Dileum Pty Ltd v Jericho Nominees Pty Ltd

[1990] HCATrans 252

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P13 of 1990

B e t w e e n -

DILEUM PTY LTD

Applicant

and

JERICHO NOMINEES PTY LTD

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J

DEANE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 1990, AT 4.33 PM

Copyright in the High Court of Australia

Dileum 1 24/10/90

MR C.L. ZELESTIS, OC:  May it please Your Honours, with my

learned friend, MR G.D. CROCKET, I appear for the

applicant. (instructed by Corrs)

MR C.J.L. PULLIN, OC:  May it please the Court, with

MR D. MOSSENSON, I appear for the respondent.

(instructed by Phillips Fox)

MASON CJ: Mr Zelestis.

MR ZELESTIS:	May it please Your Honours, this application raises questions which concern the rights as
between lessors and lessees where the lessees
conduct businesses of liquor stores, pursuant to a liquor store licence granted under the Liquor Licensing Act 1988 upon premises of a lessor and
the issue arises in the context of the lease coming to an end and the tenant or lessee being desirous
of protecting his interest in the valuable goodwill
which may have been generated during the period of
his tenancy.
MASON CJ:	Now, we have read the papers and I think you

might proceed immediately to endeavour to persuade

us that the decision of the Full Court is wrong

and, in doing that, you might refer us to the

relevant provisions of the 1988 Act because we have

had a glance at them and we do not find them

particularly easy to understand. So, if you could
elucidate those provisions for us - the critical

provisions which bear upon the application.

MR ZELESTIS:  Thank you, Your Honour. Can I go immediately

to section 84(1) which is at the heart of the case.

DEANE J:  I do not seem to have a copy of the Act.

MR ZELESTIS:  I am sorry, we sent down four copies. My

learned junior tells me that his copy is marked, if

Your Honour will bear with that.

DEANE J: It might help.

BRENNAN J: The four copies seem to have gone astray

somewhere, Mr Zelestis.

MR ZELESTIS:  I am sorry, we sent down four copies

yesterday, Your Honour, together with the 1970 Act

and the South Australian Act.	I am sorry there has
been that - - -

MASON CJ:  We have copies at the moment so we can proceed,

Mr Zelestis.

MR ZELESTIS:  I am sorry about that practical difficulty.

Section 84(1) of the 1988 Act is at the heart of

the matter. We are dealing with transfers of

Dileum 2 24/10/90

licence, a licence has already been obtained by the

tenant and section 84 provides that:

(1) The Director shall not grant an

application for approval of the

transfer ..... in relation to any premises

unless the application is made -

under one of three categories of case. The first

one and the third one are material in this case.

MASON CJ: But they are each disjunctives, are they?

MR ZELESTIS: In our submission, yes. It is the first and

the third, (a) and (c), which are relevant in this
case:

(a) pursuant to a contract for the sale or assignment of the right of the licensee to carry on business under the licence, the

licensee consenting -

and

(c) with leave of the Director.

Now, the first point to be made is that in any

event the question whether or not a transfer

application will be granted is discretionary

because by section 33 of the Act:

the licensing authority -

and that is defined to include the court or the

director where appropriate -

the licensing authority has an absolute

discretion to grant or refuse an application

under this Act on any ground.

So, you start with the proposition that, in any

event, an application for approval to transfer a

licence rests in discretion and against that

background you have an additional threshold

requirement imposed in the category (c) case but

you can only make the application if you have the

leave of the Director, that is the leave of the

person who has the unfettered, and virtually

unfettered, discretion - I should not say
unfettered - but fettered only by very broad

policies laid down in the Act whether to grant the

substantive application or not. And our submission

in relation to paragraph (c) is that the

legislative intention must have been to confine (c)

and not have leave applications, under that

paragraph, judged by all of the criteria which

Dileurn 3 24/10/90

might be taken into account on the substantive

application.

BRENNAN J:  Mr Zelestis, what are the requirements for a

store licence?

MR ZELESTIS: Section 47 says what a store licence entitles

a person to do and the requirements relating to

licences, generally, appear in sections 37 and 38.

There are a range of factors which concern the

fitness of persons and the appropriateness of the

licence being located in certain premises and other

facilities.

BRENNAN J:  The licence is linked both to person and

premises?

MR ZELESTIS:  And premises, yes.

BRENNAN J: Well, now, in this case you are no longer in

possession of the licensed premises?

