Dwyer v Calco Timbers Pty Ltd

[2007] HCATrans 395

[2007] HCATrans 395

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M125 of 2006

B e t w e e n -

BRETT DWYER

Applicant

and

CALCO TIMBERS PTY LTD

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 AUGUST 2007, AT 10.57 AM

Copyright in the High Court of Australia

MR J.H. KENNAN, SC:   May it please the Court, I appear with MR P.G. MISSO and MR C.E. SHAW for the applicant.  (instructed by Salter & Gordon)

MR J.H.L. FORREST, QC:   May it please the Court, I appear with MR J.P. GORTON on behalf of the respondent.  (instructed by Wisewoulds Lawyers)

HAYNE J:   Yes, Mr Kennan.

MR KENNAN:   Your Honour, can I say at the outset that this application, although it arises from a serious injury application, it has not asked the Court to look at the definition of “serious injury” or whether or not there was a serious injury in this case, rather, there are two issues which we say are of importance.  Firstly, what a trial judge has to do in saying who won and who lost, that is, the need for reasons for the ultimate conclusion and the second matter is what an appeal court must do before it can say that an appeal has succeeded or failed in circumstances where the statute governing the appeal requires the appeal court to decide for itself.

If I can turn firstly to the sufficiency of reasons.  The judge at first instance made a number of findings of fact and then simply stated her ultimate conclusion following the findings of fact, that is, the judge said that she was not affirmatively satisfied that the impairment or loss of function of the upper right limb may fairly be described as very considerable.  A similar finding was made in relation to scarring.

HAYNE J:   What more should her Honour have done?

MR KENNAN:   She should have explained, as Justice Nettle said in Hunter and recently in Vodusek, the Chief Justice agreeing with him, provided an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion and here it is the latter that we say is missing, that is, that there is no process of reasoning that indicates why the ultimate conclusion was reached.  We say that that clear statement that was made by Justice Nettle in Hunter and then more recently in Vodusek, with the agreement of a number of other judges including the Chief Justice, is in stark contrast to the approach of the Court of Appeal in this case.

There may be a number of reasons why, after a finding of certain facts, a judge does not find, or does find, that the injury is serious but here there is simply no explanation.  We do not know, for instance, whether or not the judge in this case in reaching her negative conclusion had in mind more catastrophic injuries such as the total loss of a dominant arm.  We do not know whether she thought the fact that he was able to redeploy himself in another job was an indication that it was not serious.  We do not know whether she considered that the pain that she found that he suffered on a daily basis was not in the scheme of things very considerable.

We do not know, for instance, whether she thought that the difficulties he had in personal toileting as a result of this injury was not a factor which in her mind was very considerable.  We do not know why she thought that the loss of leisure activities, inability to ride a motorbike, inability to play golf, inability to ride a pushbike, whether or not that that loss of leisure activities in the context of his life was not all that important.  All of those sorts of factors could have been, in our submission, set out and if the ‑ ‑ ‑

CALLINAN J:   Mr Keenan, did not Justice Nettle in Vodusek really define the issue and deal with the issue which was not, I suggest, what you are putting to us, but that whether the primary judge had dealt with some very important contrary evidence, indeed, evidence of an objective kind shown, I think, on a video film?  Is that not apparent from pages 253 to 254 of the bound book of authorities that you have given us?

MR KENNAN:   Yes, your Honour.

CALLINAN J:   That seems to be a somewhat different case from this one.

MR KENNAN:   Yes, your Honour, but the formula that he expressed ‑ ‑ ‑

CALLINAN J:   I have read the formula but that formula that his Honour was suggesting was appropriate was in the circumstances of that case, that is, absence of reference to some critical objective contrary evidence.

MR KENNAN:   Except, your Honour, his Honour did say there needs to be:

an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion.

We say here there was just an absence of that.  The judge set out a list of findings but then a conclusion was stated and it may be tested, we say, in this way, your Honour, that the opposite conclusion could equally have been stated.  Her Honour could have said, “I find that the injury is serious, the impairment is very considerable.”

HAYNE J:   Part of the difficulty lies in the necessarily impressionistic standard that is proffered, particularly in its application to a scarring case.

