Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations & Anor

[2011] HCATrans 233

[2011] HCATrans 233

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S290 of 2011

B e t w e e n -

DUNGHUTTI ELDERS COUNCIL (ABORIGINAL CORPORATION) RNTBC

Applicant

and

REGISTRAR OF ABORIGINAL AND TORRES STRAIT ISLANDER CORPORATIONS

First Respondent

PETER ARMSTRONG

Second Respondent

Summons

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO SYDNEY

ON THURSDAY, 1 SEPTEMBER 2011, AT 1.19 PM

Copyright in the High Court of Australia

MR A.L. TOKLEY:   May it please your Honour, I appear with MR A.K. FLECKNOE‑BROWN, who is in Sydney at the moment, for the applicant.  (instructed by Eddy Neumann Lawyers)

MR N.J. WILLIAMS, SC:   If it please the Court, I appear with MR J.G. RENWICK, for the respondents.  (instructed by Australian Government Solicitor)

HER HONOUR:   Now, I have the summons of affidavit filed by the applicant and I believe you want leave to file and read a further affidavit by Ms Grant.

MR TOKLEY:   Yes, please, your Honour.

HER HONOUR:   Any objection, Mr Williams?

MR WILLIAMS:   No, your Honour.

HER HONOUR:   Yes, thank you.  There will be a grant of that leave.  I have the respondent’s affidavit material and submissions.  Might I just ask a few questions to clarify a few matters, Mr Tokley?

MR TOKLEY:   Yes, of course, your Honour. 

HER HONOUR:   I could not quite follow the exact nature and purpose of the undertakings that had been put in place up to this point.

MR TOKLEY:   There is an undertaking given on behalf of the first and second respondents and that is not to take any steps pending the –it was first given to not taking any steps pending the outcome of the legal proceedings and that undertaking has been continued and continues until 6.00 pm tomorrow evening.

HER HONOUR:   Tomorrow, yes.  When we set the matter down for hearing today it was in the absence of an undertaking extending it.

MR TOKLEY:   Yes.  The second undertaking concerns the expenditure of costs by the applicant and there is an undertaking not to expend any costs until a certain ‑ ‑ ‑

HER HONOUR:   That is on the part of the applicant?

MR TOKLEY:   That is on the part of the applicant, yes. 

HER HONOUR:   So cross‑undertakings?

MR TOKLEY:   Yes.  As your Honour would have seen from both the outline of submissions and the summons in support, the most recent application, that is the application to re‑open before the Full Court, the application for a stay before the Full Court which was decided by Justice Foster, today’s application and the application of special leave to appeal were all done on a pro bono basis so that no costs are being incurred by the Corporation or by any of the directors of the Corporation.

HER HONOUR:   Yes.  There are no further proceedings anticipated following upon the Full Court’s determination, apart from the application for special leave?

MR TOKLEY:   Apart from the application for special leave to appeal, no, your Honour.  The application for special leave to appeal has been filed, as has the applicant’s summary of argument.

HER HONOUR:   Yes, and an application for expedition.

MR TOKLEY:   Yes, and an application for expedition.

HER HONOUR:   Have you made inquiries as to when the application for special leave might be heard?

MR TOKLEY:   I personally have not, your Honour, I am sorry to say.

HER HONOUR:   It would probably be a few months hence, I imagine. 

MR TOKLEY:   Possibly, your Honour.  The, I think, matters have just been listed for the end of this month, September, as I understand it.  So it is possible it would get into the October list.

HER HONOUR:   Yes.

MR TOKLEY:   All that would be required would be my learned friends to file their response summary of argument, for us to file the reply and then have the application books prepared.

HER HONOUR:   Taking the inquiries that are usual on what is effectively an application for an injunction, you have a threshold to pass which is the probabilities of a successful outcome on special leave.

MR TOKLEY:   Yes, your Honour. 

HER HONOUR:   I have to say, on first considerations, the nature of the case which is before the Full Court does not assist you.

MR TOKLEY:   No, your Honour.  If I could put it this way.  I think the special leave application really arises out of the way in which the Full Court dealt with the fundamentals, or what we might call the underlying bases for refusing the applicant’s application before the Full Court, and it has become more apparent from the Full Court’s reasons that they have taken as their starting point the proposition that procedural fairness will not be implied at a point anterior to the issuing of a notice to show cause and, in my respectful submission, that is a proposition which is not supported ‑ ‑ ‑

HER HONOUR:   No, I thought the Full Court said that there was no statutory foothold for it, that the statute itself really provided a mechanism by which procedural fairness was to be afforded and what you are effectively doing was putting in another layer before the steps the statute had comprehended.

