In the actual application there is no reference to section 486A.  There is, however, an application for orders providing for an extension of time within which to make the application, albeit pursuant to the High Court Rules.

HIS HONOUR:   Yes.

MR KNOWLES:   The first issue that arises in this matter, your Honour, concerns the nature of the decision, it being not a decision of an immigration tribunal but, rather, a decision of the first defendant’s delegate.  As a consequence, in my submission, it is not possible for this matter to be remitted to the Federal Magistrates Court.  I will explain why it is submitted that that is so and it may, in fact, hinge upon an issue of construction relating to section 5E, and I will come to that in a moment.

This is something that has changed since 1 December 2005 as a result of the amendments instituted by the Migration Litigation Reform Act.  Prior to that it was possible for the plaintiff to seek judicial review in relation to what was and is called a primary decision where that primary decision was affected by jurisdictional error.  In my submission, that position has now changed, at least insofar as the Federal Magistrates Court’s jurisdiction is concerned. 

Perhaps I will take your Honour through the relevant provisions.  Firstly, section 476 of the Act.  In the Migration Litigation Reform Act this is item 17.  Does your Honour have that?

HIS HONOUR:   Yes, I do.

MR KNOWLES:   Your Honour will see paragraph (2) ‑ ‑ ‑

HIS HONOUR:   “[N]o jurisdiction in relation to . . . a primary decision”.

MR KNOWLES:   Yes, paragraph (2)(a), and in subsection (4) a “primary decision” is defined to mean:

a privative clause decision or purported privative clause decision:

(a)      that is reviewable under Part 5 –

and I do not take it any further because in this case I do not think there is any issue of contention about the fact that this decision was reviewable under Part 5.

HIS HONOUR:   That is the MRT part, is it?

MR KNOWLES:   Exactly, your Honour.  Yes, that is right.

HIS HONOUR:   Yes, right.  I follow that.

MR KNOWLES:   So the next step obviously involves an assessment of what is meant by “purported privative clause decision” and that means that it is necessary to go back to section 5E, your Honour.  As Mr Horan has already indicated to your Honour, that definition includes decisions that are purportedly made under the Act but are affected by jurisdictional error.

HIS HONOUR:   Yes.

MR KNOWLES:   Now, if I can then return to section 476B and, in particular, subsection (2).  That provision provides that:

The High Court must not remit a matter, or any part of a matter, that relates to a migration decision to the Federal Magistrates Court unless that court has jurisdiction in relation to the matter, or that part of the matter, under section 476. 

On the basis of those provisions, it is submitted that in this case it is necessary for this Court to deal with the application and it cannot be remitted to the Federal Magistrates Court. 

By reason of the summons, your Honour, the first defendant submits that the application ought to be dismissed on the basis that it has been instituted out of time.  A significant period has transpired since the decision was made in May 2004.  Certainly, it is significantly longer than the 84‑day period that is stipulated in section 486A, even allowing for the transitional provisions impact whereby the plaintiff would be deemed to have received actual notice of the decision on 1 December 2005.  It is submitted that pursuant to section 486A no extension of time is possible once that 84‑day period has expired and, as has been submitted in this Court in the past, it is submitted that the time limit in that provision applies exclusively in relation to migration decisions and to that effect overrides the time limits that are otherwise found in the High Court Rules.

There has not been any assertion that section 486A is invalid or unconstitutional by the plaintiff and, in my submission, in the absence of such a challenge, the provision ought to be presumed to be valid but, in any event, even if the provision was somehow found not to be valid or it was somehow found that the High Court Rules still had some operation in relation to this case, the application to this Court which was filed on 18 July 2006 was over 20 months out of time when one has regard to the six‑month time limit that applies in relation to certiorari under the High Court Rules and it was approximately two years out of time in relation to the application for mandamus.

There is in the application, as I have already indicated to your Honour, an application for orders for an enlargement of time in which to make the application. As far as I can make out, the only basis upon which that application is made is that it is said that the plaintiff received poor advice.  In my submission, having regard to the principles that are described in the case of Re Commonwealth; Ex parte Marks, that is not such an exceptional situation that would provide for the Court to exercise its discretion to enlarge time.

HIS HONOUR:   Is it an essential step in considering what to do in this matter to determine what the time limits are, whether they are found in the Act or elsewhere?

