Gaye (No 1) Pty Ltd v Allan Rowlands Holdings Pty Ltd

[1992] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No 03 of 1992

B e t w e e n -

GAYE (NO 1) PTY LTD

Applicant

and

ALLAN ROWLANDS HOLDINGS PTY LTD

Respondent

Application for special leave

to appeal

MASON CJ DAWSON J

TOOHEY J

Gaye 1 28/8/92

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 28 AUGUST 1992, AT 10.27 AM

Copyright in the High Court of Australia

MR B.J. SHAW, QC:  If the Court pleases, I appear with my

learned friend, MR D.G. ROBERTSON, for the

applicant. (instructed by Stedman Cameron)

MR J.G. LARKINS, QC:  If the Court pleases, I appear with my

learned friend, MR S.R. SOUTHWOOD, for the

respondent. (instructed by Ward Keller)

MASON CJ:	Mr Shaw.
MR SHAW:	If the Court pleases, this application is an

application for leave to appeal from a decision of

the Court of Appeal of the Northern Territory. It

concerns the proper interpretation of section 83 of

the Planning Act of the Northern Territory. The

terms of that section are set out at the top of

page 47 of the appeal book:

(1-) No person shall enter into a transaction

purporting to subdivide land in contravention

of this Part.

Penalty: $5,000

(2) A transaction purporting to subdivide land
in contravention to this Part is void.

There is a definition in the Act of "subdivision" which appears at page 51 of the appeal book:

an activity which involves -

(a) the rendering of separate parts of the

land available for separate occupation or

use -

The question arose by reason of the terms of a

contract, the terms of which are for present

purposes sufficiently set out at pages 42 and 43 of

the appeal book, clauses 5, 6 and 7. Clause 5

provided:

THAT the purchasers shall, at the first

opportunity, arrange for the Vendor's land to

be subdivided -

in a particular way. Clause 6 provided:

THAT on the sealing of the subdivision and

subsequent approval •••.. the Vendor

agrees •.••. to execute a Transfer in fee

simple ..... SIXTY THOUSAND DOLLARS -

Clause 7 provided - - -

Gaye 2 28/8/92

TOOHEY J: Just before you leave clause 6, Mr Shaw, it

speaks of a:

consideration of the sum of SIXTY THOUSAND

DOLLARS ($60,000-00) paid by the Purchasers

pursuant to this Agreement.

When is the $60,000 payable?

MR SHAW: It was paid before.

TOOHEY J:	No, when is it payable under the agreement?
MR SHAW:	The agreement, Your Honour, is in fact set out at

page 15 of the appeal book, and clauses 1 and 2 at

lines 17 and following answer Your Honour's

question. Clause 7 provided:

THAT in the event of a subdivision of the land not being possible then the Vendor agrees to execute an assignable lease in perpetuity of -

part of the land, with a proviso that -

should a lease in perpetuity not be legally

possible then the Vendor will grant to the

Purchasers such assignable lease for the longest term as may be permitted by law of the

Northern Territory.

That clause would seem, in our submission, to be

ineffective since a term of years may be granted

for any length of time provided short of perpetuity

but not one in perpetuity. Precisely how one would

go about granting a lease for one day less than

forever is difficult to discern. So the question

really, in our submission, turns on the provisions

df clauses 5 and 6.

His Honour the Chief Justice who delivered the

leading judgment, at page 54 at the bottom of the

page, took the view that the reasoning in George's

case was conclusive in the circumstances of the

present case.

MASON CJ:	In other words, he was unable to distinguish the terms of this contract from that in George's case.
MR SHAW:	And all the terms of the relevant statutory

provisions.

MASON CJ: Yes.

MR SHAW:  He then sets out, as the Court will see, on

page 55 the terms of one of the relevant sections

in the South Australian provisions. That is in the

paragraph that commences at the top of that page.