MR TOKLEY:   Yes, your Honour.  That is part of the way in which the Full Court has expressed the matter but our ‑ ‑ ‑

HER HONOUR:   I think it is said against you that the application for special leave somewhat extends the grounds that were argued before the Full Court.

MR TOKLEY:   Not with respect on that first point, your Honour, because it is fairly clear, in my respectful submission, from a reading of the Full Court’s judgment itself, that the Full Court saw that as the basal point in relation to procedural fairness and from that point ‑ ‑ ‑

HER HONOUR:   That is really the essential argument that you put, was it not, that there was an obligation to afford procedural fairness before the notice to show cause was given? 

MR TOKLEY:   Yes, correct, your Honour.

HER HONOUR:   That is really what we are concerned with and in addition to that, it was a question of bias which went with the decision to give the notice to show cause.

MR TOKLEY:   Yes, apprehension of bias.  It is the first point which, we would respectfully submit, raises the special leave question.  At least, in this sense, that ‑ ‑ ‑

HER HONOUR:   For the purpose of special leave one usually tries to find a point of statutory construction.  I can see there is an attempt to generate one here.  That may be what Mr Williams is suggesting was not argued before the Full Court but it is being generated now for the application for special leave.

MR TOKLEY:   In my respectful submission, your Honour, the point that the Full Court makes is a logical point in this sense.  It logically underlies the applicant’s arguments before the Full Court.  It is just that the Full Court articulated in that way, that the applicant’s argument could not have proceeded without that foundation base.

HER HONOUR:   That might be right.  It would not alter the essential argument which you have put forward which, as I have said, would appear to add another layer of procedural fairness.

MR TOKLEY:   Yes, your Honour.

HER HONOUR:   You are saying that there must be some basis in the statute for doing so.

MR TOKLEY:   Yes.  Also, your Honour, one of the points we make, your Honour has probably seen from the written submissions, that the Full Court does not refer to this Court’s decision in the Saeed Case and, in my respectful submission, that particular case, had the Full Court been referred to it, they would have to contrast the approach of this Court in Saeed with the approach that they were then taking.

HER HONOUR:   I am quite familiar with Saeed, but I cannot see immediately how it applies here.

MR TOKLEY:   Your Honour, the argument that the Full Court adopts, in effect, amounts to this, that if there is in existence a show cause procedure, that of itself excludes an obligation to give procedural fairness at an anterior point in time, but it also gives you the opportunity to respond to any concerns and would cure any lack of procedural fairness. 

HER HONOUR:   But in Saeed it was addressed to a jurisdictional fact, was it not?

MR TOKLEY:   Yes, your Honour, and we say this is a jurisdictional fact here because the notice to show cause procedure requires the recipient of the notice to show cause why a determination to appoint a special administrator should not be made, which means that the delegate or the registrar must be satisfied of the grounds for making such a notice before giving it and that is the jurisdictional fact upon which we seek to hinge our case.

HER HONOUR:   I think I follow your points about bias.  Turning to the second inquiry, balance of convenience.  The principle point here seems to be effect upon reputation.  I am not sure how that necessarily follows from a determination, if that occurs, that the Corporation is put in special administration because there would be no outcome for some time.  It is only a preliminary report at this point.

MR TOKLEY:   Your Honour, there are two points really on that balance of convenience.  The one your Honour has just identified which, in my respectful submission, is certainly one of the points that we picked up on but perhaps not the strongest of the two.  The second of the two points is that upon the expiration of the undertaking, if a special administrator is appointed, the special administrator has the power to withdraw the instructions of those representing the Corporation.

HER HONOUR:   Is the special administrator placed in a similar position to a trustee in bankruptcy and takes over the rights and interests of the Corporation, or is it more in the nature of inquiry into the Corporation?

MR TOKLEY:   It is my understanding that the powers of the special administrator are extensive enough – I cannot answer your Honour’s question directly, but it is my understanding they were extensive enough to enable the special administrator to take over the running of any litigation.  Our principal concern, of course, is that ‑ ‑ ‑

HER HONOUR:   But the individual directors have now been made parties to the proceedings, have they not, at least for the purpose of costs?