MR ZELESTIS:  No.

BRENNAN J: So, you cannot hold the licence?

MR ZELESTIS: With respect, the answer is not necessarily no

because at the bottom of our submission is this

practical proposition that the purpose of the

provisions to which I am going to direct the

Court's attention was to fqrce, in effect,

landlords and tenants to treat in circumstances

such as this either resulting in a continuation or

a renewal of the term or resulting in the landlord

paying the tenant something for his goodwill and

the landlord obtaining a transfer to the licence.

So, in terms of legally - - -

BRENNAN J: Whichever way it goes in the circumstances of

this case, you do not have the licence now?

MR ZELESTIS: Well, we do not have any legal interest in the

licence now because section 37(5) has operated to

remove our interest upon the cessation of our

occupation of the premises. But we say, with

respect, that does not determine our interest in

the matter for the reason I have put and that
reason is that, if our construction of the

provisions is correct, and I will explain it

further in a moment, then the position in a case

such as this is that the landlord cannot get the

licence without paying the tenant, he cannot

automatically get it, and the practical effect of

that may be either to cause him to pay the tenant

for the goodwill and hence come within

paragraph (a) of section 84(1) or, if -he does not

want to pay for the goodwill, to extend the term

Dileum 24/10/90

and negotiate satisfactory terms for a renewed term

in which event the tenant would obtain the licence

again, because the policy of the Act, we say, is to

protect the tenant's interest in goodwill and the

principal way in which that emerges is from a

reading of section 84(l)(a) with section 87.

Section 84(l)(a) - and bear in mind 84 is

dealing with transfer applications for a range of

licences; we are concerned, in this case, only with

a store licence - and 84(1)(a) provides that you

can apply for a transfer if you have:

a contract for the sale or assignment of the

right of the licensee to carry on business

under the licence -

or in (b) if you have a right under section 86:

to carry on the business of the licensee; or

(ii) may, under section 87, be granted a

protection order.

Now, section 86 is inapplicable in this case and

section 87(1) deals with circumstances where

licensees cease to occupy the licensed premises and
provides in all cases except for liquor store

licences that:

the owner, lessor or mortgagee of the licensed

premises applies within 28 days -

for a protection order. It is an interim measure which enables that person to get into possession, continue the business while a transfer application

proceeds and by coming within 87(l)(a) in the

ordinary case, a liquor store licence apart, a

person comes within 84(l)(b)(ii) and hence is

capable or is entitled to apply for a transfer

under section 84(1).

What is important to see is that in section 87

in paragraphs (a) and (b), liquor store licences

have been excluded with the result that upon the

cessation of the tenancy of a liquor store licence

the owner, lessor or mortgagee does not have the

right to go into possession straight away and run

the business while he makes an application for

transfer. So he is driven either to (a) or (c) of

section 84(1). Now, that has to be contrasted with

the provision under the 1970 Act which provided, in substance, that upon the cessation of a tenancy and the re-entry by the lessor the licence inure for

the benefit of the lessor.

Dileum 24/10/90

Now, our submission is that Parliament has

deliberately and specifically singled out the

position of store licences here with the object of

protecting the tenant's interest in goodwill by, as

I have put it, forcing the parties to treat at the end of the lease. The pressure on the landlord is

that he is not going to get a virtually automatic

right to the licence.

BRENNAN J: But why is that so in terms of the object of the

change. If in the case of liquor store licences

the landlord cannot get a protection order under 87

and he is driven into (a) or (c), does it not

simply mean that in the case where there is no

agreement between the lessor and the lessee under

(a) that the landlord must then apply for the

director's leave under (c)?

MR ZELESTIS: Well, in our respectful submission, it would

defeat the object of the policy which I have
described if (c) was available without regard to
the circumstances of a case such as this. One must

bear in mind, as I have said, that the grant of the

application for a transfer of the licence is

already discretionary, (c) must be seeking to

impose some other threshold requirement and, with

respect, it could not be applied in a way which

enabled a landlord who could not successfully

treat, simply to say, "Well, now I want leave".