Gaye 28/8/92

But he does not set out the terms of the relevant

regulations. When one goes to the passage which he

cites from the Chief Justice's decision at the

bottom of the page there, it will be seen that

His Honour makes the case turn on some provisions

which are not referred to in His Honour

the Chief Justice's summary of George's case,

because His Honour the Chief Justice in George's

case said:

The plain object of the Act and Regulations is to require the owner of any land which it is

desired to sell in allotments to obtain the

approval of the Government Town Planner to the

proposed plan of subdivision, and this object

can only be obtained by reading the

regulations as imposing an obligation to

obtain such approval before any allotment is

sold, for the words "who desires" govern not
only the word "sell" but also the words "offer

for sale, convey, transfer or otherwise

dispose of," -

and then he goes on. So His Honour was clearly

there referring to a provision which had not been

referred to by His Honour in this case. If I might refer the Court to the decision in Braham v Walker,

104 CLR, which is later referred to by His Honour

in this case, in that case at page 377 His Honour

Chief Justice Dixon referred to George's case. At

the top of the page His Honour said:

As an authority against such a

conclusion -

and "such a conclusion" was here that the

provisions of the relevant contract were valid - .

the defendant relied upon the decision of this

Court in George ••••. The facts of George's Case

are not stated very fully in any of the three

reports -

and then he goes on to set them out. Going down to

the bottom of the page about six lines from the

bottom:

In support of the present appeal it is

contended that the Court's decision upon that

defence is an authority governing the

construction of s 568 of the Local Government

Act 1946 (Viet). The answer is that the

statutory as well as the contractual

instruments respectively governing the two

cases are materially different. It is

necessary to use the expression "statutory

instruments" because in George's Case the

Gaye 4 28/8/92

defence depended perhaps less on the statute

than upon regulations made there under.

Section 23 of the Town Planning and

Development Act 1920 (SA) provided that it

should not be lawful for any person among

other things to subdivide any land into

allotments or otherwise or resubdivide any

existing allotment or parcel for building or
any purpose or for any person to offer for

sale or sell or convey transfer or otherwise

dispose of any existing allotment or parcel of

land except in accordance with the Act, an

expression which included the regulations.	A
regulation required that any person desiring to offer for sale or sell etc should cause a

plan to be prepared showing the boundaries and

complying with certain sections of the Act.

Then there are various other provisions. So that

there is a regulation that any person desiring to

offer for sale or sell, and it is plain, in our

submission, that it is on those provisions that the

decision in George's case turned and it has been so

treated by this Court in Braham v Walker.	It
accordingly follows that George's case is a

relevant or inescapable decision for the purposes

of this case only if the provisions of section 83

may be regarded as not materially distinguishable
from a provision which imposes an obligation on

anybody desiring to sell.

MASON CJ:  Mr Shaw, we might hear at this stage what

Mr Larkins has to say.

MR SHAW: If Your Honour pleases.

MASON CJ: Yes, Mr Larkins?

MR LARKINS:  If the Court pleases, my learned friend puts it

that the case concerns the interpretation of

section 83 of the Northern Territory legislation.

We would say rather it is the application of that	legislation to the facts of a very peculiar and
particular contract. That contract provided a
number of things which make it very materially different from the generality of cases. Could I
just suppose that the general case is a case where
there is a sale subject to a condition precedent that the land should be in subdivision at the time possession is to be taken or transfer of title is t9 be effected.

This particular contract was executed at a

time when the vendor of the land, the parcel to be

sold, was not itself the owner of the entirety but

merely the holder of an option in respect of that

land. The agreement on page 15 of the application

Gaye 5 28/8/92

book imposes firstly an obligation on the vendor of

the land to exercise its option to purchase the

land. In consideration of that obligation, the

price of $55,000 is agreed to be paid. In

addition, initially and not subject to any

condition or condition precedent, the deposit of

$5000 is to be paid.

This is not a case where there is any

condition precedent to the operation of the

agreement prior to the sealing of the relevant

plan. The agreement has immediate operation and

effect and, as the last of the two recitals

provides:

the parties hereto have agreed that the

Vendors will sell to the Purchasers a parcel

of land as hereinafter described.

That, in our respectful submission, is not subject to any condition precedent. It is not a case like

Braham v Walker, it is not a case necessarily like

George's case either. It is a case where there is

a particular contract which is unlikely to find

itself repeated anywhere. It is a case where the

legislation under which it is avoided is unique to

the Northern Territory. Section 83(2) has no

parallel elsewhere within Australia that we know

of.

There are other statutory provisions which

expressly provide where there are general

prohibitions of sale of unsubdivided land in the

sense of a sale prior to the sealing of a relevant

plan which expressly provide that conditional

contracts - that is to say, a contract which is conditional on the sealings of the plan, albeit

subsequently - are valid. There are provisions of

that sort. In Tasmania there is a provision that a

breach of the relevant prohibition does not affect

the validity of the contract at all.