MR TOKLEY:   They have, but there is an affidavit, I think, from Mr Neumann where he deposes to the fact that the individual directors would not have the financial means to prosecute an application for special leave to appeal or an appeal in the High Court.  The concern also is because of the nature of the proceedings, the individual directors are separately legally represented.  Myself and Mr Flecknoe-Brown and Mr Bennett only represent the Corporation and only in respect of this one matter.  So we are not advising either the Corporation generally speaking nor are we advising the directors.  It is just the prosecution of the application for special leave to appeal.

HER HONOUR:   They are essentially the points in relation to balance of convenience.

MR TOKLEY:   Yes, your Honour.  The other point, I suppose, is that there really could be no prejudice to the respondents in the short term if the matter is ‑ ‑ ‑

HER HONOUR:   But there is a larger public interest question, is there not, about the delay which has already been effected in relation to the making of a decision to set in train perhaps special administration and the public interest in the inquiries which might then follow being undertaken?

MR TOKLEY:   Yes, your Honour, save except that there is power under the Act itself in cases of urgency to appoint a special administrator without going through the show cause procedure and if there was a need for urgency, that could have been done at the very beginning.

HER HONOUR:   If special leave were granted, you could renew an application for an injunction.

MR TOKLEY:   Yes, your Honour.

HER HONOUR:   That highlights, I suppose, the importance of testing the probabilities of special leave.

MR TOKLEY:   Yes, your Honour, and also being able to represent the Corporation on the special leave application.  If, for example, my instructions were withdrawn after 6 o’clock tonight, that would probably be or it may be the end of the application for special leave to appeal.

HER HONOUR:   I think it is 6 o’clock tomorrow night, it has been extended.

MR TOKLEY:   I beg your pardon, I am sorry, your Honour, 6 o’clock tomorrow night.  The basis upon which I put it to your Honour is that one can preserve the status quo so that this Court has the opportunity to hear the application for special leave to appeal.  If it fails, it fails and the consequences follow from that, but the distance between now and when an application might be heard is not so great that there can be any prejudice or any prejudice is shown or referred to.  The other thing of course is that we have undertaken to expedite the matter so that as a litigant, as an applicant, we have done all that we can do and we are doing all that we can do.

HER HONOUR:   It is a pity the application for special leave and expedition were not filed earlier, in which case it might have been on tomorrow, but time is too short really to allow for that.

MR TOKLEY:   Well, there was that, your Honour, but because we needed to have an application which was ‑ ‑ ‑

HER HONOUR:   You are no doubt awaiting the judgment of Justice Foster, in any event.

MR TOKLEY:   We were, yes.

HER HONOUR:   I understand the application for special leave was filed while that was reserved.

MR TOKLEY:   Yes, your Honour, and also we had applied to the Full Court to re‑open the judgment on one of the points and whilst the application ‑ ‑ ‑

HER HONOUR:   Very ambitious of you.

MR TOKLEY:   Yes, your Honour.  Whilst the application was pending and awaiting determination, we could not seal the order of the Full Court.

HER HONOUR:   Yes, I understand.

MR TOKLEY:   So for that reason we could not then file the application for special leave to appeal either. 

HER HONOUR:   Yes.  I should hear from Mr Williams.  Thank you, Mr Tokley.

MR TOKLEY:   Thank you, your Honour.

HER HONOUR:   Yes, Mr Williams.

MR WILLIAMS:   Yes, thank you, your Honour.  To answer two or three of your Honour’s questions, the special administrator is more in the nature of a trustee but is appointed for a period of only six months and notice foreshadows a six month period.

HER HONOUR:   Is the special administrator usually independently appointed and would not be the second respondent?

MR WILLIAMS:   That is so.  That is how I understand it.  It would normally be an accountant, a person of that kind, akin to a trustee in bankruptcy.

HER HONOUR:   I am sorry, you were about to conclude, I think, by saying what the effect would be then on the decision whether to continue the application for special leave.

MR WILLIAMS:   Each of the directors is now a party, as I understand it, for all purposes and could bring that application and there is no reason and no conflict in our friends appearing for one or more of those directors on that special leave application.

HER HONOUR:   As to the application for special leave by the Corporation itself, that would be in the hands of the trustee?

MR WILLIAMS:   That is so.  It may well be that the trustee takes the view for sound reasons that to continue to expose the trust funds to the hazard of a costs order made upon what we say will be the inevitable, with respect, dismissal of the special leave application is a significant matter.  Our friends say the matter is being done pro bono.  In fact, the affidavit reveals that it is being done on a speculative or contingency basis rather than pro bono, but, in any event, there is still the hazard of the costs of the respondent.