MASON CJ:	How do you confine (c)?
MR ZELESTIS:	You confine (c), in our respectful submission,

by a consideration of 84 and 87 and you confine it
by saying that it is concerned with cases which do

not offend the policy manifested by, particularly,

section 87. Now, there may well be, for example,

cases analogous to section 86 cases, cases of

parties going into bankruptcy, death and other

circumstances, unusual events, and it may be that
not all of those have been foreseen by the

legislature, analogous cases may occur, but they do

not offend the policy which is enshrined in

section 87(l)(a) and (l)(b) which is that in

contrast with all other liquor store licences, in

the case of a store licence:

the owner, lessor or mortgagee -

cannot simply step in and claim a protection order

and standing to make an application for transfer.

DEANE J:  You would say 84(l)(c) requires a director to act

in accordance with what is fair and just, including

the interests of the licensee who has not

consented?

Dileum 6 24/10/90

MR ZELESTIS: Yes. We would put it, perhaps, even more

narrowly than that. We say that in considering

what, on a proper construction of the Act, are the

factors which impinge upon the exercise of a

discretion there is this strong policy emerging

from section 87 and that paragraph (c) cannot be

applied in a way which really defeats that and we

would go further and say, it is not really for the

director to judge the merits of the stance that
each of the two parties may have taken in

negotiations which have proved unsuccessful when an

attempt to treat has been made. We say, that it is

a more fundamental policy consideration which

confines the scope of paragraph (c).

But, of course, what the Full Court did in

this case was to say that broader public policy

requirements supported the application of

paragraph (c) in this case. Mr Justice Rowland with

whom Mr Justice Wallwork agreed on this point put

it very squarely on the basis that the Act was

designed to provide public facilities for obtaining

liquor and, in effect, the application could be
supported under paragraph (c) on the basis that to

refuse it would be to close a store that was

previously thought to be a useful public amenity

and we say that that is a wrong appreciation of

what section 87, particularly, in combination with

section 84 is designed to achieve.

MASON CJ: But I have not quite understood what you say the

content of (c) is. Let us assume, for example,

that the landlord has been prepared to treat with

the lessee but they have not been able to arrive at

agreement with respect to what should be paid to

the lessee. Is it then for the director under (c)
to make a determination as to whether or not the

landlord has behaved fairly towards the lessee?

MR ZELESTIS: That may be one view but, as I said, we at the

highest point in our case would put a narrower

proposition, but that is one step away from our

highest proposition, would be to say that the

director can judge the fairness of the conduct of

the parties in their attempt to treat.

MASON CJ: Well, if he cannot judge in those circumstances

it certainly would arm the lessee with an

extraordinary stick with which to beat the landlord

because there would not be, on your argument, a

contract for the sale or assignment of the right of
the licensee to carry on business under the

licence?

MR ZELESTIS:  No, that is true.

Dileum 7 24/10/90

MASON CJ:  And yet you would say that, in those

circumstances, the director would not be able to

give leave under (c).

MR ZELESTIS:  That is on its narrowest view. The view we

have to defeat in the court below was a view at the

other end of the scale.

MASON CJ: Yes.

MR ZELESTIS:  And I have already put that view and will not

repeat it.

BRENNAN J:  Mr Zelestis, there is another problem, is there

not, and that is that even if the director could

determine whether or not the arrangements between

the parties or the negotiations had been fair, or the proposals on one side had been reasonable, he

yet has no jurisdiction to impose conditions on the

grant of leave that an appropriate purchase price

be paid?

MR ZELESTIS: There is no power expressed and that is not a

proposition that has been put that he does have
leave but the point is that as the matter stands at
the moment if the decision below is allowed to

stand the Full Court by majority has told the

director, in effect, that this underlying public

requirement of preserving the amenity is to be the

dominant character and there will be no

investigation by the director of the merits of the

conduct of the parties in relation to any attempt

there has been to treat. So, if our view at its

narrowest does not meet with approval by the Court,

with respect, it is not a reason for rejecting the

special leave application because, as I have put

it, the way the matter stands at the moment we say,

on any view, a wrong construction has been placed

upon paragraph (c) and that that ought not be

allowed to stand.

BRENNAN J: Is there anything in the judgments at present

which restricts the factors which the director can

take into account in paragraph (c).

MR ZELESTIS:  I take Your Honours to Mr Justice Rowland's

decision. This was the first ground upon which

His Honour allowed the appeal and it is at page 58

in the application book, and between lines 10

and 30 His Honour refers to this question. I will

not read it to the Court, but it is there and it is

also mentioned at 56, lines 8 to 18. And then

His Honour reaches his conclusion on the point at

60, lines 8 to 18 and, particularly, at 60 where

His Honours says:

Dileurn 8 24/10/90

but otherwise in conformity with the clear

objects of the Act which is to regulate the

industry and provide the other objects set out

in s.5.