DAWSON J: But allowing that the contract-comes into effect

immediately and is not conditional, where is it in

the contract that there is any transaction

purporting to subdivide the land in contravention
of the legislation? All it says is that the

purchaser is to attempt to have the land subdivided

in accordance with the legal requirements and, if

he fails, then there is to be a lease for as 1 ong

as possible.

MR LARKINS:  Yes, but that lease, with respect, itself falls

within the definition of "subdivision" by making

the land available for separate occupation.

Subdivision, with the greatest of respect, does not

necessarily mean a transfer of the freehold title.

Gaye 6 28/8/92

The definition which is set out in the judgment to which my learned friend refers makes that perfectly

plain, that there is no requirement that there be a

transfer as such. It is the making of the land

available for separate occupation. Our respectful

submission is that the provisions relating to

leases do exactly that.	My learned friend raises
the -

DAWSON J: And even that - you see, it is the longest term

as may be permitted by the law of the Northern

Territory so, if what you say is right, the

agreement may not amount to much, but it is hard to

see how it is a transaction purporting to subdivide

land in contravention of the law.

MR LARKINS: Could I just ask rhetorically, Your Honour, why

the question of the longest term is a matter of

consequence because, in our respectful submission,

it is clear that the draftsman of this contract,

which nas been criticized in trenchant terms, had

in mind a provision such as is found in

section 327AA of the Local Government Act of New

South Wales which provides that:

where any land is included in a current

plan -

of subdivision -

that land shall not be disposed of by way of

sale, conveyance, transfer, partition or lease

(other than a lease for a period not exceeding

five years without option of renewal) or be

mortgaged unless the land is a lot or portion

shown in the current plan -

Obviously we would have thought, with respect, that what was intended to be covered by the proviso was

a provision of Northern Territory law equivalent to

that to which I have referred in New South

Wales - - -

DAWSON J: And none exists.

MR LARKINS: - - - which does not exist in fact. That was

the obvious and evident purpose of that section.

So that what the object of clause 7 of the

agreement is is to ensure that the "purchaser" has

available for his use, whether there is a sealed

plan or not, a separate right of occupation of the land, and that then falls within the definition of subdivision which is referred to in the judgment of

- it is in section 4(1) of the Act which:

in relation to land, means an activity which

involves -

Gaye 7 28/8/92

(a) the rendering of separate parts of the

land available for separate occupation or use;

or

(b) the· consolidating of parcels of land - So that what is being done here is immediately and

without a condition precedent to make available for

use for a leasehold interest, maybe. What is

suspended or which may be said to be conditional

under this particular contract is not the providing

of a right to occupy, but merely the particular

form whereby that title is to be assured; that is

to say, whether it is to be a conveyance of

freehold by transfer after the approval of the plan of subdivision, or whether it is to be a leasehold.

But in our respectful submission, this case is entirely unlike the generality of cases such as

where there is a sale which is to be effected in

contravention of the Act if it went ahead

immediately but, if its operation is suspended by a

condition precedent, it is not in breach of the

provisions of the Act.

TOOHEY J: The difficulty with that submission, Mr Larkins,

is that if you look at the Chief Justice's judgment

on page 54 - and I shall not read it - it seems to

me that it is very general in its construction of

the Act, and perhaps you need only read one

sentence. If you look at about line 12:

Agreements could be drawn conditional upon the

Planning Authority's approval of the

subdivision contemplated.

His Honour regards that as in contravention of the

~ct.

MR LARKINS: Could I just say this, Your Honour, that it is

only in the Northern Territory that section 83(2)

is a provision of the law. It is clear that in the

Northern Territory a different view is taken by the

legislature - which view could change - to render

void all conditional contracts. In our respectful

submission, the Court would be wrong in approaching

this case, having in mind provisions such as are

section 327 of the New South Wales Act, which	found in the Sale of Land Act in Victoria or
expressly provide that it is not a breach of the
law to enter into a contract conditional on the
subsequent sealing of, say, a two lot plan of subdivision.

If I could just respectfully set out one of

the background facts of this case, there had

already been litigation before Mr Justice Kearney

Gaye 8 28/8/92

about the actual boundaries. It perhaps
demonstrates the wisdom of requiring sales only by

reference to approved plan so that the parties can

see precisely what it is is the subject-matter

being dealt with.

TOOHEY J:  I appreciate that, but you had suggested before

that perhaps an argument against special leave was

the peculiar nature of the contract. I understand

that, but what I am putting to you is that the

judgment itself goes well beyond the terms of the

contract.