HER HONOUR:   Could you just identify the material for me which says it is on a contingency basis?

MR WILLIAMS:   It is the affidavit that has just been filed, your Honour.

HER HONOUR:   I see.  Ms Grant.  I really have not had a chance to ‑ ‑ ‑

MR WILLIAMS:   I understand our friends want to make one correction to that which is in paragraph 4, the word “Full” before “Federal Court” may not be accurate and should be deleted, but nothing turns on that, but there are two or three points about this affidavit.  First, it is significant mostly for what it does not say.  It says in paragraph 3 that the firm “has not rendered any invoices”.  It does not say that the Corporation has not incurred legal costs or how much those costs are.  It simply says that they have not been rendered and in light of material elsewhere in Mr Neumann’s first affidavit, that indicates a practice of not invoicing work for substantial periods.

Page 25 of his affidavit there is a reference to invoicing in 2008 going back to 2006.  There is no comfort to be drawn from paragraph 3.  So, your Honour, there are two questions.  First, there is reason to apprehend that the solicitors for the Corporation have continued to incur costs perhaps not in relation to the special leave application.  Could I say a couple of things about the form of interlocutory relief?

HER HONOUR:   Yes.

MR WILLIAMS:   It is, with respect, not quite right to say that the present undertakings restrain us from taking any steps.  Our present undertaking is that we will not, in effect, appoint a special administrator.  We will not make a decision.  That is the extent of the undertaking.

HER HONOUR:   Yes, I see.

MR WILLIAMS:   Our friend also said that the Corporation was restrained from spending any money.  That is not so, with respect.  The Corporation can spend $7,5000 every seven days and was permitted to incur legal fees up to $50,000 for the appeal and those figures on the period of time for which those orders have been in place, that is of the order of $140,000.  So that is quite a substantial sum of itself.  The legal costs involved in the matter, of course, to date – I am not sure if your Honour has seen the attachment to our submissions, but if I could take your Honour to pages 7 and 8 of that attachment, your Honour will see that up to a date in early May the legal costs of two counsel and Neumann Lawyers – this is on page 7 – for, I think, about a two‑year period, invoicing of about a two‑year period, totalled $1.352 million, which is almost a quarter of the trust funds. 

If your Honour goes on to page 8, your Honour sees in relation – these are the costs only of one of the counsel, but if your Honour sees the references there to AAT proceedings that start about the fourth item and go through to toward the end, a sum of $255,000 being the last entry, those entries there for one counsel alone in relation to AAT proceedings total over $400,000.  These are undoubtedly costs relating to disputes and they are very substantial amounts in terms of the total trust fund.

HER HONOUR:   You are not suggesting that all these costs are relating to disputes concerning membership of the Dunghutti people?

MR WILLIAMS:   No, your Honour, but those relating to the AAT proceedings that I have indicated there, there is something like $400,000.

HER HONOUR:   I see.

MR WILLIAMS:   Relating to costs just in those figures alone.  The exact extent of costs on disputes would be a more complex accounting exercise and there is debate about it, but there can be no debate about those figures.  Could I deal briefly with the strength of the special leave case.  As Justice Foster held in the judgment in recent days dismissing a similar application, the substance of the case for special leave was not put to either the primary judge or the Full Court and the points are, in our respectful submission, without substance. 

The special leave application depends quite heavily upon a double satisfaction argument, the argument that there was somehow an obligation to reach a state of satisfaction prior to issuing the notice.  Now, there is no such status satisfaction referred to in 487‑10(1).  By contrast, in subsection (2) we are dealing with a situation that is so urgent that procedural fairness need not be afforded, there is a satisfaction test, so our friends have to, in effect, imply a satisfaction requirement there in the teeth of express use of that provision in subsection (2), but they have to say, in effect, as the Full Court observed, that although there is a show cause procedure set out and described as a show cause procedure, nevertheless there was a duty, in effect, to invite the applicant to show cause why the show cause procedure should not be invoked. 

That is a novel application of the principles of procedural fairness, with respect.  It has nothing to do with Saeed.  It has nothing to do with exclusion of procedural fairness.  It is merely the relatively common case of an express statutory scheme for procedural fairness and the attempt to imply an antecedent duty is one that faces insurmountable difficulties.  It is this double satisfaction argument that is the basis of our friend’s jurisdictional fact argument.