MR KNOWLES:   In my submission, no, your Honour, because on either basis this matter is considerably out of time.  Even taking into account the time limits in the High Court Rules in relation to certiorari, this is over 20 months out of time and having regard to other circumstances in this case no enlargement of time is warranted.  I will come to those perhaps in just a moment.  So, either way, whichever time limit might apply, the application is out of time and even if the High Court Rules might apply then no enlargement of time ought to be granted.

HIS HONOUR:   Could I understand at least this about the way in which the Act is said to operate.  To that end, you may find it of assistance to have in front of you S157.

MR KNOWLES:   Yes, I have that here, your Honour.

HIS HONOUR:   There are three integers in play presently, I think.  There may well be more.  S157 reveals that an important step, perhaps the important step, in considering privative clause provisions is the resolution of the tension presented by an Act which on the one hand says a decision‑maker is bounded by limits and on the other contains a provision which says, to a greater or lesser degree, no remedy shall go for exceeding those limits.  There are, therefore, those two integers in play:  one, the statutory specification of limits bounding the decision‑maker’s task; the second integer in play is the privative clause itself.  But the third integer that now is introduced is 486A which says there are certain time limits for applying and the hypothesis for 486A, the premise for it must be that judicial review can go.  There must be a case in which judicial review is available.  How then do you reconcile those three integers?

MR KNOWLES:   I think Mr Horan drew a distinction between section 486A as it was previously found in the Act as opposed to how it is now. 

HIS HONOUR:   The problem is much more acute now.

MR KNOWLES:   In my submission, your Honour, it might be said that the problem is more acute on the basis that there is the purported privative clause decision definition within the Act but there are other differences which arguably militate against the acuteness that your Honour refers to.  They are, firstly, that, as Mr Horan has indicated, it is no longer a strict 35‑day time limit but a 28‑day time limit that can be extended for a further 56 days.  The second difference – and this is perhaps of greater significance – is that it involves actual notice rather than deemed notice.  On that basis somebody will be aware of the decision and will have a period of, at best, 84 days to do something about it.  In those circumstances, it is submitted that it does not fall foul of the comments that were made by Justice Callinan in S157.

HIS HONOUR:   But the presupposition of 486A is the presupposition that is indicated in Plaintiff S157, namely, that Parliament cannot exclude 75(v) jurisdiction.

MR KNOWLES:   No, your Honour.

HIS HONOUR:   Yet the purported privative clause decision definition seems to suggest that at least some other reconciliation needs to be achieved.  Now, I am not asking you to make submissions that would enable me to decide these issues.

MR KNOWLES:   No, I understand.

HIS HONOUR:   If the issues are alive, they are issues which I would want to send off to a Full Court.

MR KNOWLES:   I understand that, your Honour.

HIS HONOUR:   The question becomes, therefore, not how do the issues fall out, but are they alive.  If they are alive, where I will be heading is to send the parties away to work out how to get it in front of a Full Court.

MR KNOWLES:   I understand that, your Honour.

HIS HONOUR:   But why is the issue not alive in this case?

MR KNOWLES:   Well, the basis upon which it is said that it is not alive is that, whichever time limit applies, whether it be 486A or, if that were found to not have the effect that it purports to and there were other provisions governing the time limits, they would presumably be the High Court Rules, in which case it is submitted that, even having regard to the High Court Rules, the application is out of time and no enlargement of time in the circumstances of this case ought to be granted.  So whichever standard your Honour were to have regard to, it is submitted that the matter still is out of time and in the latter case ‑ ‑ ‑

HIS HONOUR:   Why would you not enlarge time in this case?  Let it be assumed that for whatever reason you got to a discretionary decision about enlargement.  Now, there is some large assumptions that underpin that.  Let us walk by them and assume that that is where you are at.  Now, why do you say you would never enlarge time?

MR KNOWLES:   Well, in this case the only reason that is put forward for the delay is that there was poor legal advice given that led to the plaintiff instituting proceedings in the Federal Magistrates Court as opposed to somewhere else.  Now, in relation to the proceedings in the Federal Magistrates Court, your Honour, those proceedings were discontinued and, as your Honour has already indicated, for reasons that are unknown, but it is clear, in my submission, that the plaintiff could have continued those proceedings and obtained the relief that is now sought in the present proceeding in relation to the delegate’s decision. 

