Esber v The Commonwealth of Australia

[1991] HCATrans 157

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B16 of 1991

B e t w e e n -

FARAGE ESBER

Applicant

and

THE COMMONWEALTH OF AUSTRALIA

and THE COMMISSION FOR THE

SAFETY, REHABILITATION AND
COMPENSATION OF COMMONWEALTH

EMPLOYEES

Respondents

Application for special leave

to ·appeal

BRENNAN J
TOOHEY J

GAUDRON J

Esber 1 26/6/91

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 26 JUNE 1991, AT 4.59 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:  Your Honour, I appear with my learned

friend, MR J.A. LOGAN, for the applicant.

(instructed by Taylors)

MR R.W. GOTTERSON, QC: If the Court pleases, I appear with

my learned friend, MS M.A. WILSON, for the

respondents. (instructed by Australian Government

Solicitor)

BRENNAN J:  Mr Jackson, we will call on Mr Gotterson.

Mr Gotterson?

MR GOTTERSON:  If the Court pleases, there are two reasons -

one principal reason why we would oppose special

leave and they really have their origins in the

draft notice of appeal which appears at page 121.

It contains two propositions of law. The first is

that the appellant, upon making a request at:

an accrued right -

namely, a right to redemption.	I read from ground
2(a) to which -

section 8(c) and 8(e) of the Acts

Interpretation Act -

applied.	Now, that is the first of the
propositions.	The second as appears in

paragraph (b) is that the effect or:

the combined effect of subsections 127(3)
and/or 129(2) of the Commonwealth Employees
Rehabilitation and Compensation Act 1988

properly construed, was -

in effect

that an application for review ..... be

continued after -

1st December 1988 -
as if sections 46 and 49 of the 1971 Act had
not been repealed.
That really is the second of the propositions.	The
Court will need to have regard to the relevant
legislation, if I may deal with the first of the
propositions.

BRENNAN J:	Do you have copies of it?
MR GOTTERSON:	I understood, Your Honour, that our friends

had prepared a book which - - -

Esber 2 26/6/91

TOOHEY J:  Mr Gotterson, you have taken us to the two

grounds. Are you proposing, in response to the

question of special leave, to seek to demonstrate

that there is no substance in the grounds or is

there some other reason for which you are taking us

to the legislation?

MR GOTTERSON:  It is confined to that and, in fact, the

whole of the opposition to special leave would be

confined to that. There are questions or issues

articulated, I think, in the affidavit in support

that this decision may have implications for other

cases. We cannot challenge that.

TOOHEY J:  You say that the decision below is plainly

correct?

MR GOTTERSON:  Yes. I think the Court has the legislation.

We had some books containing the authorities, if I

could hand those up - three copies of those up.

MR JACKSON:	Your Honour, may I interrupt my learned friend for just a moment just to explain, the books that I
handed to Your Honours contained what seemed to us
to be the relevant extracts from the legislation.

MR GOTTERSON: Confining now to the first ground, namely,

their contention that there was an accrued right to

redemption, the Court will need to look - if I can

call this the extracts book. That is the ones our

learned friends have prepared with the legislation

in it. Page 9 of that contains section 49 of the

1971 Act, and this section is critical because

really it is the basis and the footing on which the
case is put for the appellant. It has these

provisions: it permitted in subsection (1) an

employee to request that·the liability of the

Commonwealth to make further payments under

section 46, and 46 appears at page 7. In fact it
begins at page 6. It confers a right to weekly

payments.

To return to page 9 of the booklet,

section 49(3) provides that when confronted with a

request the Commissioner has to determine whether

there will be a redemption. If he does he has to

fix the lump sum.

The Commissioner's power, in this respect, is

circumscribed as to relevant facts only by

section 49(5), at the bottom of page 9, and the

Court will see there that it may:

make a determination -

in favour of redemption only if it is satisfied as

to the matters set out, (a), (b) and (c), on the

Esber 26/6/91

following page. The point is that even if the

Commissioner is satisfied as to those items, of

course, there is no entitlement to a redemption.

Section 49, the Court will see, does not confer a

right to redemption to a lump sum itself, only a

favourable determination does this, and until there

is a favourable determination, in our submission,

there simply is no right. That might be contrasted

with section 46 which, undoubtedly, confers a right

to weekly payments. Our submission then is -

BRENNAN J:	Does 49 confer a right to consideration of his application?
MR GOTTERSON:	Yes. That undoubtedly is so and, in our

submission, that right is continued by

section 129(2) of the 1988 Act which appears in the

booklet at page 28. That is a right to have any
proceedings before the Administrative Appeals

Tribunal continued. Our point would be that that

subsection confers the continuance - - -

BRENNAN J: But that is proceedings before the AAT?