MR KENNAN:   That is so, your Honour, and it has been said that these cases do involve matters of value judgment and an opinion, but that does not detract from the need for a court to express reasons and indeed the fact that it is an opinion, we would say, would underline why reasons should be expressed.  If an opinion is expressed, there should be reasons for the expression of that opinion.

CALLINAN J:   What is wrong with paragraph 17 on page 9 of the primary judge, the second sentence:

However, when the consequences to the plaintiff of the permanent impairment of the dominant limb are considered, quite apart from his disfigurement . . . and when the injury is compared with other cases in the range of possible impairments or losses, I am not affirmatively satisfied –

Is that not a statement of the reason?

MR KENNAN:   No, your Honour.  We say that is a statement of conclusion and we do not know what it is about the consequences that she says are not very considerable.  Indeed, if one reads the consequences that are set out in the previous paragraph, paragraph 16 – there was no issue of credit in this case – but she found there pain on a daily basis, not being able to “fully extend the elbow of his right arm”, not being able to turn the palm.

CALLINAN J:   Can you give me an example of what more she could and should have said?

MR KENNAN:   Yes, your Honour, she could have said, we say, that she has to consider a range of cases that might include a more catastrophic loss, a loss, for instance, of the arm.  She could have said that she did not ‑ ‑ ‑

CALLINAN J:   She has said compared with other cases.  She actually says that she has made a comparison.  You might say – I suppose you do – that those cases are not identified, is that right?

MR KENNAN:   That is so, your Honour.

CALLINAN J:   I understand that submission.  What else could she have said?

MR KENNAN:   Your Honour, she could have said that the leisure activities that he had lost, that is, the riding of the motorbike, the riding of the pushbike – these appear, your Honour, at application book page 8, line 12, where she found that he had “to give up activities such as motorbike riding at weekends and playing social games of golf”, no longer being able to undertake riding a pushbike “with his partner and her children”.

CALLINAN J:   Yes, but she has taken into account that when she says on page 9:

The long segment of video film showing the plaintiff working at various construction sites in October last year confirms that, notwithstanding the restrictions imposed by the permanent impairment –

and restrictions, presumably riding the motorbike and the like –

the plaintiff appears to function well and to use his right arm effectively.

You have to read the whole judgment.  You cannot just be selective about it.  This is a judgment at first instance.  As his Honour the presiding judge has said, it necessarily involves a high impressionistic element.  If you read all the facts, her Honour seems to have had regard to the relevant facts.  She has had regard to countervailing considerations in that passage I have just read to you, what some objective evidence shows.  She says she has compared it with other cases.  Presumably her Honour is sitting there regularly, she hears a lot of other cases.  A case of this kind does not require a full and major treatise in every instance, a court at first instance.

MR KENNAN:   Your Honour, here we say, however, it is in one extreme.

HAYNE J:   No, I am not sure that it is at the extreme in this field of discourse, Mr Kennan.

MR KENNAN:   Your Honour, I concede that but in terms of giving reasons for the ultimate conclusion, she gave no reasons for the ultimate conclusion.  What she had recited before, and the matter your Honour referred to in relation to the video was her observation and conclusion in relation to him being able to use his right arm in his daily work ‑ ‑ ‑

HAYNE J:   I think we understand what you say about this point but what about the Court of Appeal because they are the first grounds you urge in the draft notice about the court deciding for itself.

MR KENNAN:   Yes, your Honour.

HAYNE J:   What do you say about that?

MR KENNAN:   They did not, we say, decide for themselves.  They made reference to ‑ ‑ ‑

HAYNE J:   Do you say they did in this case, though?

MR KENNAN:   They did not.

HAYNE J:   Yes.

MR KENNAN:   I hope I did not leave out the negative, your Honour.  The court in fact deferred to the perceived advantages of the trial judge.  We  also want to point out this, that the legislation talks about the range of possible injuries.  It does not talk about the range of injuries that come before the court.  It is the whole range of possible injuries.

HAYNE J:   The critical question is presented by 134AD, is it not?

MR KENNAN:   It is, your Honour.

HAYNE J:   Section 134AD is an appellate provision which is in a form different from at least several other forms of appellate provision.

MR KENNAN:   Yes, your Honour.

HAYNE J:   In particular, it seems to discountenance any application of House v The King principles.  It seems also to pick up language out of Warren v Coombes, decide for itself.  That, at least as I understood your argument, was then presented as a point of basal principle about what the Court of Appeal is doing in these kinds of case.