At that time the definition of “primary decision” did not contain any reference to a purported privative clause decision but, rather, only to a privative clause decision and, as this Court held in Plaintiff S157, obviously, a privative clause decision means a decision made under the Act and if it is affected by jurisdictional error, it will not be made under the Act.  So there was the ability for the plaintiff to continue with the Federal Magistrates Court proceeding and obtain the relief there, if successful, that the plaintiff now seeks to obtain before this Court.

HIS HONOUR:   Could I please understand a little better than I do by reference to the plaintiff’s statement of grounds in her initiating process – if you could turn that up that would help.

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:   The grounds she advances are want of natural justice.  Can I just understand what is entailed in that.  She refers to MD4 and MD7.

MR KNOWLES:   Yes.

HIS HONOUR:   MD4 is a ‑ ‑ ‑

MR KNOWLES:   These were items of correspondence from her, I guess at that stage, former spouse to the Department withdrawing sponsorship of the application.

HIS HONOUR:   What is her complaint in respect of these letters that founds the natural ‑ ‑ ‑

MR KNOWLES:   Her complaint is that the letters were never disclosed to her and on that basis it is said that she was denied natural justice. 

HIS HONOUR:   Is there an answer by the Minister to that?

MR KNOWLES:   Well, the answer, your Honour, is that one needs to have regard to the actual decision of the delegate in this case and how it is framed.  The decision of the delegate really rests on the adequacy of statutory declarations obtained from two competent persons – and that is an expression in the Migration Regulations – about the existence of domestic violence.  The Migration Regulations set out a strict evidentiary procedure by which domestic violence is deemed to exist in given circumstances.  In that regard, your Honour, it is necessary for an applicant to obtain statutory declarations from two competent persons, and that includes people such as social workers ‑ ‑ ‑

HIS HONOUR:   Yes, I understand that.  Can I direct your attention to exhibit MD1, page 3.  At page 3 of that exhibit, line 4, statutory declaration from a named general practitioner.

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:   Do you have that?  Come down two paragraphs:

Dr [B] has provided an example where the sponsor drove at high speeds which distressed her.

What does the next sentence mean?

MR KNOWLES:   Yes, your Honour, I take your Honour’s point that the assessment of the evidence is that, but there has been no ground raised in this proceeding that goes to the evidence given by the two competent persons.

HIS HONOUR:   If one of them gives evidence that she is distressed, but I do not read that as meaning that she was fearful or apprehensive for her safety.

MR KNOWLES:   I understand your Honour’s point.  This is raised though in the context of very strict evidentiary provisions in the Migration Regulations and I guess what I am getting at is – I am seeking to explain to your Honour how the issue about what the former spouse might have said in correspondence is not relevant to that particular issue.

HIS HONOUR:   Can I come to taws with you, because I am perhaps being seen to dance around the point.

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:   If you pick this up and said, “Look, there is nothing in this application, there is nothing to be said for it”, the view you form about exercise of discretion is inevitably affected by that sort of view.

MR KNOWLES:   I understand, your Honour.

HIS HONOUR:   If you pick it up and wonder whether there may not be something worth investigating.  We have here someone who has, yes, she resorted to the judicial power of the Commonwealth once.  She discontinued that.  Her assertion is, right or wrong, “I got poor advice”.  Now, where are we to go in this, Mr Knowles?

MR KNOWLES:   I may not be able to take this matter any further, your Honour, but I just point out that essentially if, as I think your Honour is taking a particular view about this matter, the exercise of discretion to enlarge time would remain a live issue and therefore one could not say ‑ ‑ ‑

HIS HONOUR:   I am troubled about it.  If you can tell me why that would fall out inevitably one way or there is no doubt it should fall out one way, take the chance and tell me now.

MR KNOWLES:   The only thing I should say, your Honour, is that my submissions are predicated upon the grounds as they stand in the application that is before this Court.  I have not given fuller consideration to what grounds a plaintiff might argue beyond those that are set out in the application.

HIS HONOUR:   No, I understand that.

MR KNOWLES:   But if the Court were to take the view that having done that there might be an arguable case in relation to this matter, then that would be a matter that would be relevant to the exercise of discretion to enlarge time.  It would need to be weighed up with other matters such as the extensive delay and the explanation for the delay.  But certainly if that were the case, then my argument concerning the fact that whichever time limit applies, time would not be enlarged or the application would be out of time, my argument certainly would fall down on that basis, your Honour.  In that sense, that would mean that this matter, arguably, really does raise or bring to the fore the issue of section 486A and how it operates.