MR GOTTERSON:  Yes.

BRENNAN J: Section 49 is not an AAT provision, is it? It

is a Commissioner provision?

MR GOTTERSON: Section 49 is a Commissioner provision and

the -

BRENNAN J: What is it that continues the right of the

employee to considerati6n of his request for

redemption, if anything?

MR GOTTERSON:  No. Section 49 does not confer any right to

redemption whatsoever. All that may be done -

BRENNAN J:  A right to consideration of his application for

redemption?

MR GOTTERSON:  Yes.

BRENNAN J: Is there anything which continues that in the

new Act?

MR GOTTERSON: All that is continued, in our submission, by

the new Act is proceedings which are commenced in

the Administrative Appeals Tribunal. So, in other

words, if he has applied for a determination and

the determination goes against him, if he has

referred it to the Administrative Appeals Tribunal

under 129(2), those proceedings are continued. But

that does not answer the question whether the 1971

Act is to continue in respect of it.

Esber	4	26/6/91
TOOHEY J:	I have just had some trouble with this.	It is

not an easy statutory framework to find your way

around, Mr Gotterson, but I thought what the

employee was saying was that he had sought a

redemption, the Commissioner had determined that

against him at some stage, but the 1971 Act gave

him a right to seek, once again, a redemption and

that that continued and was not lost by the

enactment of the later legislation. But I must

admit that does not quite square with the ground of

appeal which - - -

MR GOTTERSON:  No, it does not. We really have addressed

the grounds of appeal which the Court will notice

contain the contention and, I suppose, I am
confining my remarks to that. But what is the

accrued right preserved by sections 8(c) and 8(3),

and I refer to 121 of the appeal book, is a right

to redemption, not a right to consideration, not a

right to a hearing on a particular basis. They put

it as high as -

an "accrued right" -

called redemption. In our submission, that simply
cannot be so because at 1 December 1988 there had

been no determination under section 49 conferring

any right to redemption.

TOOHEY J:  Does the respondents say that - and I took you to

be saying a moment ago that the applicant is in no

worse position under the current legislation than

he would be had his rights under the 1971 Act been

continued? ·

MR GOTTERSON:  No, he is in a worse situation under the

current legislation because for his particular

circumstances, having regard to the level of weekly

payments he is getting, under the 1988 legislation

he cannot get a redemption. So, to get a
redemption, to get a lump sum now, he has got to

put his case on a continuation, or a continuance of	the 1971 legislation. But, as I say, I really have
confined the submission on this point to a
submission that there simply was no accrued right
to a redemption at 1 December.

TOOHEY J:  Does the respondent contest that there is an

accrued or continued right to seek a redemption

under the 1971 Act?

MR GOTTERSON:  Yes. The contention, from our side, is that

the framework of the transitional provisions is

that all injuries, both after and before

1 December 1988, are henceforth to be compensated

for under the new legislation, except to the extent

that Part X of which - that is to say, the

Esber 5 26/6/91

transitional provisions provide otherwise, and one sees that from section - our friends in their book

have included the whole of the transitional

provisions beginning at page 22 at section 123 and

following on to the next page, section 124, the

first subsection substantiates the proposition that

I have just made.

TOOHEY J:  Can I just ask you one other question,

Mr Gotterson? Would it be right to say that

Justice Lee's decision goes no further than to

uphold the entitlement of the applicant to have the

questions of redemption considered under the 1971

Act?

MR GOTTERSON:  I think that probably states it. He, if I

may take the Court to it - - -

TOOHEY J:  I just wanted to try to understand how the expression -

"accrued right" ..... to redemption -

appears in ground 2(a) of the grounds of appeal,

and whether in fact it means what it says or

whether it means "accrued right" to seek a

redemption?

MR GOTTERSON:	I cannot answer that.
TOOHEY J:	It is probably unfair to ask you that question.

MR GOTTERSON:  Yes. Mr Justice Lee put his reasons really

on this footing as appears from 87 of the record,

at about line 5:

By instituting the proceedings for review,

Esber acquired an accrued right under the 1971

Act.