MR KENNAN:   Yes, your Honour, that it is ignoring, effectively, 134AD and it is declining to decide for itself and in Warren v Coombes ‑ ‑ ‑

HAYNE J:   Can you explain to me exactly what content you are giving to that provision when you say it is failing to decide for itself?

MR KENNAN:   Because, your Honour, it looked for specific error on the part of judge and it deferred to the judge in terms of the judge’s perceived advantages that the court did not enjoy.

HAYNE J:   So two elements at the moment are put on the table; one, you say 134AD does not require demonstration of error?

MR KENNAN:   No, it does not, your Honour.

HAYNE J:   Right.  That is one element, but the second element is that 134AD does not permit, whether by reference to specialist tribunal or the experience of the County Court generally in these matters, to do otherwise than for the Court of Appeal to set its own standards.

MR KENNAN:   That is so, your Honour, and even, can I point out, that Warren v Coombes said that there was no reason why the ultimate conclusion to be drawn from undisputed facts should be treated as peculiarly within the province of the trial judge and so we say it is that 134AD, particularly in this sort of case, your Honour, where there was no issue as to credit and no issue as to the facts found, there is then no ground for any deference to be expressed to the perceived advantages of the trial judge because all the court is being asked to do is to draw its ultimate conclusion and decide for itself on agreed facts.  It is inconsistent, we say, your Honour, with the statutory obligation to decide for itself to then defer to perceived advantages of the trial judge.

HAYNE J:   Appeals to the Court of Appeal in this field are as of right not by leave, is that so?

MR KENNAN:   That was one of the changes made by section 134, your Honour.

HAYNE J:   It is the consequence, is it, of 134AC that because it is not an interlocutory judgment it goes as of right?

MR KENNAN:   Yes, your Honour.

CALLINAN J:   One can see the point you are making very clearly, I think, at page 37 in the reasons of Justice Eames at the end of paragraph 30, “again more might have been said by her Honour, I am not persuaded” that she has not complied with the “statutory requirement”.  That is not what the section requires at all.

MR KENNAN:   That is so, your Honour, and he also said the trial judge had advantages of the kind mentioned which this Court does simply not enjoy.

CALLINAN J:   There were a lot of other statements, too.

MR KENNAN:   Yes, that is so, your Honour.

CALLINAN J:   There is no doubt that if your point is good you have plenty of bases for saying that, that you can derive from the reasons.  It is your best point, is it not?

MR KENNAN:   Yes, it seems to be, your Honour.  I would be really silly to say no.

HAYNE J:   Very perceptive, Mr Kennan, very perceptive.  Perhaps we might be assisted by hearing from Mr Forrest.

Mr Forrest, we would like to hear you on this 134AD point.  We need not trouble you on the sufficiency of reasons of the primary judge but we would be interested in your submissions on the nature of the appeal and whether the Court followed the statutory mandate.

MR FORREST:   Yes.  The statutory mandate was explained, we contend, properly and adequately in the Barwon Spinners’ Case at paragraphs 35 to 50.  If I could take the Court to that decision.  There was no attack at the hearing of this appeal on whether Barwon Spinners was properly decided on that point.

CALLINAN J:   Are you saying that this is an argument that was presented for the first time here?

MR FORREST:   Yes.

CALLINAN J:   Leave aside that for the moment, let me assume for present purposes that is correct, what do you say about the submission?

MR FORREST:   We say there are two things about the submission.  Firstly, the statute does not require specific error to be identified – that was the first basis – statute does not require to be identified, and this Court ‑ ‑ ‑

CALLINAN J:   I am sorry, the statute - which?

MR FORREST:   The statute, section 134AD does not require identification of specific error and that was acknowledged by the Court of Appeal in Barwon Spinners and by this Court in this decision.  That can be found at paragraph 8, page 29 of the application book, line 1:

As the Court acknowledged in Barwon Spinners Pty Ltd v Podolak, this statutory provision abolished, in the appeals to which it applies, the rule adopted in Mobilio v Balliotis –

that is effectively the House v The King rule –

that, in the absence of specific error, a decision under appeal would be set aside only if it was plainly wrong or wholly erroneous.  However, the Court in Podolak went on to state a number of important propositions applicable to the discharge of this Court’s obligation under s.134AD to “decide for itself”.