His Honour is, in our respectful submission,

plainly referring back to this object of continuing

the public amenity provided by the licensed outlet

and is saying that really that is the dominant

consideration and we say that what His Honour is

really saying to the director is, "When this matter

comes back before you there is no reason why the

transfer application ought not be granted". And
that is why we say the proposition upon which the

majority rested their decision was a very broad and

wrong view of subparagraph (c) because it really

imposes, virtually, no threshold requirement, it is

just a question of continuing the public facility.

Now, it may be that our first proposition is

too narrow but, with respect, the matter must then

come back to the position mentioned by Your Honour

the Chief Justice that at worst what the director

must consider under paragraph (c) is the conduct of

the parties in relation to this object which, we

submit, the Act manifests and that is that the
tenant ought to be given reasonable protection for

his goodwill and there ought to be evidence as to

what, if any, attempts have been made to treat

between the parties and the director can make a

judgment. But we say that what the court below

missed was the requirement that paragraph (c) is

directed to something more specific than the

general policy considerations because those general

policy considerations are already brought into play
by section 33 which makes the ultimate exercise

discretionary in any event.

Those are the critical provisions,

Your Honours. I have mentioned section 37(5). I

should mention, also, section 31(1) which makes it

plain that the fact that the lessee loses his

interest in the licence does not bring the licence
to an end.	I am sorry, it is 32(2) which makes

clear that the licence is not brought to an end and

31(1) is a corollary to that and it provides that

an application for approval to transfer is an

application to substitute the name of the

transferee for that of the person who holds the

licence. So, the Act notionally preserves the

licence in being, notwithstanding that the former

owner ceases to have an interest in it. It

continues the licence and says that a transfer

application is an application to substitute one

name for another.

Dileum 9 24/10/90

DEANE J:  The director took the view that in the absence of

a contract he simply should not give leave without

inquiring - - -

MR ZELESTIS:  The director, we would say, with respect, took

what might be described as the narrower view -

DEANE J: Well, that is what I put to you.

MR ZELESTIS: Yes, yes.

DEANE J: Well, then what view did Justice Wallace take?

MR ZELESTIS: Justice Wallace certainly rejected the

argument under paragraph (a) and dealt with the

paragraph (c) argument beginning at 49 and rejected

the argument as it was put below which was the

argument which Mr Justice Rowland accepted. and the so-called collision between private and

public interest there was the collision between the

tenant's right in trying to protect his goodwill

and the public's right in having access to liquor

at these premises and His Honour was rejecting that

consideration. But His Honour did not go on to say
what, in his view, was a proper effect, a proper

construction, of paragraph (c).

MASON CJ:  I notice His Honour said that no application for leave had been sought.

MR ZELESTIS: That is so, although the case was argued in

the court below on the basis that they were

entitled to leave and the question of construction

was before the court, but no formal application for

leave had been made. The case was originally

presented under (a) and originally presented with a
concession that there was no contract but that

concession was resiled from.

But we say that, as I said and perhaps I

should not repeat it, but if the very narrow view

be corrected because, in substance, the director's	is wrong then, at least, the court below ought to
view has been rejected and the director is being
told that it is the underlying policy of providing
public services and facilities which is to be
paramount. We say, in substance, that the director
correctly perceived the policy of the Act and
explained it at pages 6 to 8.

Your Honours, those are the critical statutory

provisions.

MASON CJ: Yes, Mr Pullin.

Dileum	10	24/10/90
MR PULLIN:	May it please the Court.	Accepting that the

policy of the new Act is to force the parties to

treat we say that the parties did treat in this

case. One sees in the lease and in the assignment

of lease an agreement reached between the owners of the land and the tenant at the time to transfer the lease, or to take steps which would bring about a

transfer of the licence at the end of the tenancy

period.

Now, there is a slight error in my outline of

submissions which should have been sent down to the

Court. I said that the respondent had purchased

and paid for the land, this was at the bottom of

page 2, in fact it was the Mciinnis's company,

J K Corporation Pty Ltd, which was the purchaser of

the land and which therefore stepped into the shoes
of the original lessor, there being privity of
estate, but the lease and the assignment provided

for a transfer to either the landlord or nominee

and Jericho, which is the party in this case, the

respondent, is the nominee of J K Corporation.