MR LARKINS:  I accept that also, Your Honour, but in our

respectful submission a party ought not to be made

the respondent to an appeal to this Court on the

basis of some more widely expressed views of the

judge in a case where those views were not called

for.

MASON CJ: But, Mr Larkins, did the judgment deal with this

question of lease? In response to the case that is

now put against you, you say "Well, in any event

there is subdivision because the provision for a

lease in clause 7 affected a subdivision and that

is in breach of the statute." , but was that matter

dealt with?

MR LARKINS:	Not as I read the judgment in those terms. learned junior points out that at page 53 of the	My
application book, the question which seems principally to have been argued before the court

was whether there was a transaction or whether

there was merely a prospective transaction. What

the Chief Justice is doing at the top of page 53 at

line 4 is identifying the point at which one can

say there is a transaction which is, to use the

words of the section - if I was using the words of

the section I should get them right.

DAWSON J: Even if it is it has to be a transaction in

contravention of the Act. It is not very well

expressed, but there seems to be an evident desire

to comply with the law in provisos and in other

ways.

MR LARKINS: That, with respect, is not right because of the

fact that the Act deals with subdivision which is

not limited to cases where there is a transfer of

title as such.

DAWSON J:  I appreciate that, but what is said is, "Well, a

lease in perpetuity may not be available, then let

us get the longest that is legally possible.". You

tell us that no lease is legally possible and that

may mean the agreement achieves little. But the

point that was being raised with you: these

Gaye 9 28/8/92

questions were never debated and never dealt with

in the judgment.

MR LARKINS:	Not in this way, if the Court pleases.
DAWSON J:	Not in any way at all, really.
MR LARKINS:	Except that clause 7 was referred to and the court took the view that there was a transaction
purporting to subdivide the land. After referring
to the definition of "subdivision" on page - page 76 my attention is directed to.

MASON CJ: Halfway down the page.

MR LARKINS:  Yes:

then separate parcels of the land will be made

available, one of which will be for the

separate use and occupation of the purchaser

by means of a lease. This provision is in

contravention of Part v.

So that in that judgment of Mr Justice Martin,

His Honour does specifically refer to this point

and obviously to the - - -

MASON CJ:	There may be something at the top of page 54. Following the two sentences that precede that, the
Chief Justice says:

In my view the mischief the Act is directed against is any transaction which, before the

process of subdivision has been carried out in accordance with the Act, purports to subdivide

land.

That seems to be in response to a submission by

Mr Hiley, but perhaps that was related only to

clauses 5 and 6. Yes, I think it was.

MR LARKINS:	The point that we make is that it may be that in an appropriately expressed contract where there
is a condition which operates to suspend the
obligations of that contract until there has been
compliance with the law, the general .principles of
Braham v Walker and cases such as that, of which
there are some others which are referred to, would
have application.

The point that we make is that this is a

unique contract where that argument is really not

available and that, in our respectful submission,

it is an inappropriate vehicle for the

determination by this Court of the extent, if any,

to which such contracts are enforceable having

Gaye 10 28/8/92

regard to the unique provisions of section 83 of
the Northern Territory legislation.

So there are really three matters. Firstly, that in its result the decision is correct;

secondly, the case is not of such general

importance that leave ought to be granted, having

regard to both the provisions of the peculiar

contract itself; and thirdly, the limited

application of the Northern Territory provisions

which are not to be found replicated elsewhere

within the Commonwealth. Those are the submissions

that we would make to resist the application.

MASON CJ: Thank you, Mr Larkins. Yes, Mr Shaw? What do

you say in response to the argument that clause 7

affects a subdivision?

MR LARKINS:  I am sorry, could I interrupt and draw

attention to another passage which I did not have

to my mind. At page 80, line 4, of the application

book in the judgment of Justice Angel:

Notwithstanding this conclusion, the

respondent submitted that the agreement is

saved from falling foul of s83 because it was

not entered into "in contravention of" Part V. Further to this, the respondent submitted that

the agreement is in fact "subservient" or

subject to the operation of the Act and its

requirements, albeit not expressly so.

Evidence of this, so the respondent submitted,

is to be found in the agreement itself,

especially, it was contended, in the

provisions of clause 7 which, it was said

operates to save the agreement in the event an

application be refused by the Planning

Authority.