So the proposition this Court of Appeal in some way felt that a specific error had to be identified we say is incorrect.  Justice Eames made it clear that it was not necessary.  The second point which is raised is this, is it appropriate for the Court of Appeal to have regard to the advantages that are enjoyed by the trial judge?  We say there is nothing in section 134AD which detracts from the principles of general law stated in Fox v Percy and the line of authority leading up to that.  That is clear, we say, from the statements of principle at paragraphs 35 to 50 in Barwon Spinners in the judgment of Justice Phillips. 

CALLINAN J:   Let me accept that for present purposes, where do we find in the Court of Appeal any independent consideration for itself of the matter, and let me accept everything you say is correct, that ‑ ‑ ‑

MR FORREST:   It was the recitation, we say, at paragraphs 7 onwards of the particular matters considered by the trial judge that we say it is abundantly clear from that the court has considered that material.

CALLINAN J:   That is a repetition of what happened at the trial.

MR FORREST:   Yes.

CALLINAN J:   Then it is followed on page 28, “No specific error is identified in her Honour’s decision.”  Where, apart from that, do I find an independent consideration by the Court of Appeal of the case?

MR FORREST:   Can we take your Honours to paragraph 34 of the decision of the President.  If we go down to, say, line 35.

CALLINAN J:   Let me just read this.  The second sentence, “Like his Honour, I am not persuaded that her Honour was wrong.”

MR FORREST:   If I could read on:

I am fortified in that conclusion by the opportunity that was afforded to us to inspect the scarring for ourselves, and to observe the extent of impairment of function of the arm.  Nothing in that inspection altered my appreciation of the significance of the disfigurement, and the impairment, from the appellant’s point of view.  But nothing I observed suggested that her Honour had erred in the conclusion she arrived at.

CALLINAN J:   That is the scarring. 

MR FORREST:   It is both, the actual function of movement, because what was done was there was a demonstration.

CALLINAN J:   Yes, but was there a demonstration in the Court of Appeal?

MR FORREST:   Yes, there was a demonstration.  Yes, the court saw the scarring.  The appellant went to the court, stood just before the court, and showed the arm and turned it.

CALLINAN J:   To the Court of Appeal?

MR FORREST:   To the Court of Appeal, yes.

CALLINAN J:   Right.

MR FORREST:   We say when the reasons were read as a whole at the Court of Appeal it is clear – perhaps if one goes to paragraph 14 in the judgment of Justice Eames there is a consideration – he had set out the plaintiff’s complaints and they are at paragraph 14.  His Honour noted:

As counsel for the respondent pointed out, the appellant had not received treatment for some four years and his treating surgeon, Mr Bainbridge, reported in May 2002 that the appellant’s fracture had united and that he had been left with some elbow stiffness “but a remarkably good result overall”.  At the time of the hearing in the County Court the appellant was conducting his own business, operating a bobcat and excavator, and was doing very well.  Whilst her Honour accepted the appellant’s evidence that he experienced pain most days and that the restriction in movement of his arm impacted on social, recreational and domestic activities, the severity of those restrictions was a matter which the judge was called upon to evaluate, and to do so by reference to other cases which concerned impairment or loss of function of a dominant upper limb.

CALLINAN J:   Why do you think the judge was puzzled and disappointed as the President said he was at page 41 in paragraph 43?  He really seems to be suggesting that it should be left with the County Court judge.  He says:

There is even greater scope for puzzlement and disappointment when appeal court judges are asked –

to do their statutory duty, in effect.

MR FORREST:   For this reason, your Honour, that ‑ ‑ ‑

CALLINAN J:   He does not like the legislation, is that what that means?

MR FORREST:   No.  What it means, with respect, we say is this, that the Court of Appeal were applying firstly to test the proper test, that is, rehearing the matter, but they are also giving appropriate weight to the advantage enjoyed by a trial judge.  If I can identify those, the trial judge saw the plaintiff ‑ ‑ ‑

CALLINAN J:   But is this not wrong as a statement of principle applicable to the legislation, the last sentence:

That is why we must pay proper regard to the advantages of the trial judge, as delineated in Barwon Spinners, and keep steadily in mind that our focus, having examined the evidence, is on whether the judgment below was wrong.

That is not the statutory test, is it?