HIS HONOUR:   As I say, at least my first impression is that you cannot divorce 486A wholly from the other provisions, including the purported privative clause aspect of it.

MR KNOWLES:   That is right, your Honour.

HIS HONOUR:   I mean, yes, 486A is the first and most immediate focus.  I understand that.

MR KNOWLES:   That is so, and in relation to one of those other provisions, 5E, how that provision operates would also impact upon the definition of “primary decision” as well.  So I am mindful of that and to that extent I may not be able to take the matter any further before your Honour.

HIS HONOUR:   Yes.  Well, Mr Bonnici, what do you say I should do?  As you gather, I am troubled about some quite deep‑seated questions about construction of the Act, but I think the point about which I would most immediately need your assistance is, if this is a discretionary matter, why would I extend time for this plaintiff?

MR BONNICI:   Your Honour, the plaintiff in this case became aware of the contents of the two letters, one has to presume that as soon as she received those documents under FOI, although, as stated in her affidavit, her first language is not English, and she does not speak English very well, and she did not even know what was happening there.  When the time came that she became aware of those issues, because both letters raise criminal sanctions under the Act, because they accuse her of having come to Australia on a marriage that was false, she stands to go to gaol for two years.  Secondly, your Honour, is that this woman could not understand how or why after what she had gone through when the matter was explained to her that the legal system in this country would let her down so badly when people are talking about violence against women, which has become such an issue in our society. 

Now, when these matters came to the fore, this woman wanted redress because she had gone through that process, not the Minister, no one else.  She was placed in a position that she could not have had any knowledge of what had happened in the decision‑making process by the primary decision‑maker, and then she got those documents.  Because, in fact, if the primary decision‑maker had followed the process that was set out to the delegate, she could not have made that decision because regulation 1.23(1)(b) and (1)(c) state that if the Minister is satisfied that domestic violence – or it is called relevant domestic violence – has occurred, he has to grant the visa, but if he is not so satisfied, he must refer the matter to an independent person and the Minister becomes bound by the decision of the independent person. 

Now, nowhere in those regulations – all it was that she or the delegate was not satisfied that in fact there was relevant domestic violence there.  Now, it goes beyond that, your Honour, because this woman, according to the material, was dumped in a motel in Queensland without funds with a young child, and the husband took off.  In that first letter he makes no reference, not even in the second letter, that he dumped her and left her there without funds to nourish herself and her son, no change of clothing.  The police are called – this is a woman who have lived in a society where the police are not as respected there as they are here, your Honour.  She is taken in a police car to a women’s refuge. 

Now, your Honour, there is something very basically wrong here and if, in fact, the matter is not looked at properly as to what has occurred here on the basis of satisfaction, is something that is terribly wrong with our system.

Now, to take the matter of the Tribunal, your Honour, the application was lodged together with a fee waiver.  That made it a valid application.  I refer you to the decision of Braganza of the Full Court of the Federal Court.  The question of the fee to be paid was a secondary matter.  Now, as the matter stood, the letter of the Tribunal was sent on 29 September.  It reached the plaintiff’s then solicitor on 1 October.  On the 7th she had the money.  Of course an application at that point of time on the basis of Braganza’s Case would have succeeded.  This woman had gone to solicitors to get advice and whatever she was told to do, she did.  At the

present time this decision has not been reviewed at all by anyone.  Had it been possible, your Honour, to go to the Federal Magistrates Court, that is where she would have been now, but unfortunately she could not do that, she has to come up to this Court. 

Now, of course I agree that the time factor, if one looks at it in the cold light of day, that from the time she received the decision of the delegate, a lot of water has flowed under the bridge, but at no time did this woman acquiesce, and when she was advised to challenge it, she went ahead and challenged it, and when she was advised to withdraw, she withdrew it at her loss.  She had to pay the costs to the Minister, to the Commonwealth, which she did.  It was only at the time when one had a good look at the documents that were released that one realised what a strong case this woman has and, by the looks of things, it may just fritter away because of the fact of the amendment to the Act.