So, we say there was an agreement between the

parties in this case to transfer the licence at the

end of the tenancy period. And if I can just say

what the change in the Act is, if one goes to the

old Liquor Act, in section 88 of the old Liquor Act

there was a provision which said that:

Where ..... an event mentioned in the first

column of the Third Schedule occurs -

then -

the· licensee's right to the licence terminates
and the licence enures for the benefit of his

successor, being ..... one of the persons

mentioned in the second column.

Now, one of the events in the first column is that

the licensee ceases to occupy the licensed premises

and the second column indicated that the owner of

the premises was then the person for whom the

licence inured - the benefit of which inured. Now, the new Act took away that automatic step occurring

and accepting that there is a change in policy, but

the fact is in this case there was an agreement on

foot between the parties and quite clearly no

interpretation of the Act would suggest that

parties who had ordered their affairs on the basis

of an agreement to transfer the licence at the end

of the period would suddenly find that an Act would

be passed which would interfere with that right.

It can be done but necessary intendment or an

express provision in the Act would be necessary to

bring that about.

Dileum 11 24/10/90

DEANE J: But does not the material before us indicate, and

it comes from the ex-licensing person, that all or

the majority of lease documentation had such a

provision and that this Act was intended to overcome

a situation where such a provision which was seen as

a formality was being used to deprive the tenant of

the goodwill of what was, in effect, the tenant's

business? Now, it may well be that the

circumstances of this case are as you say, but if

one were of the view that (c) required the director

to address the question of what was fair in the

circumstances of the case - I am not saying that is

right, but if one were of the view that was the

correct construction - is it not apparent that that

has never been done here?

MR PULLIN:	Your Honour, what happened was that the director said that he detected a policy which is a policy
put forward on the other side and then just refused leave.
DEANE J:	He took the view it was not for him to inquire, he
just said no.
MR PULLIN:	Yes. What the Full Court said was he has got the wrong end of the stick because all that the new
Act is saying is that where the parties have not
reached any agreement then these provisions will
apply.

DEANE J: Well, now, nobody seems to have taken the middle

ground and said, "Well, the director has a

discretion; it arises lack of licencee's consent;

he should exercise having regard to what is fair

and taking into account the previous licencee's

interests. Well, now, was that argument ever put

against you?

MR PULLIN:  No one has ever attempted to define the limits

of the discretion, all that has ever been said is

that what the director did in detecting this policy

was to take into account a wrong consideration and

so, in the end result, the court said, "Look, in

effect he has taken into account an irrelevant

consideration and therefore his decision is bad -

the exercise of discretion is bad".

The real basis of the argument, Your Honours,

is this interpretation of section 84(1)(a) -

DEANE J: Mr Pullin, forgive me interpreting but I am just

trying to bring you to the point that is concerning

me. If one were not persuaded by the narrow

construction, to adopt the words used, but were of
the view that it was at least strongly arguable
that the director had to take account of your

opponent's interests and decide what was fair in

Dileum 12 24/10/90

the circumstances, can it be said, "Well, that is

something that has never been put in the courts

below, or in the court below, or in the

licensing - - -

MR PULLIN:	I am sorry, Your Honour, the point that has never been put is the consideration of the fairness
of the transaction.  Does Your Honour mean that
that has never been a matter considered?

DEANE J: Well, I am just asking you, has that been raised

because it does not seem to have been considered in

the Full Court?

MR PULLIN:  No, I think it has not, the reason being,

Your Honour, because what the Full Court did was to

say here is a discretion, the director took into

account an irrelevant consideration, therefore the

exercise of its discretion is bad and that was the
only basis for his decision was to say, "Well, here

is the policy, I know what the policy of the Act

is, the policy is this and therefore at the

threshold you do not even get your application on

foot" and the Full Court has said, "That is wrong,
so therefore the exercise of discretion has

miscarried." That is the reasoning of the Full Court. There has been no attempt to define the content of this discretion.

DEANE J: If the Full Court decision stands, what happens

next?

MR PULLIN: Well, there is scope for us to go through plenty

of other courts, Your Honour, because what happens

is that now the application for the transfer comes

on for hearing before the director and anyone who

wishes to object can bring forward their objections

to the application for transfer by my client. That

can then be the subject of review before the judge

in the licensing court and then a hearing.

DEANE J: But as it stands can the director take account of

what is fair in all the circumstances, including

the legitimate claims of the previous licencee?