He then perhaps took that a little further at

page 89, about line 4 or perhaps the first line: Until the commencement of the 1988 Act

Esber, having instituted an application for review before 1 December 1988, had a right to

have the determination made on 29 October 1987

under the 1971 Act reviewed or reconsidered by

the Tribunal to ensure that it was a

determination properly made under the 1971

Act.

So, he probably puts it on a basis·other than that for which the notice of appeal contends, I must

concede that.

Esber 6 26/6/91

But we would challenge his proposition, at

page 87, that:

By instituting the proceedings for review,

Esber acquired an accrued right under the 1971
Act.

And our contention has its footing first in the decision of the Privy Council which is at tab 5 of

this larger book which we have handed up. We take

the Court to page 922, at about point 4. In that

case a legislation in Hong Kong concerning Crown

leaseholds provided that a party might apply, in

effect, to redevelop and, if he needed, to remove
tenants. Those tenants who might be affected could
petition the Governor-in-Council and, in any event,
there was some intervening legislation which

affected, or might have affected, the situation.

And it is at about point 3 that we would take up

what Their Lordships said. They say:

This part of the provisions in paragraph (e)

of section 10 does not and cannot operate

unless there is a right as contemplated in

paragraph ( c) .

The sections spoken of are the provisions of the

Hong Kong ordinance, or Hong Hong interpretation

ordinance which has parallels with the Australian

equivalent legislation. They continue:

It may be, therefore, that under some repealed

enactment a right has been given but that in

respect of it some investigation or legal

proceeding is necessary. The right is then

unaffected and preserved. It will be

preserved even if a process of quantification

is necessary. But there is a manifest

distinction between an investigation in

respect of a right and an investigation which

is to decide whether some right should or

should not be given.	Upon a repeal the former
is preserved by the Interpretation Act.	The
latter is not.

That passage was affirmed, subsequently, by the

Privy Council in a case, on our friend's list,

called Free Lanka Insurance Co Ltd v Ranasinghe at

page 552, and was adopted by Mr Justice Gibbs in a

case on our list, in the book I think it is a case

at tab 3, Mathieson v Burton, 124 CLR 1 at page 23.

But perhaps the best exposition of it, for our

purposes, is to be found in a decision of the

Full Court of Victoria in Robertson v City

of Nunawading, which is at item 9 in our book.	If
we could invite the Court to look at page 825

Esber 26/6/91

towards the very bottom of the page, at about

line 50:

The mere locus standi of a member of the

community to take advantage of an enactment is

not a right within the principle being
discussed, for otherwise there could be no

effective repeal or amendment of any such

enactment.

TOOHEY J: But is that to come to grips with what the

applicant is saying -and I say that subject to what
the ground of appeal is really meant to enunciate,

but let us take the alternative, that it is not a

right to a redemption but a right to have the

redemption reconsidered, redemption having earlier

been sought and being refused. Now, if that is the

situation, do any of these decisions really strike

at that as an accrued right. Those decisions speak

of, as it were, a right to approach the court or a

tribunal for some purpose, but what I understand,

at least Mr Justice Lee's judgment to be saying is that there was an accrued right, namely a right to

have the Commissioner reconsider his earlier

decision to reject redemption. Is that a fair

assessment of the situation?

MR GOTTERSON:  Yes, I understand, I think, him to be saying

that, but the point that we would take issue with

is that there simply is - though he may refer the

matter to an Administrative Appeals Tribunal, it
must, in due course, consider the matter according

to law at the time of its consideration and one

must then look to the law then to find out what it

may or may not do.

TOOHEY J:	Is that right? I mean if, at the time of the repeal of the 1971 Act, the applicant had a right
to seek reconsideration by the delegate or whoever
it is, is that lost by a repeal of the then law?

MR GOTTERSON:  In our submission, it would be because all

that was accrued, if anything, was a right to have

proceedings in the tribunal continued. But that

did not carry with it a right to a redemption under

the terms of the 1971 legislation.

TOOHEY J:  No, I was not suggesting that it did, I was

querying it on the basis that there was a right to

seek a redemption, not a right to have a

redemption.

MR GOTTERSON:  Yes. There was but a right to seek a

redemption and that right, if you like, was

proceeded, or taken up by proceedings in the

tribunal which by the provisions of the Act were

continued after 1 December 1988. But it still

Esber 8 26/6/91

leaves without any foundation, in our submission,
or a submission that the 1971 legislation will

continue to apply or govern it.