I have no doubt, your Honour, that on the basis of these facts in this case the High Court would enlarge the time because this person has done everything that she could and up to this time she has not acquiesced in the decision and the facts were never tested and the decision was never tested.  Now, I understand, your Honour, that even if one takes it from December, there were at least six or seven months but that is not as deadly, with respect, as to what has happened to her and her young son, and the rest of the material which I will not go into today in the affidavit.

Your Honour, section 486A talks about migration decisions.  I would submit, with respect, that this decision was not a migration decision.  This decision, your Honour, dealt with the issue of domestic violence and because there was that issue of domestic violence, that the regulations have looked at it or look at it as though the marriage was not terminated, because if one has a look at subclass 100 – I think it is paragraph 211(4) which says in fact – I have it here, your Honour.  I am sorry I am taking up your time, your Honour.  I had it all organised.  Sorry, your Honour, I am at a loss what happened to it.

HIS HONOUR:   Perhaps the particular detail of it does not greatly matter, Mr Bonnici.  I think that where my thinking is at the moment is I am minded to stand the matter over to a date – and we will come to discuss dates presently – with a view to the parties considering the possibility of joining in agreeing facts on which a case could be stated and question or questions reserved for the consideration of the Full Court concerning the application and operation of particularly section 486A. 

Now, if there were to be some question raised – and none has yet been raised – about validity, it would, of course, be necessary to consider the incorporation of that kind of question as well in a case stated, but at the moment I am inclined to do no more than simply adjourn the case so that the parties can give consideration to these issues.  It is only when you sit down and do the work of trying to agree the facts and the questions that would form the basis of a case stated that the problems begin to emerge.  I think that without the parties first having been explicitly given that opportunity, quite frankly, there is a risk that the problem goes off half cocked and it gets up into a Full Court with the issue not properly identified or the issue not properly arising. 

So that raises two questions, I think, immediately for counsel and those instructing them.  First, do they wish to be heard against my following that course?  Second, subject to the outcome of that, how long would be needed, because these things are not going to be properly put together in a few days? 

Now, the Court’s business will follow the following pattern.  I could give attention to it again perhaps in the week commencing 18 September, which is over three weeks away.  If I do not deal with it in the week commencing 18 September, it would have to go over to the week commencing 9 October, because we have Canberra sittings again.  Now, I would prefer, for my own part, that proper time is taken dealing with it.

MR BONNICI:   Your Honour, 9 October would be a preferable date.

HIS HONOUR:   What I would do at the moment is indicate that it would be fixed at a date convenient to counsel and to the Court during the period commencing 9 October to 20 October.  There is a fortnight window there and between us if we cannot find a date that will accommodate us all, we are in real difficulty.  Mr Knowles, I have not heard from you about whether you want to be heard against my following that course.

MR KNOWLES:   Your Honour, I do not have anything to add to what I have already said in relation to the matter.

HIS HONOUR:   Now, the Minister’s side is going to have to have a fair part of the carriage of this I am afraid, Mr Knowles.  It will be of the first importance on the plaintiff’s side of the record to decide whether there is going to be some challenge to validity that comes out of this.

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:   I understand it is not beyond the bounds of possibility, but it is not on the table yet, and if we are going to have challenges to validity, we have to know what is challenged and 78Bs have to go out and all the rest.

MR KNOWLES:   That is right, your Honour.  A lot flows from that.

HIS HONOUR:   Yes, exactly.  So I do not want the parties to go away thinking I have made my mind up.  I really think that until you do the hard work of trying to formulate a case stated you will not be able to see where all the problems are, if they are there, that we need to consider.

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:   But I think, one, you need to work out what the factual basis for the case stated would be.  Now, you can agree facts, you can agree that the asserted facts are taken as true for limited purposes and there are various variations on that theme, but we want to know what the factual basis is and what the question is, or questions are, that then emerge.

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:   Now, it is not an easy task and it will take some time.

MR KNOWLES:   Yes, your Honour.

HIS HONOUR:   Subject to that, if I simply stand the matter out of the list to be fixed on a date to be determined in the period indicated reserving costs, would counsel wish to say more?

MR KNOWLES:   No, your Honour, if your Honour pleases.

HIS HONOUR:   Very well, I will make those orders.

I think that is the list, is it not?  Yes.  I will adjourn.

AT 3.27 PM THE MATTER WAS ADJOURNED