The second point in relation to bias, our friends suggest that the Full Court applied the wrong test in that respect.  There is no substance, in our respectful submission, to that submission.  The Full Court set out at paragraph 54 of its reasons the low threshold double might test from Johnson v Johnson and proceeded to apply that test.  To the extent to which the application now seeks to raise the question of bias in relation to the Roberts Report, as the Full Court said in dismissing the application to re‑open, that is a point that was not only not argued before the Full Court or a single judge, but it was expressly disallowed before the Full Court.  So there are some difficulties in that respect in the way of special leave as well and for the reasons the Full Court gave, there could be no basis for inferring bias in the present case.

Dealing then with prejudice, as Justice Foster said, there is a prejudice and, in our submission, it is a large prejudice to the respondents in the discharge of their official duties and functions in the exercise of rights that have been very clearly judicially vindicated.  Justice Foster made that observation in paragraph 25 of the third judgment.  There has already been long delays since 11 February when the notice was issued.  It is inevitable that the relevant facts change with time and the passage of events and in that circumstance, any further delay risks rendering the 11 February notice nugatory because events will have at some point quite soon moved on sufficiently that a new notice will be necessary.  If there is one thing that can be said with confidence from the history of this matter going back to 2007 and certainly this year, a new notice will inevitably be met with new proceedings and new injunction applications and the like.

Justice Flick observed, on 14 April in paragraph 122 of the judgment, that the time has come for a decision whether the grounds have been made out.  With respect, we say that time has now long past.  The matters raised in the notice are serious matters, as Justice Foster observed.  Whether they are factually correct is a matter for the respondents and, of course, a matter for the respondents subject to internal review, a right of internal review conferred by statute and full external merit review in the Administrative Appeals Tribunal in which, at the very least, the directors who receive any form of financial benefit would have sufficient standing to bring a case for full merit review of the decision. 

So one might ask rhetorically what the damage is to reputation when any adverse effect on reputation would be vindicated according to the case the directors would have your Honour accept by the reasons of the AAT after full merit review.  On any view of the facts, there is a clear public interest in the early resolution of whether a special administrator should be appointed.  There is a clear public interest in ensuring that the funds are safeguarded.  Undertakings and interlocutory orders give only limited protections and when your Honour sees the careful terms in which today’s affidavit is drawn, there is no basis for assuming that costs are not being incurred, have not been incurred, which at some point, as soon as the restraints on the respondents coming from their undertaking which expires at 5.00 pm on Monday – I am sorry, upon the applicant coming from their undertakings which expires at 5.00 pm on Monday, are released would see costs incurred flowing out and perhaps in the kind of very large sums that we see flowing out on legal costs over the last two years. 

On any view, there is an ongoing dispute that is crippling the organisation and leading to diversion of large sums of funds to legal costs.  $1.352 million of itself is a lot of money in relation to an organisation like this.  It is a lot of Aboriginal scholarships for young people.  It is a lot of contribution to an Aboriginal community of the nature of the Dunghutti and, of course, even if the applicant were to succeed on this special leave application, the costs will not finish there.  Even if the application were to fail on the special leave application, one can already see what is being foreshadowed that despite the existence of merit review rights, further judicial review proceedings are being foreshadowed by affidavit.  In our respectful submission, the interests of the Dunghutti as a whole favour early resolution of the matters raised by the notice.

Your Honour asked about available dates.  The next special leave date in Sydney is 7 October.  There is then one in November.  Even 7 October, in our submission, is a long way away in the context of a notice issued on 11 February that the trial judge in April thought should be determined promptly.  Unless there are matters your Honour wishes to raise, those are our submissions.

HER HONOUR:   Thank you, Mr Williams.  Mr Tokley, I had not appreciated that the applicant’s undertakings expire on Monday.  Are they dealt with in your material?

MR TOKLEY:   Your Honour, they are not dealt with expressly, but there is no difficulty in extending the undertaking for as long as is necessary.

HER HONOUR:   Is someone wishing to be heard?

MR FLECKNOE-BROWN:   Your Honour, I apologise for interrupting my learned leader.  There are two small points that have arisen at this end of the video link which he is not aware of.  At the start of the hearing my instructing solicitor informed me that we have instructions that several of the directors of the Corporation wish to join the special leave application.  As Mr Williams said, there would be no conflict in that regard.  We can deal with that at a later stage.

HER HONOUR:   I am sorry, you said that they do wish to join the application?

MR FLECKNOE-BROWN:   They do, yes.

HER HONOUR:   Yes, thank you.