MR PULLIN: Your Honour, the order that is made I think is,

I just need to go to exactly what the judgment was

of this Court. The order is on page 75, I am sorry

I cannot answer the question without looking at 75.

Your Honour, all that has happened is that the

decision has been quashed and been sent back to be

dealt with in accordance with law.

DEANE J: Well, that seems to answer my question.

MR PULLIN: Yes, it does.

Dileum 13 24/10/90

MASON CJ: We need not trouble you further, Mr Pullin. Mr

Zelestis do you have anything in reply?

MR ZELESTIS:  Can I just mention another point concerning

the effect of the decision as it presently stands

in relation to paragraph (c). At page 59, at the

top of the page, in the course of this discussion

of the point, Mr Justice Rowland, lines 1 to 8

refers to the pre-existing:

contractual arrangements -

and then said:

In considering, as he did, whether leave should be granted the Director has exercised

his discretion on a totally wrong basis.

Then, it is following that His Honour picks up this

other policy ..... and we say that it is clear from

that that the message being sent to the courts

below is that the policy, which was the foundation

of the director's decision and perhaps too narrow a
construction of paragraph (c), is not relevant at

all and really the message being sent to the court

below is that it is the broader underlying policy

consideration of securing the public amenity for

the public - - -

DEANE J: But your task in obtaining leave becomes very

difficult if on a narrow question of construction

of a particular provision of a State Act, it

appears that the actual decision was correct but

that some of the comments made in relation to it

deserve closer examination.

MR ZELESTIS: With respect, I accept that to this extent,

Your Honour, that if it is not going to be

productive of injustice - that side of it - if the

director is left with a direction, in effect, that

he is to approach the matter in a way which is

wrong which does not affect and the construction

which has been tentatively advocated in argument,

then that would be productive of injustice, not

only in this case but possibly in other cases.	And
that is the point that I wish to emphasize.	You

see, if the director is to read this judgment as we

say its natural meaning is of saying that his

approach, based upon the policy as he firmly put

it, was wrong then that will be productive of

injustice.

MASON CJ:  The Court will take a short adjournment in order
to consider the course it will take in this matter.

Dileum	14	24/10/90
AT 5.10 PM SHORT ADJOURNMENT
UPON RESUMING AT 5.12 PM:

MASON CJ:  As the scope and content of section 84(l)(c) of

the Liquor Licensing Act of 1988 which are crucial to the outcome of this case have not been explored in the courts below it would not be appropriate to grant special leave to appeal with a view to

ventilating the operation of that provision. The

application for special leave is therefore refused.

MR PULLIN:	I seek an order for costs, Your Honour.
MASON CJ:	You do not oppose that, Mr Zelestis?
MR ZELESTIS:	No, Your Honour.
MR PULLIN:	Your Honour, before it is dealt with could I

just, in case there is any misunderstanding,

because my learned friend suggested also that

section 84(l)(c) had not been dealt with, in fact,

my submissions are on the basis that section

84(l)(c) had been dealt with and my submission was

that there had been an irrelevant consideration

taken into account in the exercise of that

discretion. They were my submissions and, in fact,

it was dealt with by the judge in the Liquor

Licensing Court on review it being a hearing de novo and I never got to the point of dealing with

that in my submissions. So, we would submit, that

the issue has been ventilated and we would be

unhappy to see the matter going back and dealt with

again when we would submit that it has been

explored both by the judge of the Liquor Licensing

Court and, on review, in the supreme court and we would not want - - -

DEANE J: But there are two aspects of this are there not.

One is, was it dealt with by the director on the

basis of in irrelevant consideration.

MR PULLIN:  Yes

DEANE J: That has been dealt with and decided and I think

it emerged, in argument, that the court did not

think the decision in that respect was attended by

sufficient doubt.

MR PULLIN: Yes.

DEANE J:  One then passes to the next question and that is

when it goes back are general considerations of

Dileum 15 24/10/90

fairness open. You have told us that that

apparently was not the subject of detailed debate

or discussion in the court below.

MR PULLIN:  No. What are the proper considerations were

never explored.

MASON CJ: That is the point.

MR PULLIN: Yes.

DEANE J:  The transcript will make it clear now.

MR PULLIN: Yes, it will.

MASON CJ:  The Court will now adjourn.

AT 5.15 PM THE MATTER WAS ADJOURNED SINE DIE

Dileum 16 24/10/90