I cannot accept this submission. In my

view, clause 7 itself contravenes s83 of the

Act, providing as it does for the rendering of

separate parts of land available for separate

occupation or use. Furthermore, as Isaacs J

said in George ••••• it is the "mere fact of
entering into it" (the contract) that attracts

the prohibition, in the present case the

operation of s83. Express or implied terms of

a contract indicating it to be subject to the

provisions of the Act (as in George) or

clauses of a contract providing for

alternatives in the event of planning being

refused (as in the present case) can have no

effect. The instant a contract "purporting to

subdivide land", within the meaning provided

for in the Planning Act is entered into "the

Act (is) already contravened".

Gaye 11 28/8/92

If the Court pleases.

MASON CJ: Yes, Mr Shaw?

MR SHAW:  Might I hand to the Court a copy of the Planning

Act and refer the Court to the provisions of

section 4(2).

MASON CJ: Would this lease not be for more than five years?

MR SHAW:  The proposition was that any lease is a

subdivision.

MASON CJ: Yes, that was the proposition.

MR SHAW: That proposition is incorrect.

MASON CJ: Yes, I follow that from 4(2): step 1.

MR SHAW: Step 2-is Your Honour Justice Dawson's step.

Assuming that there is otherwise a subdivision,

this is the longest term available. There are a

number of other ways of putting it. The second way

is the way I referred to before, namely that

clause 7 may be ignored as ineffective because if

it is to be regarded as a lease in perpetuity, you

cannot have one; if there is the longest term

available for the law and there is not some such

provision as this limiting it, there is no way of

knowing how long that is, so it is ineffective.

The third way of putting it is that clause 7

is operable in any event only in the event of

subdivision not being possible under clauses 5

and 6. So if 5 and 6 are operable, 7 does not

operate, and if 7 does not operate it cannot bring

the agreement down anyway. Fourthly, in our

submission, the effect of section 83 is not to

bring down the whole provisions of any

transaction - it is set out at page 47,

Your Honour - which involve the subdivision of land

or purport to subdivide land, but they only bring

down a transaction in so far as it purports to

subdivide land. So that the ineffectiveness of

clause 7, if it were ineffective, would be quite

immaterial and clauses 5 and 6 could stand

separately. So that we have four answers in

relation to the proposition that my learned friend

has put about clause 7.

MASON CJ: What would be the consequence if the earlier

clauses stood independently?

MR SHAW:  Then they would be enforceable and might in the

end lead to a subdivision or, if they did not,

there might be a breach of contract, in which case

you could sue for damages, or it may be that there

Gaye 12 28/8/92

is no consequence. But the simple effect would be

that if clauses 5 and 6 could not operate and
clause 7 could be severed, the agreement would
operate to the extent it could and to the extent it

could not, it would not operate.

MASON CJ: Would it leave the vendor in possession of the

money paid?

MR SHAW:  On that view it would, Your Honour, yes. So that

in our submission, clause 7 does not provide an

answer to the proposition which is based on

clauses 5 and 6 and, in any case, the approach

which has been adopted by the Court in relation to

clause 7 is precisely the same approach as is

adopted in relation to clauses 5 and 6, namely that

if there is any purpose of subdivision the whole

thing is brought down. That is plainly incorrect,

it is submitted.	So that in our submission,
clause ·7 can be ignored for this purpose.	One has

got to look, as the Chief Justice did, at clauses 5

and 6 and see whether they purport to affect a

subdivision, and in our submission it is plain that they do not unless one reads "purport to subdivide" as having the purpose of ending up with a

subdivision. In our submission, that is an

insupportable construction.

MASON CJ: Were these submissions in relation to clause 7

put to the Full Court, the ones that you are

advancing to us now?

MR SHAW: That, Your Honour, is a question which neither I

nor my learned junior can answer. Mr Southwood says "No" , but what submissions were put about clause 7 I do not know, Your Honour.

MASON CJ:· One of the problems in the case is that if we

take it on, then we seem to be plunged into a

consideration of these submissions that you wish to

make in relation to clause 7, a matter that really

has not been considered in any depth at all by the

Full Court of the Supreme Court.

MR SHAW:  In our submission, first of all I regret to find

that my submissions trouble Your Honour, but

leaving that aside, the way in which clause - - -

MASON CJ: They only trouble me in the sense that I have to

apply my mind to them, Mr Shaw.

MR SHAW:	Your Honour, clause 7 has been treated in the
judgments as part of the whole contract to

which - - -

MASON CJ: Yes, it seems to be a tailpiece of the main

point, in a sense.

Gaye 13 28/8/92

MR SHAW: Yes, it does, and that is sort of thrown in as a

makeweight at the end, if I could put it that way.