MR FORREST:   No, but the starting point, as was explained in Barwon Spinners, is demonstrating error.

HAYNE J:   No, the starting point is the statute.  That is not the common law.  The starting point is 134AD.

MR FORREST:   In Barwon Spinners the court ‑ ‑ ‑

CALLINAN J:   It is the old problem.  With all due respect, we have had it for years under even the Supreme Court Acts, the degree of deference to be accorded to trial judges generally.  I am not getting into that area today but you have a statute here which is specific, absolutely specific.

MR FORREST:   And the Court of Appeal, we say, recognised that.  We say it recognised it and the statement of principles set out, if your Honour goes back to paragraph 8 ‑ ‑ ‑

CALLINAN J:   Yes, but that last sentence contradicts that.  It is a direct contradiction.

MR FORREST:   With respect, paragraph 8 sets out the principles that would be applied by the court.  All the last paragraph did, we submit, was this, point out the advantages.  It was a way of pointing out the advantages which the trial judge had.  In this case it was clear that there were significant advantages.  One was sighting the video.  The Court of Appeal was not shown the video.  The trial judge had the advantage of sighting ‑ ‑ ‑

HAYNE J:   Is that not itself a failure to abide by 134AD where the court is to, “decide for itself . . . on the evidence and other material before the judge”?  Are you saying the court did not decide the appeal on the evidence and other material before the judge?  Is that what you are telling us?

MR FORREST:   No.  It was never suggested to the Court of Appeal by the appellant that it should see a video.  The video was there.  It was the appellant’s role to persuade the court.  It was the appellant’s task to persuade the court there was error below.  That has to be, we say, accepted, your Honour.

HAYNE J:   The appellant was confronted with a stream of authority dating back to Barwon Spinners.

MR FORREST:   Yes, that is correct, and authority which in front of this Court of Appeal was not called into question.

CALLINAN J:   The Court of Appeal knew about the video and chose to ignore it.

MR FORREST:   No, with respect, it did not.  It was never asked to watch the video.

CALLINAN J:   It knew about it.  The record goes before the Court of Appeal.  We get records.  We are expected to read them.

HAYNE J:   And look at balaclavas and overalls this week, Mr Forrest.

MR FORREST:   If the approach the Court is urging upon the Court of Appeal is accepted, as was said in Barwon Spinners, it means the Court of Appeal essentially becomes now a court of first instance.  That is the end result and that is what it was ‑ ‑ ‑

HAYNE J:   That may be good law or it may be bad law, it may be good statute or it may be bad statute but that is the point, is it not?

MR FORREST:   With respect, it is inconsistent with the statement of the second reading speech which, in the second reading speech, indicated that the law itself required that there be consideration of the advantages possessed by the trial judge, as Warren v Coombes had said.

CALLINAN J:   We often see disconformity between second reading speeches and the language of legislation.

HAYNE J:   The audiences are just a tad different, Mr Forrest.

MR FORREST:   Just a tad, your Honour.  Just a tad.

HAYNE J:   Do you say there is a Coulton v Holcombe point here that because the point was not taken in the Court of Appeal that the point should not be open here?

MR FORREST:   Yes, there was no challenge in the ‑ ‑ ‑

HAYNE J:   I understand no challenge but does that lead to a bar against the applicant raising it for the first time here?

CALLINAN J:   Particularly as you seem very well prepared on the point.

MR FORREST:   It is one of the first times I have considered that I have over‑prepared a case, your Honour.  The Coulton v Holcombe point in the sense of facts, no, there is not, but there is this point, that to raise this point now when the Court of Appeal has not had the opportunity to reconsider whether Barwon Spinners was right or wrong and where the Court of Appeal in Barwon Spinners did not have the opportunity to have argument about this point, if Barwon Spinners is read, what was decided was by the Court of Appeal, in effect ‑ ‑ ‑

CALLINAN J:   We might save the Court of Appeal that trouble.

MR FORREST:   Your Honour will be able to avoid that anyway.

CALLINAN J:   Others might say ‑ ‑ ‑

MR FORREST:   Our contention is this, that if it was going to be agitated the proper way to agitate is before a Full Bench of the Court of Appeal because it is legislation that is regularly applied by the Court of Appeal in dealing with ‑ ‑ ‑

CALLINAN J:   What about injustice in this case, though?