TOOHEY J: Yes, thank you.

MR GOTTERSON:	And the other point that we wanted to take the Court to in part has been touched on, that was
that the scheme of the transitional provisions really leaves no scope for an argument that the
1971 legislation continues, or would continue to govern this particular reference to the tribunal.
I have already referred the Court to section 124(1)
which applies the 1988 Act subject to Part X,
though it does not appear in this small book. I can inform the Court it appears in our book that
sections 14 and 19_of the 1988 Act confer rights to
weekly compensation and section 30, which appears
at page 20 of this book, obliges:

the Commission -

to determine whether a liability -

to make weekly payments -

is to be redeemed.

BRENNAN J:  What section is that?

MR GOTTERSON: Section 30, if the Court pleases, beginning

at page 20 of the small book. The Court can see

there that it is confineq to instances where:

the Commission is liable to make weekly

payments under section 19, 20 or 21.

As we have mentioned to the Court, this Act of 1988

does not provide for redemption for a person in the

position of Mr Esber, thus the position is that

unless Part X operates to continue sections 46

and 49 of the 1971 Act beyond 1 December 1988 to a

case such as his, in our submission, the tribunal

may not after 1 December 1988 make a determination

for redemption.

BRENNAN J: Why is that? What was the factual reason which

excluded him from redemption?

MR GOTTERSON:  It really amounts to this, that the scheme in

the transitional provisions, in our submission,

excludes it because when one reads these sections,

or takes them into consideration, they really leave

no scope for argument that sections 46 or 49 are to

have effect beyond 1 December 1988.

Esber	26/6/91
BRENNAN J:	Did not the applicant fall within section 30 of the new Act?
MR GOTTERSON:	He did not, Your Honour; yes, he did not.
BRENNAN J:	I see.
MR GOTTERSON:	That is his dilemma, that is the problem. We

have already drawn the Court's attention to

section 124(1). We would point out that

subsection (2) - - -

GAUDRON J:	Where is section 124 again?
MR GOTTERSON:	I am sorry, page 23 of this little book.

Section 124 gives the new Act an application to pre and post injury. Subsection (2) says, in effect,

or places a qualification that:

compensation under -

the 1988 Act is not payable for injury -

if compensation was not payable -

under the prevailing Act for it.

GAUDRON J: But that does not talk about redemptions though,

does it?

MR GOTTERSON:  If I may take the Court to it.

Section 125(1) provides that payments of compensation under a repealed Act made before

1 December 1988 are deemed, in effect, to be made

under the corresponding provisions in the 1988 Act,

and that provision is necessary, really, to prevent

a doubling up. It acknowledges that the 1971 Act

has gone and that it is introducing a scheme to

apply to accidents before 1 December 1988 and

afterwards and it is, in effect, providing that you

may not double up now that there is a new scheme

and make a claim under the new scheme for your

pre 1 December 1988 injury for which you have
already received compensation.

Your Honour Justice Gaudron asked me about redemption. It is section 125(2). It, likewise,

provides for redemption of payments.	We would ask
the - - -

GAUDRON J: That have been made?

MR GOTTERSON:  Yes, and made before 1 December 1988.

GAUDRON J: But if anything deals with redemptions that have

not been made and are the subject of an application

Esber 10 26/6/91

which has got some life in it, for whatever reason,

it has to be section 128, does it not?

MR GOTTERSON: Section 128, in our submission, really sounds

a death knell for the applicant in that - - -

GAUDRON J: But is there anything else that in terms is even

capable of dealing with - - -

MR GOTTERSON:  In our submission, there is not. Our friends

seek to enliven a combination or individually some

subsections of other provisions, namely 127(3) and

129(2) but, in our submission, they do not get

there. The problem for them with 128 is that it

provides that:

Any liability of the Commonwealth ..... to pay

compensation or make any other payment to a

person under any provision of -

a repealed -

Act shall, to the extent that it had not been

discharged before the commencing day, be taken

to have been incurred by the relevant

authority on that day - - -

GAUDRON J: But even so your problem there is that there was

no liability, as such, on your argument?

MR GOTTERSON:	Yes, there was no liability.
GAUDRON J:	And so nothing in terms excludes the redemption

provisions being applied to an application for

redemption that still has some life in it?

MR GOTTERSON:  The redemption provisions under the 1971

legislation?