Clause 7 does not really seem to have been

developed as a separately fatal clause in itself

and, in our submission, for good reason: because

it is not. So our submission is that the section

is a section which applies in the Northern

Territory generally to important matters in

relation to subdivision of land. It is accordingly

an important matter. The construction which has

been adopted is, in our submission, insupportable

or at least plainly insupportable.

The only reason for refusing special leave, it

is submitted, is because despite what the court

said, there may be an answer which is concealed in

clause 7, because it affects a subdivision,

construing the section properly, and in our

submission the fact that the arguments about that
were not properly developed or fully developed

below is neither here nor there, since it is a

simple matter to develop them.	In our submission,
in any case the answers are plain.	It is not an
answer to the whole case.	It does not purport to

subdivide and even if it did, it would not bring

the whole transaction down. So in our submission,

special leave should be granted.

MASON CJ:	Mr Shaw and Mr Larkins, but cutting Mr Shaw short in the presentation of his case in-chief, we have
really denied you the opportunity of replying to
submissions that he has put in relation to the
clause 7 question. So we think we ought to offer you the opportunity of making such additional
submissions as you think appropriate on that point.

MR LARKINS:  I am grateful to the Court. I did not know

whether I had the temerity to suggest such a

course. My learned friend puts it that the

clause 7 argument was not put forward as a separate

ground of invalidity. Justice Angel plainly did
exactly that at page 80.	Justice Martin also

refers to the matter in the passages to which I

have referred. Our respectful submission is that

what my learned friend is really putting is a
detailed argument or proposing to put on a

construction of a very peculiar contract which will

never again, one trusts, trouble this Court or

indeed any superior court in the country.

MASON CJ: Undoubtedly if this decision stands, I do not

think it is a contract that is going to trouble

courts in the future.

MR LARKINS:  The point that we would make, Your Honour, is

that if the consequences of the particular decision

in this case are not those which the Parliament of

Gaye 14 28/8/92

the Northern Territory desires to have generally

operative and that they see that the reasoning as distinct from the particular decision is of wider

consequence and has an operative effect beyond that

which is intended, then it is perfectly open to the

Northern Territory legislature to adopt a scheme

similar to that which has been adopted in Victoria

in allowing specifically for the sale of

unsubdivided land prior to the sealing of plans

with appropriate protections, for example, the

requirement that the purchase price be paid in

solicitors' trust accounts and the like so that

subdivisional works, the provision of sewerage and

roadways and so on, can be enforced. It is that

sort of reasoning which is behind and underlies, we

would respectfully submit, the statements of policy

by the Chief Justice and, indeed, the reason why

the court might be thought to have taken a very
strict view of the matter.

MASON CJ: Victoria is not the sole repository of wisdom in

relation to provisions of this kind.

MR LARKINS: 

No, there are similar provisions in New South

Wales, I believe. Tasmania is different.
Section 327 of the New South Wales Local Government

Act provides in subsection (3):

Nothing in this section shall be deemed to

render any agreement to sell, let, or

otherwise dispose of any land illegal or void

by reason merely that it is entered into
before an application in respect of the

subdivision has been approved by the

council - - -

MASON CJ:  I think these provisions are fairly common

throughout Australia.

MR LARKINS: Yes, they are.
MASON CJ:	But they have not currently reached the Northern

Territory.

MR LARKINS: Could I just say this - although it is referred

to in the judgments, I am not actually going beyond

that - there was a particular report by

Sir John Nimmo into a particular problem which had

arisen in the Northern Territory, and although the

Chief Justice rejected looking at the report as an

aid to construction, it may historically explain

the unique provisions, because in the Northern

Territory they had a particular problem which was

specifically investigated by an appropriately

qualified person and a report made. Although that

obviously does not govern the construction of the

section, it may underlie the fact that there is

Gaye 15 28/8/92

distinctly different legislative provision in the

Northern Territory. If the Court pleases.

MASON CJ: Thank you, Mr Larkins. The Court will announce a

decision in this matter after the adjournment, that

is at 2 or 2.15, depending on the time to which the

Court adjourns.

AT 11.06 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.15 PM:

MASON CJ: There will be a grant of special leave to appeal

in this case.

MR LARKINS: If the Court pleases.

MR SHAW: If the Court pleases.

AT 2.16 PM THE MATTER WAS ADJOURNED SINE DIE

Gaye 16 28/8/92