MR FLECKNOE-BROWN:   The only other issue is concerning the affidavit which was filed today.  The inference that should be drawn from that affidavit is that there will be no detriment to the Corporation’s funds as a result of continuance of this special leave application or any subsequent appeal on the basis that fees will only be charged if a cost order is made in favour of the applicant, or appellant ultimately.  There can be no concern about detriment to funds held on trust to the Dunghutti people.

HER HONOUR:   Yes.  Mr Tokley, with that in mind, is there anything further you wish to add by way of reply?

MR TOKLEY:   Thank you, your Honour, if I may please.  I am conscious of the time.  I am conscious that your Honour is back in Court this afternoon as well.  Your Honour, on the question of costs, both Mr Bennett and myself have given assurances to the Federal Court that we are acting pro bono in the matter.

HER HONOUR:   I think it relates to the solicitors, the affidavit, does it not?

MR TOKLEY:   Yes.

HER HONOUR:   The solicitors appear to be acting on a contingency basis.

MR TOKLEY:   Your Honour, there is the solicitor of Mr Neumann which is the one that is in support of the application for the injunction at paragraph 22 where he has stated that these proceedings are “being conducted on a pro bono basis by Counsel and by my firm.”  That is certainly my understanding, that Eddy Neumann and Co are representing the Corporation on a pro bono basis in respect of this application.

HER HONOUR:   Yes, thank you, Mr Tokley.

MR TOKLEY:   Your Honour, all the other costs are past costs that they have incurred.  Your Honour, in relation to the double satisfaction point, the section itself says the registrar may make a determination under subsection (1) only if the registrar is satisfied that at least one of the grounds set out in section 487‑5 is satisfied.  That is the double satisfaction test, but the satisfaction must be reached before a show cause notice can issue because the show cause notice is itself to show cause why a determination should not be made.  Your Honour, there were a number of points made by Mr Williams, I do not think any useful purpose would be served by trying to respond to all of them.

HER HONOUR:   Not on an application of this nature.  Thank you, Mr Tokley.

MR TOKLEY:   No.  Thank you, your Honour.

HER HONOUR:   Mr Williams, Mr Tokley, you are probably aware that time is a little limited today, but I thought it best to have the matter heard and oral submissions put in addition to the written submissions.  I will give a decision in the matter at 9.00 am tomorrow in Sydney before the commencement of the special leave applications.

MR WILLIAMS:   Your Honour, could I just call attention to paragraph 5 of today’s affidavit in clarification, today’s affidavit of Mr Neumann in qualification of the earlier affidavit where he states plainly that there have been done professional fees:

All work that has been done by Eddy Neumann Lawyers and counsel on behalf of the applicant since 21 July 2011 has been done on the basis that professional fees will only be charged if a costs order is made . . . and only to the extent of that costs order. 

Thank you, your Honour.

MR COADY:   Your Honour, there is one final matter.  I apologise for the delay.  May I announce my appearance.

HER HONOUR:   I am sorry, who is speaking?

MR COADY:   Your Honour, may it please the Court, my name is Coady.  I apologise for the late appearance.  I have received a brief and I have accepted the brief to appear for 12 of the 13 individual company directors of which there was a costs application.  I did not receive a brief and I have not accepted one in relation to the application today.  At 25 past 1 my instructing solicitor received a telephone call to the effect that the individual directors themselves had decided that they wish to join the application today.  Your Honour, as I said, I have not accepted that brief but I did feel it was important for me to come and announce that to the Court today.  I apologise for the delay.

HER HONOUR:   You are not seeking an adjournment, I assume?

MR COADY:   I am not, your Honour.

HER HONOUR:   No.  There would be no basis for that.

MR COADY:   Simply to put their wishes.

HER HONOUR:   Do they wish to be part of this application or is this because it is intended that they are going to be part of the application for special leave?

MR COADY:   As I understand my instructions, it was to be part of this application.

HER HONOUR:   All right.  Is there anything in addition to what has been put by Mr Tokley which you would put if you were given ‑ ‑ ‑

MR COADY:   There is not, your Honour, and I have not been present in Court.  As soon as I received that phone call, I came straight to Court to effectively inform the parties and to the Court.  As I said, I have not accepted the brief in this matter, but I do feel it is important to inform your Honour of that development.

HER HONOUR:   Thank you for that, Mr Coady.  I take it that their interests, in any event, have been served by what Mr Tokley has put before the Court.  Thank you.  Yes, as I have said, I will give a decision in this matter at 9.00 am tomorrow morning in Sydney. 

AT 1.55 PM THE MATTER WAS ADJOURNED