MR FORREST:   We say there is no injustice in this case.  One of our points is the end result is not in doubt.  The end result was that this man, whilst he had a nasty injury to his arm, did not satisfy the test and the judge’s reasoning, we say, is impeccable.  Just because she did not go into any greater detail in relation to the impairment, it is like an assessment of damages points.

HAYNE J:   Be it so, it is then passing strange that the Court of Appeal made the extensive reference it did to the experience of County Court judges.

MR FORREST:   With respect, there was nothing wrong with that.  As long as one takes into account that the Court of Appeal was entitled to look at the advantages held by the trial judge the experience – and this Court has made the point – if I might just close on this point ‑ ‑ ‑

CALLINAN J:   Do you know how it reads to me, like a pre‑Fox v Percy intermediate Court of Appeal judgment on facts and I am not at all sure that Fox v Percy has not altered the law or adjusted the law so far in this area.

MR FORREST:   We put our proposition in regards to how it reads.  Can we just point, if we may, to what this Court has said about these type of applications and why we contend it is not appropriate to grant a special leave.  At paragraph 47 in Barwon Spinners there is – from 35 to 50 there is consideration by the consider by the Court of Appeal in Barwon Spinners as to how the section operates in the context of County Court appeals under section 74.  This is said:

In Fleming v Hutchinson; Conroy v Veit . . . Mason CJ, Brennan, and Dawson JJ said –

this was on a special leave application –

In each case the Court must apply the test of “seriousness” by evaluating the plaintiff’s condition and such an evaluation does not depend on any legal principle.  It depends on the opinion of a judge familiar with a range of conditions within which the instant condition occurs.

We are not persuaded that the case truly involves any general principle of statutory interpretation.  As McGarvie J noted at p 67 of the application book:

“The test is to be applied in the context of the provisions of the Act which I have mentioned.  Its application involves a comparison with and an assessment relative to other possible impairments or losses of the body function in question.  Elements of fact, degree and value judgment are involved.”

That is why we contend that it was appropriate for the Court of Appeal to pay regard to what was said by the trial judge because it is, as the presiding judge has said, Justice Hayne has said, an impressionistic set of provisions.

CALLINAN J:   Yes, but it is the Court of Appeal’s impression we wanted, not the trial judge’s.  That is what the statute wants.

MR FORREST:   It is the Court of Appeal’s impression but we say coloured by the trial judge’s findings, as it must necessarily be.  Unless there are any other matters that the Court wishes, they are our submissions.  May it please the Court.

HAYNE J:   Thank you.  Mr Kennan, we would be minded to grant leave in respect of grounds 2(a) and (b) of the draft notice at page 47 of the application book.

MR KENNAN:   Yes, your Honour.

HAYNE J:   We are of opinion that there are insufficient prospects of success in relation to grounds (c), (d) and (e) to warrant a grant on those grounds which I understand to relate to the sufficiency of the primary judge’s reasons.

MR KENNAN:   That is so, your Honour.

HAYNE J:   If there is a grant on grounds (a) and (b) it would require, I think, consequential amendment to the relief you seek in this Court because it would seem to me that the relief you would be confined to would be application to set aside the orders of the Court of Appeal and to remit the matter back to that court, in effect, for it to do again rather than any question of dealing with retrial or any matters of that kind, but those are matters that you might give some attention to.

MR KENNAN:   Yes, thank you, your Honour.

HAYNE J:   It would come here on the expressed understanding that this Court would not itself be asked to undertake the 134AD task that you say, and Mr Forrest denies, that the Court of Appeal has not yet undertaken.

MR KENNAN:   Yes, your Honour.

HAYNE J:   I would have though that the case would be comfortably finished within a day, would it not?

MR KENNAN:   Certainly, your Honour.

HAYNE J:   No doubt it would require a little trudging through some of the authorities on appeals but it starts and ultimately must end in 134AD.

MR KENNAN:   That would be our view, your Honour.

HAYNE J:   Yes.  There will be a grant of leave confined to the grounds stated in grounds 2(a) and (b) of the draft notice of appeal appearing at application book page 47.  The applicant will, of course, have leave to make consequential amendments to the notice of appeal.

MR KENNAN:   If the Court pleases.

HAYNE J:   The Court will adjourn to reconstitute.

AT 11.32 AM THE MATTER WAS CONCLUDED