GAUDRON J: Yes, treating an application as still having

some life in it?

MR GOTTERSON: Yes, there is no provision which deals with

specifically with an application in that situation.

Our submission is, however, that when one takes

into account provisions such as 124(1) and 128

which is, really, on a footing that any liability

under a repealed Act becomes a liability under the

new Act, there was no basis for submitting or

saying that there are any payments under the 1971

Act to be redeemed because what the 1988 Act does

is do away with them altogether.

TOOHEY J: So, does that mean then that a person who has

been receiving compensation under the 1971 Act and

receiving payments in excess of $50 a week has, in

effect, no entitlement to redemption?·

Esber 11 26/6/91

MR GOTTERSON:  He will have his entitlement to - as the

1988 Act provides for weekly payments to his

situation but in regard to the future the answer

is, no.

TOOHEY J:  It would appear then to be a deliberate policy to limit the redemption of weekly payments?

MR GOTTERSON: It must, one can only assume that. If the

Court pleases, they are our submissions.

BRENNAN J: Yes, thank you. Mr Jackson?

MR JACKSON:  Your Honour, could I just indicate the bases

upon which we make out the case and I need to say

just one or two things very quickly about the

facts. The applicant was a person who had applied

for determination under the terms of section 49 allowing redemption. That was refused, refused

before the new Act came into force. The terms of

section 49(6) refers, specifically, to a proceeding

under Part V and whilst Part Vis not in the

booklet that Your Honours have, it contemplates a

review of such a decision by the Administrative

Appeals Tribunal.

Now, in the present case, an application for

1988 Act came into force.

review of the decision by the Administrative the

BRENNAN J: So, the application had been made for review?

MR JACKSON:  Yes, Your Honour. An application was made to

the AAT and was pending at the time when the Act

came into force. Now, Your Honours, if one goes

from that - and, in fact, Your Honours, it

continued an the decision of the Commissioner was

set aside and the amount for redemption fixed.

That, of course, was after the new Act came into

force.

But, Your Honour, the question is what

happened to the application to the AAT? The short

answer, or the first short answer any way, in our

submission, is that one goes to section 129(2) at

page 28, which says:

Where the Commonwealth is a party to any

proceedings relating to any matter arising

under the ..... 1971 Act (including proceedings
under Part V of the 1971 Act), being

proceedings instituted but not completed

before the commencing day, those proceedings

may be continued.

Esber 12 26/6/91

GAUDRON J: That does not take you the whole distance

though, does it?

MR JACKSON: Your Honour, in my submission, it does. It

says, "those proceedings". Now, it does not say

"the proceedings". It says "those

proceedings"which are proceedings to review the

determination under the 1971 Act.	Your Honour, it
could have been fuller.

GAUDRON J: Yes.

MR JACKSON: There is no doubt about that, but it goes far

enough, in our submission, and that it does one

sees from an indication in section 127, and could I

take Your Honours to that for just a moment.

Your Honours will see, first of all and somewhat

intelligibly - at first - from subsection (3), that

it says:

Where a determination or action referred to in

subsection (2) is, or has been, varied by a

court or a tribunal, subsection (2) has effect

in relation to that determination or action as

so varied.

Now, Your Honours, what it is obviously talking

about is a determination made after the 1988 Act

came into force, of course, but what it does is 1:,0

say that such a determination has effect in

relation to the determination as so varied. What

the determination that is being varied is described

as being, Your Honours, appears from the third line

of subsection (2) and that is a determination:

having effect immediately before the

commencing day.

Now, Your Honours, what one would think is that the

operation, or the intended operation of 129(2), bearing in mind a provision of that kind, is to

indicate that the determination made by the

tribunal after the new Act comes into force is to

be a determination to replace, but on the same

basis as, the earlier determination, that is, one

immediately before the commencing day, that is, one

having regard to the law, in effect, before that.

Now, Your Honours, that is the first basis we put

the case on.

The second basis is pursuant to the terms of the Acts Interpretation Act and Your Honours I do not propose really to develop the argument unless

Your Honours wish me to on that, except to say that

there is no doubt that in respect of the provisions

of section 8 of the Acts Interpretation Act which

Esber 13 26/6/91

Your Honours will see at page 1, that

subsection (c) says that:

unless the contrary intention appears the

repeal shall not ..... affect any right -

et cetera -

accrued or incurred under any Act so

repealed -

and I will come back to that, Your Honours, and

then paragraph (e) -

affect any investigation ..... in respect of any

such right ..... any such investigation -

et cetera -

may be instituted continued or enforced ..... as

if the repealing Act had not been passed.

Now, Your Honour, the question is was there a

right? Now, it is all right to say, in a sense,

that under section 49 what you have is a right or

you have an ability, if I could put it neutrally,

to have the Commissioner consider your claim. That

is sufficient, in our submission, to be a right.

But we would go a little further and say that the

Commissioner does not have an untrammelled

discretion to be exercised by reference to whim or

caprice or just his view of things, there are

distinct criteria laid down in the Act and what we

have is a right to have that application determined

in accordance with the criteria, and

Your Honours - - -

TOOHEY J: But then ground 2(a) is unfortunately worded, is

it not?

MR JACKSON: It is in one sense, Your Honour, I take

Your Honour's point. What it perhaps might say is

a right to have it considered, for example, but

what was really being said was that, in the factual circumstances there was no basis upon which - there was not in fact a right to have a redemption by

decision of the relevant person.

Now, Your Honours, as to section 8, could I

take Your Honours - - -

BRENNAN J:  What was the right upon which section 8

operated?

MR JACKSON:  Your Honour, the right on which section 8

operated was the right to have the Administrative

Appeals Tribunal determine, in accordance with

Esber 14 26/6/91

section 49, the applicant's entitlement to

redemption, if I could put it that way. We would

take it a stage further, Your Honour, and say that the determination by the AAT was one which, in the

circumstances, should have resulted, as in fact it
did, in a determination in his favour and in that

sense he had a right to redemption. That is what

we are seeking to convey by it, Your Honour.

Your Honours, could I say that such a right -

that the observations of Justice Gibbs in a case to

which I will come in just a moment, indicate that

it is clear that the right which is preserved may

be one which, itself, requires some quantification

or something alone those lines. Could I take

Your Honours just to one passage and that is to

Mathieson v Burton, (1970) 124 CLR 1. It is No 3

in the book the Commonwealth has given,

Your Honours. The page is;Page 23, and after

referring to Ho Po Sang, at· the bottom of the page,

His Honour said:

That section -

speaking of the New South Wales provision -

in referring to a right acquired or accrued

does not preserve a power to take advantage of

an enactment assuming that that may properly

be described as a right ..... and does not apply

where there is merely a hope or expectation

that a right will be created ...... but it does

protect anything that may truly be described

as a right, ttalthotigh that right might fairly

be called inchoate or contingent".

And, Your Honours, that goes on to the next page.

Now, Your Honours, it is no doubt a question of construction, perhaps, of section 49 what

discretion it confers, but it is a discretion to be

exercised according to law, in our submission and,

at the least, the applicant had a right to have the

Administrative Appeals Tribunal consider the

application according to law and it was a right to

have a determination of his right in the same

regard. Your Honours, that is the - - -

BRENNAN J: Are you content to leave your grounds of

-appeal 2(a) in the form in which it stands?

MR JACKSON:	Your Honour, I think, in the light of what has been said, I would seek leave to amend it slightly,
but I wondered if I might, Your Honours, perhaps
have an opportunity to do that in a little more
considered fashion because I have not myself given
consideration to that particular point. But if

Esber 15 26/6/91

Your Honours were otherwise minded to grant leave

to appeal, could I have leave to amend that, as it

were, in terms of the correspondence?

BRENNAN J: If you get a grant of special leave, Mr Jackson,

you can do it as you may be advised but you may

understand from the correspondence that the Court

is not content with the formulation of it in its

present form.

MR JACKSON:  Your Honour, I take Your Honour's point.

Your Honour, those are our submissions.

BRENNAN J:  Mr Gotterson?

MR GOTTERSON: Just briefly: really our friends are seeking

to engraft on to a right to have a hearing a

further right to have a determination as if the

1971 legislation continued. The problem with that

is that there is simply is no right. It is, at

1 December 1988, but a hope or an expectation that

the tribunal will do something and no more, and

they cannot, by saying that there is a right to

have proceedings continue, incorporate within that

a right to have a determination as if the 1971

legislation continued. They are our submissions on

that point.

BRENNAN J:  The Court will grant special leave in this

matter. Special leave is granted accordingly.

AT 5.45 PM THE MATTER WAS ADJOURNED SINE DIE

Esber 16 26/6/91